#23921, 23986-aff in pt, rev in pt & rem-ERICKSON, Circuit Judge 

2007 SD 11

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

#23921 

LEAH D. GLOVER, Plaintiff, 

 v. 

JERITY E. KRAMBECK, Defendant and Appellant, 

 v. 

JOSHUA MACER, Defendant and Appellee. 

* * * * 

APPEAL FROM THE CIRCUIT COURT 

OF THE FOURTH JUDICIAL CIRCUIT 

MEADE COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE JEROME A. ECKRICH 

Judge 

* * * * 

#23986 

JERRY A. KRAMBECK, Plaintiff, 

 and 

JERITY E. KRAMBECK, Plaintiff and Appellant, 

 v. 

JOSHUA MACER, Defendant and Appellee. 

* * * * 

APPEAL FROM THE CIRCUIT COURT 

OF THE FOURTH JUDICIAL CIRCUIT 

BUTTE COUNTY, SOUTH DAKOTA 

* * * * 

HONORABLE JOHN W. BASTIAN 

Judge 

* * * * 

KAREN PAIGE HUNT and 

THOMAS E. BRADY of Attorneys for appellant 

Brady Pluimer 

Spearfish, South Dakota 

THOMAS G. FRITZ and 

CATHERINE M. SABERS of 

Lynn, Jackson, Shultz & Lebrun Attorneys for appellee 

Rapid City, South Dakota Joshua Macer. 

* * * * 

 CONSIDERED ON BRIEFS 

 ON AUGUST 28, 2006 

 OPINION FILED 1/17/07 
#23921, 23986 

ERICKSON, Circuit Judge 

[¶1.] This decision consolidates two separate appeals from two different cases 

in adjoining counties. The cases were considered by different circuit court judges and 

arose from a single car accident. A Meade County case involving Jerity Krambeck's 

(Krambeck) insurance carrier was settled and dismissed with prejudice. When 

counsel for a Butte County case brought by Krambeck moved to set aside that 

dismissal, the motion was denied. The Butte County case was then dismissed on the 

grounds of res judicata. We affirm the denial of the motion to set aside the Meade 

County dismissal and reverse and remand the Butte County dismissal granted on the 

grounds of res judicata. 

FACTS 

[¶2.] On October 9, 2000, Krambeck was driving a car owned by her father on 

I-90 with passengers Leah Glover (Glover) and Josh Macer (Macer). Macer grabbed 

the steering wheel from the backseat causing the vehicle to go into the right-hand 

ditch. Krambeck attempted to correct the vehicle but lost control and the car rolled 

over. 

[¶3.] In September 2003 Glover sued both Krambeck and Macer in Meade 

County asserting their joint negligence caused her personal injuries. At the time the 

lawsuit was filed, Krambeck was in army basic training. She waived her right to 

stay the proceedings and the case advanced. Krambeck's insurance carrier hired 

attorney Reed Rasmussen (Rasmussen) to represent her interests under the 

insurance policy. Rasmussen communicated with Krambeck's mother concerning the 

case. Krambeck and Macer filed cross-claims against each other for contribution and 

indemnity. 
#23921, 23986 

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[¶4.] That same fall attorney Thomas Brady (Brady) brought an action 

against Macer in Butte County on behalf of both Krambeck and her father for 

personal injury and damages to her father's automobile. Krambeck herself had no 

contact with attorney Brady until May 2005. 

[¶5.] Krambeck was discharged from the army in February 2004. She 

immediately began communicating with Rasmussen. In a deposition on June 1, 

2004, involving the Meade County case, Krambeck answered questions concerning 

her personal injuries although no claim for them had been made in the action. The 

Meade County case was settled and on June 24, 2005, an order was entered 

dismissing the action on its merits with prejudice. 

[¶6.] Four days later attorney Brady learned of the dismissal of the Meade 

County action. Surprisingly this was the first time either Brady or Rasmussen was 

made aware of the other's case.1

[¶7.] One month later Macer moved to dismiss the Butte County case citing 

the dismissal of the Meade County case and arguing that the dismissal was res 

judicata. On June 28, 2005, Krambeck moved to set aside the dismissal of the Meade 

County case by seeking relief from the judgment under SDCL 15-6-60(b). This 

motion was denied. Thereafter, Macer's motion to dismiss the Butte County case was 

granted. Krambeck appeals both decisions raising the following issues: 

Whether the trial court in Meade County abused its 

discretion when it denied the motion for relief under SDCL 

15-6-60(b). 

1. It is surprising because this is an automobile accident case involving the South 

Dakota Financial Responsibility law mandating liability coverage for all 

drivers. It also involves claims which may put the insurance carrier's attorney 

in conflict with the customer and require the hiring of independent counsel. 
#23921, 23986 

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Whether the trial court in Butte County erred in granting 

the defendant's motion to dismiss based on res judicata. 

ANALYSIS AND DECISION 

ISSUE ONE

[¶8.] Did the trial court in the Meade County case abuse its discretion 

in denying Krambeck's motion for relief under SDCL 15-6-60(b)? 

[¶9.] "'The decision to grant or deny a motion under SDCL 15-6-60(b) rests 

with the sound discretion of the trial court and will not be disturbed on appeal unless 

there has been an abuse of discretion.'" Lowe v. Schwartz, 2006 SD 48, ¶ 8, 716 

NW2d 777, 779 (quoting Walsh v. Larsen, 2005 SD 104, ¶ 6, 705 NW2d 638, 641). 

"An abuse of discretion consists of 'a discretion exercised to an end or purpose not 

justified by, and clearly against, reason and evidence.'" Schwartz v. Palachuk, 1999 

SD 100, ¶ 16, 597 NW2d 442, 446 (quoting Hrachovec v. Kaarup, 516 NW2d 309, 311 

(SD 1994)). The test for finding an abuse of discretion is "'whether we believe a 

judicial mind, in view of the law and the circumstances, could reasonably have 

reached the conclusion.'" Hrachovec, supra at 311 (quoting Dacy v. Gors, 471 NW2d 

576, 580 (SD 1991)). 

[¶10.] A motion under SDCL 15-6-60(b) can be granted only when exceptional 

circumstances exist. Interest of D.G., 2004 SD 54, ¶ 7, 679 NW2d 497, 500. "'The 

purpose of Rule 60(b) is to preserve the delicate balance between the sanctity of final 

judgments and the incessant command of a court's conscious that justice be done in 

light of all the facts.'" Reaser v. Reaser, 2004 SD 116, ¶ 16, 688 NW2d 429, 434 

(quoting Divich v. Divich, 2002 SD 24, ¶ 8, 640 NW2d 758, 760). 
#23921, 23986 

-4- 

[¶11.] Macer contends that Krambeck's motion for relief was not made in a 

reasonable amount of time as required by the statute. Under the circumstances of 

this case, SDCL 15-6-60(b) allowed the motion to be made within one year after the 

order of dismissal was entered. The motion for relief was filed approximately five 

months after the dismissal was ordered. The trial court did not consider this 

argument in its decision and nothing in the record indicates that the delay was 

unreasonable. Macer also contends that the five month delay was unreasonable 

because there was a lack of compelling factors justifying such a delay. However, 

compelling factors are not a requirement. In Rogers v. Rogers, 351 NW2d 129 (SD 

1984) this Court implicitly upheld a six month delay without any evidence of 

compelling factors (cited with approval in Clarke v. Clarke, 423 NW2d 818, 821 (SD 

1988)). 

[¶12.] Krambeck argues that the trial court erred in denying her relief under 

SDCL 15-6-60(b)(1) citing mistake, inadvertence or excusable neglect. Her argument 

is that her presence in basic training at the beginning of the two lawsuits, her limited 

involvement with them during that time, her parents' lead in prosecuting the 

lawsuits, and her young age and lack of experience with lawsuits all contributed to 

her mistake, inadvertence or excusable neglect in failing to inform either lawyer of 

the existence of two lawsuits and her lack of understanding of the full effect of 

settling the Meade County case. 

[¶13.] Under these conditions it was reasonable for the trial court to find that 

no exceptional circumstances existed. The trial court noted that Krambeck knew of 

the existence of both lawsuits and the representation by two lawyers, that she was a 
#23921, 23986 

-5- 

competent adult and that she had the means to make one attorney aware of the 

other. 

[¶14.] Krambeck's service in the armed forces is indeed honorable, and it is 

understandable that while she was serving her communication with the civilian 

world was more difficult. However, she waived her right to be relieved from this 

hardship. Furthermore, she was discharged in February 2004 and the case was not 

settled until January 24, 2005. During this eleven month period she communicated 

with attorney Rasmussen about the Meade County case several times. Additionally, 

she was aware of attorney Brady's representation in the Butte County case. Despite 

her knowledge, she gave no explanation for not communicating with Brady until May 

2005 or for not making Rasmussen aware of the Butte County case or of Brady's 

involvement. 

[¶15.] The trial court's denial of the motion to set aside the Meade County 

dismissal is affirmed. 

ISSUE TWO 

[¶16.] Did the trial court in the Butte County case err in granting 

Macer's motion to dismiss based on res judicata?

[¶17.] The applicability of the doctrine of res judicata is a question of law 

examined de novo. Wells v. Wells, 2005 SD 67, ¶ 11, 698 NW2d 504, 507. "'The 

doctrine of res judicata serves as claim preclusion to prevent relitigation of an issue 

actually litigated or which could have been properly raised and determined in a prior 

action.'" Barnes v. Matzner, 2003 SD 42, ¶ 16, 661 NW2d 372, 377 (quoting Black 

Hills Jewelry Mfg. v. Felco Jewel Ind., 336 NW2d 153, 157 (SD 1983) (emphasis in 

the original). 
#23921, 23986 

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[¶18.] "'For purposes of res judicata, a cause of action is comprised of the facts 

which give rise to, or establish, the right a party seeks to enforce. . . . [T]he test is a 

query into whether the wrong sought to be redressed is the same in both actions.'" 

Id. (ellipsis in original). 

[¶19.] The Butte County trial court ruled that while Krambeck's father could 

pursue his claim for property damage, Krambeck could have sought recovery for her 

damages by way of a cross-claim in the Meade County action pursuant to SDCL 15-6-

13(g) and SDCL 15-6-18(a). The court then ruled that Krambeck was barred from 

raising the issue in a separate action. Krambeck argues that this holding makes all 

cross-claims compulsory contrary to the permissive language in SDCL 15-6-13(g) 

(cross-claim against co-party) stating: 

A pleading may state as a cross-claim any claim by one 

party against a co-party arising out of the transaction or 

occurrence that is the subject matter either of the original 

action or of a counterclaim therein or relating to any 

property that is the subject matter of the original action. 

Such cross-claim may include a claim that the party 

against whom it is asserted is or may be liable to the crossclaimant for all or part of a claim asserted in the action 

against the cross-claimant. (emphasis added). 

[¶20.] Krambeck urges this Court to follow the position recently adopted by 

the Supreme Court of Missouri in Hemme v. Bharti, 183 SW3d 593 (Mo 2006). The 

Missouri Supreme Court, presented with facts almost identical to those in this case, 

held that denying a second cause of action was contrary to the Missouri Rules of Civil 

Procedure. Id. at 596-599. Those procedural rules are almost identical to those in 

South Dakota. In the Hemme case, as in our case, the defendants were represented 

by counsel provided by their insurer. The defendant was left to find alternative 
#23921, 23986 

-7- 

counsel to proceed on related claims which were outside the scope of the insurance 

contract. Id. at 600. 

[¶21.] The Missouri Supreme Court ruled that "if the compulsory counterclaim 

rule were to be applied to the cross-claim in the original case, the Court would 

impose on counsel the obligation of representing its insured in her claim for injuries 

or of informing her to retain separate counsel to represent her in the counterclaim to 

the cross-claims." Id. The Court further observed that "[t]his would add a layer of 

complexity and dysfunction in the original lawsuit that is not appropriate." Id. 

[¶22.] We agree with the Missouri Supreme Court. "A cross-claim, under this 

rule, is always permissive and never compulsory." Id. at 596. Therefore, Krambeck 

was not required to make a claim for her own injuries in the Meade County lawsuit 

commenced by Glover. Krambeck's subsequent lawsuit was not barred. The trial 

court judgment in the Butte County case is reversed, and the case is remanded. 

[¶23.] GILBERTSON, Chief Justice and MEIERHENRY, Justice concur. 

[¶24.] KONENKAMP and ZINTER, Justices, concur specially. 

[¶25.] ERICKSON, Circuit Judge, for SABERS, Justice, disqualified. 

ZINTER, Justice (concurring specially). 

[¶26.] The circuit court in Butte County dismissed Krambeck's claim for 

personal injury because she failed to include it with the cross-claims for indemnity 

and contribution that Krambeck and Macer asserted against each other as codefendants in the Meade County suit. Because Krambeck could have asserted her 

personal injury claim with her cross-claim in the Meade County suit, the circuit court 

in Butte County concluded that res judicata precluded Krambeck from subsequently 
#23921, 23986 

-8- 

 

asserting that claim. Today, this Court reverses. In doing so, the Court discusses res 

judicata but ultimately reverses based on the "compulsory counterclaim rule."

Supra, ¶¶21-22. I write to explain the relationship between res judicata and the 

compulsory counterclaim rule. I also write to clarify the circumstances under which 

omitted cross-claims are barred. 

[¶27.] When applied to permissive cross-claims, the "compulsory counterclaim 

rule" is "considered a codification2 of the principles of claim preclusion, i.e., res 

judicata, and issue preclusion, i.e., collateral estoppel." Hemme v. Bharti, 183 SW3d 

593, 599 (Mo 2006) (citation omitted). This Court has also recognized this 

relationship. This Court noted that under the compulsory counterclaim rule, "res 

judicata will bar a claim. . . only if the claim should have been properly raised as a 

counterclaim in [the prior proceeding]." Sioux Enterprises, Minnesota v. Tri-State 

Refining Co., 456 NW2d 774, 778 (SD 1990) (three justices, concurring specially). 

Although the elements of these doctrines are not identical: "If the compulsory 

2. SDCL 15-6-13(a) provides: 

A pleading shall state as a counterclaim any claim which at 

the time of serving the pleading the pleader has against 

any opposing party, if it arises out of the transaction or 

occurrence that is the subject matter of the opposing 

party's claim and does not require for its adjudication the 

presence of third parties of whom the court cannot acquire 

jurisdiction. But the pleader need not state the claim if: (1) 

At the time the action was commenced the claim was the 

subject of another pending action; or (2) The opposing party 

brought suit upon his claim by attachment or other process 

by which the court did not acquire jurisdiction to render a 

personal judgment on that claim, and the pleader is not 

stating any counterclaim under § 15-6-13; or (3) If the 

claim is not one over which the court would have 

jurisdiction if brought as an original action. 
#23921, 23986 

-9- 

 

counterclaim rule does not apply, neither does claim preclusion (res judicata)." 

Hemme, 183 SW3d at 599. Therefore, although this Court ultimately applies the 

compulsory counterclaim rule, see supra ¶¶20-22, by adopting Hemme, we have 

implicitly analyzed this issue as a matter of res judicata.3

[¶28.] I also write to clarify one portion of our opinion. The Court notes that 

under SDCL 15-6-13(g), cross-claims are "'always permissive and never compulsory.'"

Supra, ¶22 (quoting Hemme, 183 SW3d at 596). From this, the Court concludes that 

a claimant like Krambeck was not required to assert a personal injury claim in the 

3. Some courts treat the underlying basis for the compulsory counterclaim rule 

as matters of waiver or estoppel, rather than res judicata. See 6 Charles Alan 

Wright, Arthur R. Miller, and Mary Kay Kane, Federal Practice and 

Procedure, §1417 (1990); 3 James Moore, Moore's Federal Practice §13.14[1] 

(3d ed 2006). It should also be pointed out that some respected commentators 

consider waiver or estoppel to be better underlying theories for barring omitted 

claims in cases like this where an insurance company has controlled the 

defense of the first action. 

In many ways [waiver or estoppel] provides a more 

apposite and useful approach to the problem of omitted 

counterclaims than does the doctrine of claim preclusion. 

For example, it affords a means of extricating a defendant 

who has not knowingly refrained from asserting his claim 

from the rigors of the compulsory counterclaim rule; this 

type of safety valve may be particularly important when an 

insurance company has controlled the defense of the first 

action and the actual defendant has not had a realistic 

opportunity to assert his claim. 

Wright, §1417. Some courts also prefer the estoppel or waiver analysis: "In 

most instances, application of either res judicata or waiver principles will yield 

the same result, but, . . . we prefer the flexibility of a waiver analysis to the 

more rigid rules applicable to res judicata." Kane v. Magna Mixer, Co., 71 F3d 

555, 562-563 (6thCir 1995). 

Ultimately, the outcome of this case is not dependent upon this distinction. 

Therefore, we leave the precise underlying theory for another day. 
#23921, 23986 

-10- 

first litigation. Id. Although this result is correct, the Missouri Supreme Court 

rejected this analysis, noting "it has the beauty of simplicity and works in this case, 

[but] this analysis does not consistently yield the correct answer." Hemme, 183 

SW3d at 596. The Court further explained that some permissive cross-claims may be 

barred by the compulsory counterclaim/res judicata rule: 

The counterclaim rule is not limited to claims by a 

defendant against a plaintiff-Rule [13(a)] does not use 

those labels. So it is possible for co-parties in some 

circumstances to be "opposing parties," for example, when 

one co-party brings a claim for its own damages against 

another co-party. In that circumstance, they would be 

opposing parties-though both originally are co-defendantsand, thus, would be subject to the compulsory counterclaim 

[and res judicata rules].

Id. As other courts have also explained, "once a cross claim has been pleaded, the 

cross-claimant becomes an opposing party, and '[t]he party against whom [the] crossclaim is asserted must plead as a counterclaim any right to relief that party has 

against the cross-claimant that arises from the same transaction or occurrence.'" 

Earle M. Jorgenson Co., v. T.I. United States, Ltd., 133 FRD 472, 475 n10 (EDPa 

1991)(quoting Arthur F. Greenbaum, Jacks or Better to Open: Procedural Limitations 

on Co-Party and Third-Party Claims, 74 MinnLRev 507, 551 (Feb 1990)) (citing Rule 

13(a)). 

[¶29.] In my view, the bar to subsequently submitting omitted cross-claims is 

dependent upon the nature of the claim. The assertion of a substantive cross-claim 

by one co-defendant triggers these preclusive rules while procedural claims, such as 

those for contribution and indemnity, do not. Cross-claims for contribution and 

indemnity among co-defendants are considered procedural, therefore, they do not 
#23921, 23986 

-11- 

make co-parties adverse for purposes of applying res judicata and the compulsory 

counterclaim rule. Hemme, 183 SW3d at 598 (citing Augustin v. Mughal, 521 F2d 

1215 (8thCir 1975) (applying both Missouri and federal law); Kirkcaldy v. Richmond 

Cty. Bd. of Education, 212 FRD 289 (MDNC 2002); Rainbow Mgmt. Group, Ltd. v. 

Atlantis Submarines Hawaii, L.P., 158 FRD 656 (DHaw 1994); Answering Serv., Inc. 

v. Egan, 728 F2d 1500 (DC 1984)). 

[¶30.] Only substantive cross-claims are adequately mature to make the 

parties sufficiently adverse to be "opposing parties" within the meaning of the 

compulsory counterclaim (and res judicata) rule. Hall v. General Motors Corp., 647 

F2d 175, 184, 207 USAppDC 350, 359 n38 (DCCir 1980) (reasoning "contribution and 

indemnity claims are contingent on the outcome of the main claim and therefore do 

not fit the FedRCivP 13(a) compulsory counterclaim formula") (citing Chicago 

Freight Car Leasing Co. v. Martin Marietta Corp., 66 FRD 400 (NDIll 1975); 

Hartford Accident & Indemnity Co. v. Levitt & Sons, Inc., 24 FRD 230 (EDPa 1959)). 

This is consistent with our reasoning in Sioux Enterprises recognizing that "'a party 

need not assert a counterclaim that has not matured at the time [that party] serves 

[the] pleading.'" 456 NW2d at 778 (Sabers, J., concurring) (quoting Staab v. 

Skoglund, 89 SD 470, 478, 234 NW2d 45, 49 (1975)). After analyzing a number of 

decisions on this issue, the District Court in Hawaii adopted what appears to be the 

most practical approach: 

Co-parties become opposing parties within the meaning of 

[the compulsory counterclaim rule] after one such party 

pleads an initial cross-claim against the other. . .[H]owever, 

. . . this rule should be limited to situations in which the 

initial cross-claim includes a substantive claim (as opposed 

to merely a claim for contribution and indemnity). The 
#23921, 23986 

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reason for this modification is that an unlimited rule may 

actually increase the amount or complexity of litigation. 

Rainbow Management Group, 158 FRD at 660. This same "substantive" limitation 

should be applied to claims that were omitted by the party filing the first cross-claim. 

See Hemme, 183 SW3d 593. 

[¶31.] In the instant case, the cross-claims in the Meade County litigation 

asserted between Krambeck and Macer were procedural, unmatured claims for 

contribution and indemnity. For this reason, the compulsory counterclaim rule did 

not preclude the bringing of the subsequent, substantive claim for personal injuries. 

Therefore, the judgment dismissing the Butte County case must be reversed and 

remanded. 

[¶32.] KONENKAMP, Justice, joins this special writing.