author: SANDSTROM, Justice.

text:
    2005 ND 114
    TRI-STATE INSURANCE COMPANY OF MINNESOTA, Plaintiff and Appellant v. COMMERCIAL GROUP WEST, LLC, a North Dakota Limited Liability Company; and Lawson, Inc., a North Dakota Corporation, d/b/a DL Enterprise Construction, Defendants and Appellees and Commercial Group West, LLC, Third-Party Plaintiff v. Dennis Lawson; Virginia Lawson; and Lawson, Inc., a North Dakota Corporation, d/b/a DL Enterprise Construction, Third-Party Defendants.
    No. 20050007.
    Supreme Court of North Dakota.
    June 22, 2005.

      Collin P. Dobrovolny, McGee, Hankla, Backes & Dobrovolny, Minot, N.D., for plaintiff and appellant.
    Steven A. Storslee, Storslee Law Firm, Bismarck, N.D., for defendants and appel-lees.
   SANDSTROM, Justice.

[¶ 1] Tri-State Insurance Company of Minnesota (“Tri-State”) appeals from a summary judgment dismissing its case against Lawson, Inc., a North Dakota Corporation doing business as DL Enterprise Construction (“Lawson”), seeking reimbursement for insurance payments made to Lake Metigoshe Properties, Inc. (“Meti-goshe Properties”) for damages to a motel building that resulted from a heavy rainstorm. We reverse and remand, concluding the insurance contract was unambiguous and Lawson was not a co-insured.

I

[¶ 2] On March 13, 2000, Commercial Group West, LLC (“CGW”) contracted to build a motel for Metigoshe Properties. The motel was to be manufactured as modules, transported to Lake Metigoshe, and assembled. Each module, consisting of two motel rooms with a hallway in between, was built in Kenmare by CGW and transported to Lake Metigoshe, where the modules were placed together. Each module was wrapped in a plastic sheet when it left the factory, except for the roof, which was to be built after the modules were set in place at Lake Metigoshe.

[¶ 3] The name of an entity called Commercial Structures West, LLC (“CSW”) started appearing in construction documents after Metigoshe Properties and CGW contracted to build the motel. CSW was created in case contractors could not be retained to build the motel on site at Lake Metigoshe. CGW and CSW, by separate contracts, hired Lawson as the subcontractor to finish the construction of the motel at Lake Metigoshe.

[¶ 4] Tri-State insured Metigoshe Properties under a builder’s risk policy for the construction of the motel. Metigoshe Properties was the named insured on the insurance policy. CSW was listed as an additional insured in the application and in the binder. The builder’s risk policy issued by Tri-State showed CSW as a loss payee rather than an additional insured.

[¶ 5] Lawson completed only a portion of the roof before a large rainstorm, on July 2, 2000, damaged the interior units of the motel. A large amount of water pooled on the plastic covering the modules and leaked into the interior, causing water damage. Tri-State paid Metigoshe Properties $270,000 for the damage. The insurance checks were made payable to Me-tigoshe Properties and CSW.

[¶ 6] CGW, CSW, and Metigoshe Properties were controlled by some of the same individuals, but Lawson was a separate entity and did not share any officers, shareholders, or employees with either CGW, CSW, or Metigoshe Properties. Lawson was owned by Virginia Lawson, and Dennis Lawson was the general manager.

[¶ 7] Tri-State sued Lawson to recover the insurance proceeds it paid to Meti-goshe Properties for the water damage. Tri-State claimed that Lawson’s negligence in constructing the roof of the motel caused the water damage and that it should be able to subrogate its claim against Lawson and obtain reimbursement from Lawson for the money it paid to Metigoshe Properties for the water damage. The district court granted Lawson’s motion for summary judgment, holding that Tri-State, as the insurer of the owner of the building project, also intended to insure Lawson as a subcontractor.

[¶ 8] The district court had jurisdiction under N.D. Const, art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const, art. VI, § 2, and N.D.C.C. §§ 27-02-04 and 28-27-01.

II

[¶ 9] Tri-State argues it did not intend to insure an unknown subcontractor when it issued the policy to Metigoshe Properties. It contends that the district court erred in holding Tri-State could not bring a subrogation action against Lawson and that summary judgment was inappropriate for several reasons. Tri-State claims the district court erred in granting summary judgment because the district court had to determine the intent of the parties, which is a question of material fact, and it had to find that Lawson was an implied co-insured under the insurance policy even though the subcontractor’s identity was not known to the insurer and Lawson made no payment toward the insurance premium.

[¶ 10] “Summary judgment is appropriate when there is no dispute as to the material facts and only questions of law remain to be decided.” Stuhlmiller v. Nodak Mutual Ins. Co., 475 N.W.2d 136, 137 (N.D.1991). “Even if a factual dispute exists, summary judgment is proper if the law is such that resolution of the factual dispute will not change the result.” Gratech Co., Ltd. v. Wold Engineering, P.C., 2003 ND 200, ¶ 8, 672 N.W.2d 672 (citations omitted). “Interpretation of a written contract of insurance is a question of law for which summary judgment is an appropriate method of disposition.” Stuhlmiller, at 137. We have summarized our standards for construing an insurance policy:

Our goal when interpreting insurance policies, as when construing other contracts, is to give effect to the mutual intention of the parties as it existed at the time of contracting. We look first to the language of the insurance contract, and if the policy language is clear on its face, there is no room for construction. “If coverage hinges on an undefined term, we apply the plain, ordinary meaning of the term in interpreting the contract.” While we regard insurance policies as adhesion contracts and resolve ambiguities in favor of the insured, we will not rewrite a contract to impose liability on an insurer if the policy unambiguously precludes coverage. We will not strain the definition of an undefined term to provide coverage for the insured. We construe insurance contracts as a whole to give meaning and effect to each clause, if possible. The whole of a contract is to be taken together to give effect to every part, and each clause is to help interpret the others.

Nationwide Mut. Ins. Companies v. Lagodinski 2004 ND 147, ¶ 8, 683 N.W.2d 903 (citations omitted).

Subrogation is an equitable remedy which provides for an adjustment between parties to secure the ultimate discharge of a debt by the person who, in equity and good conscience, ought to pay for it. Generally, when an insurer pays its insured for a loss, the insurer is subrogated to the insured’s right of action against any third party responsible for the loss. However, an insurer is not entitled to subrogation from its own insured for a claim arising from the very risk for which the insured was covered.

American National Fire Ins. Co. v. Hughes, 2003 ND 43, ¶ 8, 658 N.W.2d 330 (citations omitted). “An insurer is not entitled to subrogation from entities named as insureds in the insurance policy, or entities deemed to be additional insureds under the policy.” Id. This insurance principle is called the antisubrogation rule. Black’s Law Dictionary 104 (8th ed.2004). “An entity not named as an insured in an insurance policy is considered an additional insured when, under the circumstances, the insurer is attempting to recover from the insured on the risk the insurer had agreed to take upon payment of premiums.” Hughes, at ¶ 8.

Ill

[¶ 11] Tri-State argues the district court improperly extended the anti-subrogation rule to Lawson. The district court concluded that Lawson was an implied co-insured because Lawson was hired instead of CSW to complete the construction project and that this change in companies did not alter the insurance agreement. The district court held that if Tri-State were permitted to recover from Lawson, Tri-State would, in effect, be recovering on the very risk that it had agreed to take upon payment of the premium by Meti-goshe Properties.

[¶ 12] A builder’s risk policy is a “property loss insurance contract by which a builder, whether the owner of or general contractor on a building, seeks to insulate himself from loss which he might suffer because of damage to or loss of a building in the process of construction.” Jay M. Zitter, Annotation, Insurance: Subrogation of Insurer Compensating Owner or Contractor for Loss Under “Builder’s Risk” Policy Against Allegedly Negligent Contractor or Subcontractor, 22 A.L.R.4th 701, 704 (1983).

[¶ 13] The coverage section of the insurance contract between Tri-State and Metigoshe Properties provides:

PROPERTY COVERED
1. Buildings and Structures — “We” cover, direct physical loss caused by a covered peril to buildings and structures described .on the “decla-r rations” while in the course of construction, erection, or fabrication. This includes materials and supplies which will become a permanent part of the buildings or structures, foundations, excavations, grading, filling, attachments, and permanent fixtures.
2. Scaffolding and Construction Forms — “We” cover direct physical loss, caused by a covered peril, to scaffolding or construction forms provided the scaffolding or construction forms are located at the building or structure described on the “declarations.”
ADDITIONAL COVERAGES
1. Transit and Storage Locations— “We” cover direct physical loss caused by a covered peril to materials and supplies which will become a permanent part of buildings or structures described on the “declarations” while they are:
a. in transit; or
b. at an unscheduled storage location. The most “we” pay under this coverage is $2,500 plus the “limit” indicated on the “declarations”.

[¶ 14] Lawson argues the district court did not err in finding it was an implied co-insured under the insurance policy. Lawson argues the implied co-insured rule is both necessary and equitable in the case at bar to prevent Tri-State from suing to recover for a risk for which it collected a premium. Lawson cites Community Credit Union of New Rockford v. Homelvig, 487 N.W.2d 602 (N.D.1992), and Hughes as precedents for its position. Homelvig involved a party leasing a house from a credit union on a month-to-month basis with an option to purchase. Homelvig, 487 N.W.2d at 603. A fire broke out, destroying the kitchen and damaging the remainder of the house. Id. The credit union had insurance on the house, and its insurance company paid for the damages and brought a subrogation action against the tenants, alleging they negligently started the fire. Id. This Court held that “absent an express agreement to the contrary, a tenant is an implied co-insured under the landlord’s insurance policy and the insurer may not seek subrogation against the tenant.” Id. at 605. The Court adopted the majority rationale that a tenant is an implied co-insured because of the tenant’s privity under the lease and the commercial realities under which lessors insure leased premises and pass on the premium costs in rent. Id. at 603-04.

[¶ 15] Lawson argues that Hughes extends the implied co-insured holding in Homelvig. In Hughes, a closely held corporation had an insurance policy on its vehicles and equipment but did not explicitly name the corporation’s owners, officers, or employees as insureds. Hughes, 2003 ND 43, ¶ 2, 658 N.W.2d 330. Hughes, who was an employee and officer of the corporation and whose parents owned all of the corporation’s stock, started a fire while he was working on his personal snowmobile. Id. at ¶¶ 2-3. We held the insurance company could not bring a subrogation claim against Hughes, because the corporation permitted Hughes and its corporate owners to use its shop for work on their snowmobiles. Id. at ¶ 14. We concluded the public policy for averting potential conflicts of interest necessitated the preclusion of the subrogation action. Id. at ¶ 18. We held that it would compromise the integrity of the insurance company’s relationship with the corporation and create a potential conflict of interest to allow the insurance company’s subrogation claim against Hughes. Id.

[¶ 16] These cases do not compel us to extend the implied co-insured doctrine to the circumstances in the case at bar. The rationale in Homelvig does not apply, because the privity of a landlord-tenant relationship is closer than the privity that exists between an owner and a subcontractor. Furthermore, the insurance premiums are not as easily transferred between the party who actually pays the premiums and the party who is seeking to be an implied co-insured. Hughes is also distinguishable because a subrogation claim against Lawson would not create a conflict of interest between Tri-State and Metigoshe Properties, because, unlike the factual circumstances in Hughes, Lawson does not share any officers, shareholders, or employees with Metigoshe Properties or CGW.

[¶ 17] Lawson cites several cases that, it argues, stand for the proposition that an insurer cannot subrogate against a subcontractor if the building is covered by a builder’s risk policy. Lawson principally relies on Transamerica Ins. Co. v. Gage Plumbing & Heating Co., Inc., 433 F.2d 1051 (10th Cir.1970), Louisiana Fire Ins. Co. v. Royal Indemnity Co., 38 So.2d 807 (La.Ct.App.1949), and Baugh-Belarde Construction Co. v. College Utilities Corp., 561 P.2d 1211 (Alaska 1977), as applying the antisubrogation rule in the context of a builder’s risk policy for an unnamed party. These cases, however, are distinguishable from the case at bar. In Transamerica Ins. Co., the builder’s risk insurance policy stated:

“This policy also, covers temporary structures, materials, equipment and supplies of all kinds incident to the construction of said building or structure and, when not otherwise covered by insurance, builders’ machinery, tools and equipment owned by the Insured or similar property of others for which the Insured is legally liable, all forming a part of or contained in said building or structure, temporary structures, or on vehicles, or in the open; only while on the premises described or within 100 feet thereof.”

433 F.2d at 1053 (emphasis added).

[¶ 18] The court in Louisiana Fire Ins. Co. held the builder’s risk policy, which stated that the items covered included “builders’ machinery, tools and equipment,” covered an unnamed subcontractor and made it a co-insured. 38 So.2d at 808. The Nevada Supreme Court held that the clause, “materials, equipment and supplies and temporary structures of all kinds incidental to the construction of buildings and structures, and similar properties belonging to others for which the insured is liable,” applied to a subcontractor and made it a co-insured. J.F. Shea Co., Inc. v. Hynds Plumbing & Heating Co., 96 Nev. 862, 619 P.2d 1207, 1209 (1980) (overruled on other grounds by Lumbermen’s Underwriting Alliance v. RCR Plumbing, Inc., 114 Nev. 1231, 969 P.2d 301 (1998)); see also Factory Ins. Ass’n v. Donco Corp., 496 S.W.2d 331 (Mo.Ct.App.1973) (unnamed contractor was co-insured under policy which contained an “also covers” provision that included similar property of others).

[¶ 19] The operative language in these policies, however, is different from the language in Tri-State’s policy. The express references to property of others in the cases cited by Lawson are not present in the Tri-State policy. The absence of this language is determinative as to whether a third party is an intended co-insured under a policy. LeMaster Steel Erectors, Inc. v. Reliance Ins. Co., 546 N.E.2d 313, 319 (Ind.Ct.App.1989).

[¶ 20] Baugh-Belarde is factually distinguishable from this case because in Baugh-Belarde there was no dispute that the subcontractor was an additional insured under the builder’s risk policy. Baugh-Belarde Construction Co., 561 P.2d at 1213. In that case, the subcontractors were specifically covered under the builder’s risk policy “as their interests may appear.” Id. at 1214. In the case at bar, the question of Lawson’s being an additional insured is the precise issue of contention between the parties, therefore making the ultimate holding in Baugh-Belarde unpersuasive.

[¶ 21] The remaining main cases cited by Lawson are distinguishable from this case because those cases involved contractual obligations not present in this case. See Indiana Ins. Co. v. Carnegie Constr., Inc., 104 Ohio App.3d 219, 661 N.E.2d 776 (1995) (insured contractually waived its right to pursue contractor for negligence); Midwest Lumber Co. v. Dwight E. Nelson Construction Co., 188 Neb. 308, 196 N.W.2d 377 (1972) (owner who contracts to procure insurance to cover contractor and fails to do so or who procures such insurance and fails to have contractor named as an insured becomes insurer of the contractor). Metigoshe Properties’ agreement to purchase insurance to cover the project in Kenmare was with CGW. Nothing in the record reflects that Metigoshe Properties and Lawson had a written contract to obtain insurance for each other.

[¶ 22] Several cases that are closer to the factual circumstances in this case, however, hold that an unnamed subcontractor may be subject to a subrogation claim. See Travelers Indemnity Co. of Connecticut v. The Losco Group, Inc., 150 F.Supp.2d 556 (S.D.N.Y.2001) (unnamed contractor is not co-insured, because there was nothing in the language of the policy to show an intention to benefit the contractor); Richmond Steel, Inc. v. Legal and General Assurance Society, Ltd., 821 F.Supp. 793 (D.P.R.1993) (unnamed subcontractor is not co-insured, because policy language is not sufficiently expansive to cover subcontractor absent a “property of others” clause); Willis Realty Associates v. Cimino Construction Co., 623 A.2d 1287 (Me.1993) (contractor was not implied co-insured under policy, because policy coverage does not extend to personal property of others within the control of the named insured); McBroome-Bennett Plumbing, Inc. v. Villa France, Inc., 515 S.W.2d 32 (Tex.Civ.App.1974) (unnamed subcontractor that did not pay for insurance premiums and only had interest in certain tools on property was not co-insured under builder’s risk policy).

[¶ 23] After reviewing the cases cited from other jurisdictions and our rationale in Homelvig and Hughes, we decline to extend the antisubrogation rule to imply that unnamed subcontractors are included under a builder’s risk policy issued to the owner of the property.

rv

[¶ 24] Lawson argues, even if this Court does not conclude that it was an implied co-insured under the contract, some of its property was expressly insured under the insurance contract. The district court held the scaffolding and construction forms supplied by Lawson did not, standing alone, lead to a decision as a matter of law that Lawson was an expressed insured. Lawson argues the coverage of the scaffolding and other materials it provided for the construction project makes it a co-insured under the policy.

[¶ 25] Courts have differed, depending on the language used in the contract, on the extent that an unnamed co-insured is covered by an insurance policy. Some courts have held that insurance policies containing language that refers to property of others more plainly than does the language contained in Tri-State’s policy generally preclude an insurer from recovering any amount under the theory of sub-rogation from an unnamed party. See J.F. Shea Co., Inc., 96 Nev. 862, 619 P.2d 1207 (subrogation not available to insurer, because builder’s risk policy covered building under construction and any material, equipment, and supplies of subcontractor); Baugh-Belarde Construction Co., 561 P.2d 1211 (subcontractor’s immunity from sub-rogation was not limited to the amount of loss of own property); Doñeo Corp., 496 S.W.2d 331 (insured could not recover against contractor, because unnamed contractor was a coinsured under policy that contained an “also covers” provision); United, States Fire Ins. Co. v. Beach, 275 So.2d 473 (La.Ct.App.1973) (clause covering builders’ machinery, tools, and equipment owned by the insured or similar property of others precluded subrogation); Transamerica Ins. Co., 433 F.2d 1051 (coverage of builders’ machinery, tools, and equipment owned by others precluded subrogation against unnamed subcontractor).

[¶ 26] Some courts hold that an insurer may recover from an unnamed co-insured up to the value of the unnamed party’s personal property expressly covered in the insurance contract. See Western Washington Corp. of Seventh-Day Adventists v. Ferrellgas, Inc., 102 Wash.App. 488, 7 P.3d 861 (2000) (rejecting the rule that co-insured status for any loss under a builder’s risk policy automatically insulates the co-insured from a subrogation claim); Travelers Ins. Companies v. Dickey, 799 P.2d 625 (Okla.1990) (insurance policy would shield unnamed insured only to the extent of the value of his property, because his status as a co-insured would not afford him immunity from subrogation coextensive with the owner’s entire coverage); McBroome-Bennett Plumbing, Inc., 515 S.W.2d 32 (unnamed subcontractor considered an insured only to the extent of his limited interest in the tools and property at the construction site).

[¶ 27] Another court went further and held that an unnamed party was not protected to any extent from subrogation despite the fact the contractor was paid for personal property damaged at the construction site. See Willis Realty Associates, 623 A.2d 1287 (contractor was not co-insured merely because payments made to the named insureds under the policy included the cost of replacing some of the contractor’s construction materials and equipment).

[¶ 28] This Court’s rationale in life insurance cases is persuasive in regard to the question in the case at bar. This Court has held an insured’s failure to change the name of the beneficiary on his life insurance policy from his ex-wife’s to his new wife’s after his divorce and remarriage did not affect the ex-wife’s right to the life insurance proceeds. Nunn v. Equitable Life Assurance Society of the United States, 272 N.W.2d 780, 781 (N.D.1978). This Court held to the general rule that the named beneficiary is controlling and that intent alone will not effectuate a change of the beneficiary. Id. at 782. The name on the insurance policy dictated who the beneficiary was, not the intent of the insured. See also Estate of Leier, 524 N.W.2d 106 (N.D.1994) (designation of ex-wife and children controlled ownership of IRA after a divorce and remarriage). In the case at bar, the insurance policy did not name Lawson as an insured under the policy, and the possible intent of some parties should not control over the express terms of the contract.

[¶ 29] Lawson attempts to use the clause covering materials and supplies that became a permanent part of the building and the clause covering scaffolding and forms to completely protect itself from subrogation. See LeMaster Steel Erectors, Inc., 546 N.E.2d at 319. We conclude, however, a party who is not expressly named as a co-insured under the policy is protected from subrogation only to the extent that the insurance policy expressly covers the party’s property. In the case at bar, Dennis Lawson testified in his affidavit that Lawson provided scaffolding and other materials, including insulation, fasteners, siding, soffit, and fascia, for the project. He claimed these materials were damaged in the rainstorm. Tri-State is not allowed to subrogate the value of these materials in its claim; however, these materials do not give Lawson the right to “claim the entire cloak of immunity from subrogation actions by virtue of its limited interest in a small portion of the property” covered by the insurance policy. McBroome-Bennett Plumbing, Inc., 515 S.W.2d at 40. While the liability of TriState under this policy should extend to Lawson’s property, “this should be its only liability and its subrogation rights guaranteed by law, equity, and contract against” Lawson “should not be limited or circumscribed.” Id.

V

[¶ 80] The policy is not ambiguous, and it does not name Lawson as a co-insured under the policy. We decline to extend an implied co-insured status upon Lawson because of its relationship with Metigoshe Properties as a subcontractor, and conclude the insurance policy does not give blanket immunity to Lawson merely because it may cover some of its property. If Lawson was negligent in failing to prevent the water damage, Tri-State may subrogate its claim against Lawson for the loss it paid to- Metigoshe Properties, except for the value of Lawson’s property that was expressly covered by the insurance policy. We therefore reverse and remand this case to the district court so it can analyze whether Lawson was negligent and find the value of Lawson’s damaged property.

[¶ 31] GERALD W. VANDE WALLE, C.J., CAROL RONNING KAPSNER, and MARY MUEHLEN MARING, concur.


source: Caselaw Access Project

author: SABERS, Justice. ZINTER, Justice

license: Public Domain

text:
    2005 SD 68
    Maria GAKIN and Frederick Eagle Tail, Jr., Plaintiffs and Appellants, v. CITY OF RAPID CITY, South Dakota, a Political Subdivision, Mt. View Cemetery, a Municipal Entity, and Tom Vallette, employee, and Jerry Zimmerman, employee, and John Does Three Through Five, Jointly, Severally and in their Individual Capacities, Defendants and Appellees.
    No. 23348.
    Supreme Court of South Dakota.
    Argued March 22, 2005.
    Decided June 1, 2005.

      Robin L. Zephier of Abourezk & Zephier, Rapid City, South Dakota, Attorneys for plaintiffs and appellants.
    Michael S. Booher, Assistant City Attorney and Jason E. Green, City Attorney, Rapid City, South Dakota, Attorneys for defendants and appellees.
   SABERS, Justice.

[¶ 1.] Maria Gakin and Frederick Eagle Tail, Jr. filed suit alleging that cemetery employees moved the grave of their deceased infant son without their consent. The city of Rapid City (City), which owns and operates the cemetery, denies these accusations. The trial court granted the City’s motion for summary judgment on all state claims based on failure to file notice of claim within 180 days pursuant to SDCL 3-21-2 and on all federal civil rights claims based on lack of liability. The parents appeal and we affirm Issues 1 and 3A and reverse Issues 2 and 3B.

Facts

[¶ 2.] Maria Gakin (Gakin) and Frederick Eagle Tail, Jr. are the natural parents of a deceased infant, Ty Eagle Tail (Ty). Ty was born on July 27,1999 with a severe genetic and physical impairment known as Anencephalus. Due to his medical condition, Ty passed away approximately two and one-half months after birth. Ty’s parents hired Kirk Funeral Home to provide the funeral arrangements. This included a traditional Christian/Lakota funeral at St. Matthew’s Episcopal Church in Rapid City, followed by a burial service at Mountain View Cemetery. The funeral and burial took place on October 15,1999.

[¶ 3.] Within days after the funeral, the parents suspected that the grave site had been moved several feet from its original position. A month or two later, Gakin telephoned Thomas Vallette (Vallette), the cemetery supervisor, to discuss the matter. During the phone call, Gakin accused the cemetery of moving the gravesite without her permission. Vallette denied those accusations.

[¶ 4.] In September, 2001, almost two years after Ty’s funeral, the parent’s attorney contacted the cemetery in an effort to determine if the infant’s grave site had been moved after the funeral and burial. The city attorney responded to the inquiry and explained that while preparing the gravesite the day before the funeral, cemetery employee Jerry Zimmerman (Zimmerman) mistakenly dug the grave in the wrong spot. The error was discovered by Vallette and the next morning he and Zimmerman filled-in the grave and dug a grave in the correct location prior to the funeral service later that afternoon.

[¶ 5.] Nonetheless, the parents remained suspicious and on May 9, 2002, they had Ty’s remains disinterred. The disinterment confirmed that Ty’s remains were in fact buried in his marked grave, but that the casket faced east rather than west, the traditional manner. The parents maintain that pictures taken at the funeral and at the disinterment, along with the positioning of the casket, show that it had been moved sometime after the funeral and burial.

[¶ 6.] The parents filed a Complaint against the city of Rapid City and certain unnamed defendants alleging negligence, reckless and intentional conduct, violation of contract, intentional and negligent infliction of emotional distress, trespass, failure to train and supervise cemetery employees, and punitive damages. On November 19, 2003, they amended the Complaint to include the specific named defendants, Val-lette and Zimmerman, and added the claims of fraud, deceit and concealment. The trial court granted the City’s motion for summary judgment on all state claims based on failure to file notice of claim within 180 days pursuant to SDCL 3-21-2 and on all federal civil rights claims based on lack of liability. The parents appeal raising three issues, which we rewrite as four issues:

1. Whether the trial court erred in granting summary judgment on all state tort claims based on lack of notice under SDCL 3-21-2.
2. Whether the trial court erred in granting summary judgment on all state contract claims.
3. Whether the trial court erred in granting summary judgment on all federal civil rights claims under 42 USC § 1983 and § 1985.
A. Claims against the City
B. Claims against individuals

Standard of Review

[¶ 7.] In reviewing a trial court’s order granting a motion for summary judgment, “[w]e will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided.” Flugge v. Flugge, 2004 SD 76, ¶ 5, 681 N.W.2d 837, 839-40 (citing Luther v. City of Winner, 2004 SD 1, ¶ 6, 674 N.W.2d 339, 343). “We view all reasonable inferences drawn from the facts in the light most favorable to the non-moving party.” Id. “Questions of law are reviewed de novo.” In re Estate of Martin, 2001 SD 123, ¶ 15, 635 N.W.2d 473, 476.

[¶ 8.] 1. Whether the trial court erred in granting summary judgment on all state tort claims based on lack of notice under SDCL 3-21-2.

[¶ 9.] SDCL 3-21-2 provides:

No action for the recovery of damages for personal injury, property damage, error, or omission or death caused by a public entity or its employees may be maintained against the public entity or its employees unless written notice of the time, place, and cause of the injury is given to the public entity as provided by this chapter within one hundred eighty days after the injury.

(emphasis added).

[¶ 10.] The parents argue that the trial court erred in granting summary judgment on all state tort claims based on lack of notice to the City within 180 days of the injury. Specifically, they assert three arguments. 1. That they did not know that the cemetery was owned and operated by the City and they were not aware of the 180-day notice rule. 2. That the date of the injury was the date that Ty’s body was disinterred. 3. That the 180-day notice rule should have been tolled indefinitely due to fraudulent concealment on the part of the City.

1. Awareness of City Ownership and 180-day Notice Rule

[¶ 11.] The parents contend that they did not know that the City owned and operated Mountain View Cemetery and that they did not become aware of the 180-day rule until they acquired legal counsel approximately ten months after the funeral.

[¶ 12.] We find these arguments unpersuasive. The record indicates that a copy of the Certificate of Purchase for Ty’s cemetery plot was provided to Fred Eagle Tail, Jr. by Kirk Funeral Home. This document clearly indicates that it was issued by the city of Rapid City.

[¶ 13.] As to the 180-day notice rule, ignorance of the law is no excuse. “Mere ignorance of the law can never be considered a mistake upon which relief from the operation or effect of the law may be predicated.” Sherin v. Eastwood, 32 S.D. 95, 101, 142 N.W. 176, 179 (1913).

2. Date of Injury

[¶ 14.] The parents argue that the accrual date of the 180-day notice rule should be May 9, 2002, the day they disinterred Ty’s remains. They contend that up until that time, they could only speculate as to whether their son’s grave was moved. It is their position that only after Ty’s remains were disinterred did they actually know that his grave had been moved.

[¶ 15.] This Court has held that the statutory mandate in SDCL 3-21-2 is unambiguous:

When the time requirement of this statute has been in dispute, we have continuously held that the date of the injury is the triggering event for the 180-day period. The statute dearly says, “after the injury,” not “after the discovery of the injury.”

Purdy v. Fleming, 2002 SD 156, ¶ 14, 655 N.W.2d 424, 430 (emphasis added). See also Peterson ex rel Peterson v. Burns, 2001 SD 126, ¶ 39, 635 N.W.2d 556, 570 (stating that SDCL 3-21-2 is an example of a notice statute in which a plaintiff must give 180 days notice after the time of the injury); In re Kindle, 509 N.W.2d 278, 280 (S.D.1993) (stating that “[u]nder South Dakota law, no action for damages may be maintained against a public entity or official unless written notice of the injury is given to that entity within 180 days of the injury”); Finch v. City of Tea, 443 N.W.2d 632, 635 (S.D.1989) (holding that notice of tort claim to mayor or city finance officer is mandatory).

[¶ 16.] The date of Ty’s funeral was October 15, 1999. Gakin testified that she started to suspect that the grave site had been moved within days after the funeral. Although the exact date of the conversation is unknown, the evidence shows that Gakin confronted Vallette about the situation a month or two after the funeral. She accused Vallette of moving Ty’s grave and she did not believe him when he denied her accusations. Despite their ongoing suspicions, the parents waited approximately ten months before seeking legal advice. On September 27, 2001, almost two years from the date of the funeral, the parents’ attorney sent a letter to the cemetery reiterating the parents’ accusations and asking for an explanation. The City responded to the letter on October 9, 2001, denying any wrongdoing in the matter. On October 16, 2001, the parents filed their initial Complaint against the City. The following Spring, on May 9, 2002, the parents had Ty’s remains disinterred.

[¶ 17.] By Gakin’s own testimony and as stated by the parents’ attorney in the letter to the City on September 27, 2001, the alleged misconduct was discovered by the parents within days after Ty’s funeral. Therefore, both the alleged injury and the discovery of the alleged injury occurred sometime during the time frame of October 15-17, 1999. It is undisputed that the parents failed to provide the City with written notice within 180 days from that time. In fact, at oral argument, the parents’ attorney conceded that there was never any attempt to specifically provide written notice of the alleged claims in accordance with SDCL 3-21-2. It could be argued that notice was eventually provided to the City through either the letter from parents’ attorney or the Complaint filed against the City. However, both events occurred approximately two years after the date of the alleged injury and do not satisfy the 180-day notice rule of SDCL 3-21-2. Here, the injury, if any, occurred on the day of the funeral, October 15,1999.

S. Fraudulent Concealment

[¶ 18.] “We have previously held that fraudulent concealment may toll the statute of limitations” and “this doctrine may be extended to a notice of claim provision.” Purdy, 2002 SD 156, ¶ 18, 655 N.W.2d at 431 (internal citations omitted). The parents assert that the 180-day notice rule should have been tolled indefinitely because of the City’s fraudulent concealment of their wrongdoings. Specifically, they allege that Vallette intentionally concealed their negligent activity by denying Gakin’s accusations and by changing the grave number in the lot book. The parents also claim that a “unique fiduciary relationship” exists between the parties because they have a significant property interest in their deceased son’s remains, along with a “peculiar confidence” in the City not to disturb the remains.

[¶ 19.] This Court has held:

In applying this doctrine to a particular set of facts, we first must determine whether a fiduciary relationship existed between the parties.'
The existence of a fiduciary duty and the scope of that duty are questions of law for the court. Generally, in such a relationship, the “property, interest or authority of the other is placed in charge of the fiduciary.” In Garrett v. BankWest, Inc., we found that a “fiduciary relationship imparts a position of peculiar confidence placed by one individual in another.” Normally, in a fiduciary relationship, one of the parties has a superior power over the other.

Id. (internal citations omitted).

[¶ 20.] In every contractual relationship, the parties place confidence in the other’s promise to perform. However, a contractual obligation does not necessarily rise to the level of a fiduciary duty. Garrett v. BankWest, Inc., 459 N.W.2d 833, 837-38 (S.D.1990) (“A fiduciary is in a position to have and exercise, and does have and exercise influence over another.”); Chem-Age Industries, Inc. v. Glover, 2002 SD 122, ¶ 38, 652 N.W.2d 756, 772 (“Fiduciary relationships juxtapose trust and dependence on one side with dominance and influence on the other.”); Buxcel v. First Fidelity Bank, 1999 SD 126, ¶ 14, 601 N.W.2d 593, 597 (“A confidential relationship is generally synonymous with a fiduciary relationship.”). Here, the parents purchased a cemetery lot along with perpetual maintenance services for $150. This created a contractual relationship. However, the parents did not relinquish control over confidential decision making inherent in fiduciary relationships. There is no evidence to suggest that the City was in a superior position to exercise influence over them as a result of their contractual relationship and there was no confidential relationship. Therefore, no fiduciary relationship existed between the parties.

[¶ 21.] “Absent a • confidential or fiduciary relationship, fraudulent concealment consists of ‘some affirmative act or conduct on the part of the defendant designed to prevent, and does prevent, the discovery of the cause of action.’ ” Roth v. Farner-Bocken Co., 2003 SD 80, ¶ 14, 667 N.W.2d 651, 660 (quoting Strassburg v. Citizens State Bank, 1998 SD 72, ¶ 14, 581 N.W.2d 510, 515) (emphasis added). In viewing the evidence in the light most favorable to the parents, Vallette’s alleged fraudulent actions denying any wrongdoing and allegedly instructing Bretsch to change the grave number in the lot book may have constituted affirmative conduct designed to prevent the discovery of the cause of action. However, by Gakin’s own testimony and as admitted in the letter that the parents’ attorney sent to the City, within days after the funeral they suspected that the grave had been moved and those suspicions persisted despite Val-lette’s denial of any wrongdoing. Furthermore, the parents’ suspicions were based largely on pictures taken at the funeral by family members. None of that photographic evidence was ever in the City’s control. Therefore, since the parents suspected wrongdoing from the very beginning, did not believe or rely on Vallette’s denials, and had photographic evidence which they assert prove their accusations, it cannot be said that Vallette’s alleged fraudulent actions in fact prevented the parents from discovering the claimed cause of action.

[¶22.] Based on the above, the trial court did not err in granting summary judgment on all state tort claims based on lack of notice under SDCL 3-21-2. Therefore, we affirm Issue 1.

[¶ 23.] 2. Whether the trial court erred in granting summary judgment on all state contract claims.

[¶ 24.] “This Court has interpreted SDCL 3-21-2 as requiring notice of injury for all causes of action sounding in tort.” Wolff v. Secretary of S.D. Game, Fish, and Parks Dep't, 1996 SD 23, ¶ 20, 544 N.W.2d 531, 534 (citing Finch v. City of Tea, 443 N.W.2d 632, 635 (S.D.1989)).

[¶ 25.] The parents contend that the rigid scheme of SDCL 3-21-2 should not preclude remedies for breach of implied and expressed contractual obligation because breach of contract is not a tort-based claim. Contract claims carry á six-year statute of limitations. SDCL 15-2-13. Therefore, they assert that the matter should be remanded to the trial court on the breach of contract claims.

[¶26.] “We have long recognized that ‘[c]onduct that is merely a breach of contract is not a tort.’ ” Trouten v. Heritage Mutual Insurance Co., 2001 SD 106, ¶ 32, 632 N.W.2d 856, 864 (quoting Weeg v. Iowa Mutual Insurance Co., 82 S.D. 104, 109-10, 141 N.W.2d 913, 916 (1966)). Consequently, the notice provisions of SDCL 3-21-2 do not apply to breach of contract claims. Finch, 443 N.W.2d at 635 (holding that it is not necessary to give notice pursuant to SDCL 3-21-2 .on contract-based claims). Therefore, the trial court erred in granting summary judgment on the breach of contract claims for failure to comply with the notice provisions of SDCL 3-21-2. We reverse and remand for trial on Issue 2.

[¶ 27.] 3. Whether the trial court erred in granting summary judgment on all federal civil rights claims under 42 USC § 1983 and § 1985. ■

A. Claims against the City

[¶ 28.] The parents alleged a violation of their civil rights under 42 USC § 1983 (civil action for deprivation of rights) and § 1985(3) (conspiracy to interfere with civil rights). The parents argue that they have a constitutionally recognized property interest in their deceased son’s remains and that the City violated their own policies, rules, and regulations in moving Ty’s remains without their consent. The trial court held that the City did not act with deliberate indifference to deprive the parents of any constitutionally protected interest and that there is no City custom, practice, or policy that can support liability for the parents’ constitutionally based claims.

[¶ 29.] The United States Supreme Court has held that “although the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution, local governments, like every other § 1983 ‘person,’ by the very terms of the statute, may be sued for constitutional deprivations visited pursuant to governmental ‘custom’ even though such a custom has not received formal approval through the body’s official decisionmaking channels.” Monell v. Department of Social Services of City of New York, 436 U.S. 658, 690-91, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611, 635 (1978). Therefore, “our first inquiry in any case alleging municipal liability under § 1983 is the question of whether there is a direct causal link between a municipal policy or custom and the alleged constitutional deprivation.” Darrow v. Schumacher, 495 N.W.2d 511, 517 (S.D.1993) (emphasis in the original) (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 1203, 103 L.Ed.2d 412, 424 (1989)). “It is well-settled that custom for the purpose of a section 1983 action must have the force of law by virtue of ‘persistent practices’ of state officials.” Eischen v. Minnehaha County, 363 N.W.2d 199, 203 (S.D.1985).

[¶ 30.] Here, there is no evidence of any previous problems, “persistent practices,” or even past allegations of misconduct by cemetery personnel to establish a custom on which to base the parents’ § 1983 claim. The parents also fail to identify a specific City policy on which to base their § 1983 claim. Furthermore, although the parents assert that they have a “property interest” in the possession and control of their deceased son’s body and casket, they fail to identify a “direct causal link” between the alleged constitutional violation (i.e., deprivation of property without due process) and any City policy or custom. Therefore, a claim of civil rights violations under § 1983 has not been established.

[¶ 31.] In addition,

[t]o state a claim under 42 USC § 1985(3), a plaintiff must plead 1) the existence of a conspiracy; 2) a purpose of depriving a person or class of persons of equal protection of the laws; 3) an act in the furtherance of the alleged conspiracy; and 4) an injury to person or property or the deprivation of a right or privilege granted to a United States citizen. Additionally, a plaintiff must show “some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirator’s action."

Biby v. Board of Regents of the University of Nebraska at Lincoln, 338 FSupp2d 1063, 1074 (D.Neb.2004) (internal citations omitted) (emphasis added). See also Federer v. Gephardt, 363 F.3d 754, 758 (8th Cir.2004) (holding that a claim under the equal protection section of section 1985(3) requires proof of class-based animus).

[¶ 32.] On appeal, the parents do not assert, nor is there any evidence in the record to suggest, that racial or other class-based animus existed on the part of the City. Therefore, a prima facie claim of civil rights violations under § 1985(3) has not been established.

[¶ 33.] Based on the above, there is no genuine issue of material fact that the parents established civil rights violations under 42 USC § 1983 or § 1985(3) against the City. Therefore, the trial court did not err in granting summary judgment in favor of the City.

B. Claims against Individuals

[¶ 34.] In addition to alleging violations of their civil rights under 42 USC § 1983 and § 1985(3) against the City, the parents brought suit against Yallette, Zimmerman, and other unnamed City employees in their individual capacities. However, the trial court failed to address the claims against these individuals and instead focused solely on the civil rights claims against the City. This is evident from the trial court’s Conclusions of Law, which provide in relevant part:

1. The City did not act with deliberate indifference to deprive the Plaintiffs of any constitutionally protected interest.
2. There is no City custom, practice, or policy that can support liability for Plaintiffs’ constitutionally based claims.

(emphasis added). The trial court’s Findings of Fact and Conclusions of Law failed to include the parents’ civil rights claims against the individuals in their individual capacities. Therefore, we reverse and remand on Issue 3B so that the trial court can properly address the parents’ civil rights claims against the individuals in their individual capacities.

[¶ 35.] GILBERTSON, Chief Justice and KONENKAMP, Justice, concur.

[¶ 36.] ZINTER and MEIERHENRY, Justices, concur in part and concur in result in part.

ZINTER, Justice

(concurring and concurring in result).

[¶ 37.] I generally concur. However, I concur in result on Issue 1 because of the Court’s conclusion that “no fiduciary relationship existed” between this public cemetery and the family of the person buried there. See supra ¶ 20. Contrary to the Court’s opinion, a fiduciary relationship may exist. However, I would not reach the fiduciary relationship issue. I would not reach it because the parties have not adequately briefed the issue, and even if a fiduciary relationship existed, the parents’ actual knowledge of their cause of action precluded their use of fraudulent concealment to toll the notice provision of SDCL 3-21-2.

[¶38.] Although the Court concludes otherwise, a fiduciary relationship may exist between a public cemetery and the families of the people that are buried there. We have specifically recognized that “in a fiduciary relationship, the property, interest or authority of the other is placed in the charge of the fiduciary.” High Plains Genetics Research, Inc. v. J K Mill-Iron Ranch, 535 N.W.2d 839, 842 (S.D.1995) (citing Nelson v. WEB Water Development Ass’n, Inc., 507 N.W.2d 691, 698 (S.D.1993)). Certainly, once a decedent’s remains are interred, they are within the physical charge, custody, and control of the cemetery management. Furthermore, it is generally recognized that “a cemetery corporation is usually organized for a public rather than private purpose, and the cemetery management is in the nature of a trust.” State ex rel. Stephan v. Lane, 614 P.2d 987, 993 (Kan.1980) (citing Carlock v. Ladies Cemetery Association, 317 S.W.2d 432 (Mo.1958); Frank v. Kugler, 121 N.J.Super. 589, 298 A.2d 291 (1972); Dennis v. Glenwood Cemetery, 96 N.J. Eq. 399, 130 A. 373 (1924); 14 C.J.S. [Cemetaries § 5 (1991)]). In fact, “[cjemetery ... management has been held to be in the nature of a charitable, pious, or sacred trust.” In re Limestone Cemetery, 24 Pa. D. & C.2d 281, 294-295 (PaQuarSess 1960). For these reasons, “a non-profit cemetery corporation and the individuals who control its activities ... bear a fiduciary relationship not only toward lot owners and relatives of persons buried in the cemetery, but toward residents at large of the community.” Id. at 294. (citation omitted).

[¶ 39.] However, we need not definitively ascertain the exact nature of that relationship in this case because the decedent’s parents may not rely upon the doctrine of fraudulent concealment by a fiduciary. They may not rely upon that doctrine because “[flraudulent concealment [only] tolls the statute of limitations until the claim is discovered or might have been discovered with reasonable diligence.” Strassburg v. Citizens State Bank, 1998 SD 72, ¶ 14, 581 N.W.2d 510, 515 (citations omitted). Therefore, “[flraudulent concealment will not toll the statute of limitations, no matter the nature of the concealment, if a plaintiff is already on notice of a cause of action.” Id. ¶ 15. (citations omitted).

[¶ 40.] Here, the parents were on notice of their cause of action from the very beginning, and consequently, fraudulent concealment was an unavailable theory even if a fiduciary relationship existed. Because fraudulent concealment was an unavailable theory no matter what the nature of the relationship of the parties, the notice provision in SDCL 3-21-2 barred the state tort claims. Purdy v. Fleming, 2002 SD 156, ¶ 21, 655 N.W.2d 424, 432.

[¶ 41.] MEIERHENRY, Justice, joins this special writing.

      . Ken Kirk, the funeral director of Kirk Funeral Home, testified that it is Christian tradition to bury a deceased individual with their head to the west. However, according to Kirk, the disinterment revealed that Ty was buried with his head to the east.

      . "CITY OF RAPID CITY” is printed across the top of the document and it is signed by both the mayor and city finance officer.

      . When questioned about when she returned to the cemetery after Ty’s funeral, Gakin testified as follows:
      Q: Did you go to the cemetery again?
      A: Yes. The day after, I went to pick up all his flowers, because we had taken all the flowers from the [Oyate Center]. And then the day after, we went and picked them up. And then two days later is when I seen that he was moved. I thought he was moved. Furthermore, in the letter sent to the City, the parents' attorney stated:
      It was learned within 48 hours after his burial on or about October 13, 1999[sic], that apparently, his body and casket were exhumed and moved to an adjacent grave site.

      . Although not argued by the parents, it could be asserted that "substantial compliance" of the notice requirement was achieved via the phone conversation between Gakin and Val-lette. See Myears v. Charles Mix County, 1997 SD 89, ¶ 13, 566 N.W.2d 470, 474 (holding that "substantial compliance is sufficient to satisfy the notice requirements of SDCL 3-21-2 and -3”). However, SDCL 3-21-2 specifically provides that "written notice” must be given and SDCL 3-21-3(3) provides that in a case involving a municipality the written notice must be given "to the mayor or city finance officer." Therefore, this argument is unpersuasive since the phone conversation did not provide written notice and it did not involve either the mayor or the city finance officer.

      .Kay Bretsch, an accounting clerk in the cemetery office, testified that several days after the funeral Vallette indicated to her that Zimmerman had "dug the wrong grave" and instructed her to change Ty’s grave number in the cemetery’s lot book. However, as indicated, Vallette claims he and Zimmerman already dug the grave in the correct location on the morning of the funeral.

      . The parents also argue on appeal that their claim of trespass is not a tort-based claim and is not subject to SDCL 3-21-2. However, despite the parents’ contention, a claim of trespass is commonly recognized as a tort-based claim. The Restatement (Second) Torts § 158 (1965) establishes liability for intentional trespass on land. Furthermore, Black's Law Dictionary defines an "intentional tort” as:
      A tort committed by someone acting with general or specific intent. Examples include battery, false imprisonment, and trespass to land.

      Black’s Law Dictionary 1497 (7th ed 1999) (emphasis added).

      . Although not argued in their brief, the City asserted during oral argument that the breach of contract issue was never pleaded nor raised at the motions hearings before the trial court and it should not be considered on appeal.
      "All pleadings shall be construed as to do substantial justice.” SDCL 15 — 6—8(f). While it is accurate that neither the initial Complaint nor the Amended Complaint contain the phrase "Breach of Contract”, as a subheading, both documents contain language regarding the parent's contract claims. Specifically, paragraph 11 of both documents states in relevant, part:
      11. Within an unknown number of hours and/or days following the death and burial of said deceased, Defendants ... allegedly tampered with the original gravesite of decedent, in violation of the Plaintiff’s burial agreement!contract with Defendants

      (emphasis added). References to the contract are also made in paragraphs 15, 33, 34, and 35 of both documents.
      Furthermore, pages 2-4 of the transcript from the motion hearing held on March 15, 2004, reveal that Circuit Court Judge Delaney was aware of the contract claims and questioned the attorneys about the issue. However, Judge Delaney ultimately failed to specifically rule on the contract claims as evidenced by his Findings of Fact and Conclusions of law.

      . Although the parents specifically plead a claim under 42 USC § 1985, they do not argue each separate element of the claim per the cited case law. Instead, they combined the § 1983 and § 1985 claims into one general argument pertaining to the alleged civil rights violations.


author: KONENKAMP, Justice. SABERS, Justice

text:
    2005 SD 67
    Dolly Mae WELLS, Plaintiff and Appellee, v. William W. WELLS, Defendant and Appellant.
    No. 23336.
    Supreme Court of South Dakota.
    Considered on Briefs March 21, 2005.
    Decided June 1, 2005.

      Lawrence E. Long, Attorney General, Pierre, South Dakota, H. Richard Church-well, Special Assistant Attorney General, Rapid City, South Dakota, Attorneys for plaintiff and appellee.
    Terry L. Pechota, Rapid City, South Dakota, Attorney for defendant and appellant.
   KONENKAMP, Justice.

[¶ 1.] In this appeal, an Indian tribal member residing on a reservation seeks relief from a 1991 state court judgment awarding child support. He contends that the judgment is void for lack of personal and subject matter jurisdiction. The circuit court refused to vacate the judgment. Because the father fully litigated the question of jurisdiction before the judgment was entered and then abandoned his appeal, we affirm the circuit court’s ruling that the 1991 judgment is res judicata.

Background

[¶ 2.] William W. Wells and Dolly Mae Wells were married in May 1980, in Pierre, South Dakota. They lived together on the Crow Creek Reservation in Buffalo County. Both are enrolled members of the Crow Creek Sioux Tribe. In April 1987, no longer able to endure William’s domestic abuse, Dolly fled the reservation with their five children. She was pregnant at the time with the parties’ sixth child. She and the children eventually took up residence in Rapid City.

[¶ 3.] William started a divorce action in the Crow Creek Sioux Tribal Court. Under the tribal code, personal service of the summons and complaint was required. Because William did not know where Dolly went after leaving the reservation, he was unsuccessful in arranging to serve her personally.

[¶ 4.] In August 1987, Dolly brought a divorce action against William in circuit court in Pennington County. William then served her attorney by mail with a copy of his summons and complaint. The tribal court accepted this as adequate service, entered a default divorce decree against Dolly, and awarded William custody of the children.

[¶ 5.] In September 1987, Dolly was able to obtain service on William through the Buffalo County Sheriffs Office. William was served the divorce summons and complaint while he was residing on the Crow Creek Reservation. He appeared specially in circuit court to contest the sufficiency of service. The circuit court dismissed Dolly’s action because the Buffalo County Sheriff had no jurisdiction to serve an enrolled member of the Crow Creek Sioux Tribe on the reservation.

[¶ 6.] In March 1988, Dolly brought a new divorce action against William in circuit court. In this second suit, William was served by a tribal policeman whose return of service stated that he was an enrolled member of the Crow Creek Sioux Tribe. In another special appearance, William again moved to dismiss the case, arguing that the marriage had already been dissolved and that the circuit court lacked subject matter jurisdiction over the case. The circuit court denied William’s motion, finding that the tribal court divorce decree could not be recognized because of William’s failure to personally serve Dolly in accordance with the tribal code. The court found that it had concurrent subject matter jurisdiction with the tribal court.

[¶ 7.] On intermediate appeal, this Court affirmed: the tribal court divorce decree did not warrant recognition through principles of comity, and the circuit court had subject matter jurisdiction of the divorce proceedings. Wells v. Wells, 451 N.W.2d 402 (S.D.1990). Left undecided were questions of jurisdiction for purposes of awarding child custody, alimony, and child support. Dolly then continued with her divorce action against William in state court. The circuit court granted a divorce to Dolly in July 1991. She was awarded custody of the children, and William was ordered to pay child support of $650.00 per month.

[¶8.] On September 17, 1991, William filed a pro se notice of appeal in state court. In his docketing statement, he asserted, among other things, that the circuit court lacked personal jurisdiction over him and subject matter jurisdiction over the action. William abandoned his appeal, however, when he never ordered a transcript and failed to file and serve a brief. On November 14, 1991, his appeal was dismissed.

[¶ 9.] When, in 2003, the South Dakota Department of Social Services, Office of Child Support Enforcement, began peeking past due child support on Dolly’s behalf, William moved to vacate the 1991 judgment under SDCL 15 — 6—60(b)(4). At that time, his child support arrears were nearly $80,000. (They now . exceed $100,000.) In his motion, dated April 11, 2003, William argued that the portion of the judgment pertaining to child support was void due to the lack of personal and subject matter jurisdiction. According to William, the circuit court “had no jurisdiction to impose any personal judgment upon [him] in that action on the ground and for the reason that-at all relevant times [he] was an enrolled member of the . Crow Creek Sioux Tribe residing upon the Crow Creek Reservation, Indian Country....”

[¶ 10.] In denying the motion to vacate, the circuit court ruled that the judgment is now res judicata and that, in any event, the exercise of jurisdiction was valid in 1991. On appeal, William argues that the circuit court should have vacated the 1991 judgment when there was no jurisdiction to impose child support on an Indian tribal member who resided within the bounds of the reservation.

Analysis and Decision

[¶ 11.] Ordinarily, questions of jurisdiction can be raised at any time, even sua sponte by this Court. Reaser v. Reaser, 2004 SD 116, ¶ 27, 688 N.W.2d 429, 437 (citations omitted). A judgment rendered without jurisdiction is void. Miller v. Weber, 1996 SD 47, ¶ 13, 546 N.W.2d 865, 868 (citing Crowley v. Trezona, 408 N.W.2d 332, 333 (S.D.1987)). “A judgment which is void is subject to collateral attack both in the State in which it is rendered and in other States.” Restatement (Fikst) of Judgments § 11 (1942). The applicability of the doctrine of res judicata is a question of law examined de novo. Banks v. International Union Electronic, Elec., Technical, Salaried and Mach. Workers, 390 F.3d 1049, 1052 (8thCir.2004) (citation omitted).

[¶ 12.] William argues that the circuit court had no jurisdiction to impose child support in the 1991 divorce decree. The circuit court, he asserts, had “no general civil jurisdiction over Indians on reservations within its borders.” Because he was domiciled on the reservation at all times, and because he did not conduct any activity within the State pf South Dakota, he contends that jurisdiction was lacking and that the circuit court’s refusal to vacate the 1991 child support judgment was error.

[¶ 13.] Under SDCL 15-6-60(b), “On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reason[]: ... (4) The judgment is void....” Id. (1966). Our standard of review for motions under SDCL 15-6-60(b)(4) is plenary. See Jopling v. Jopling, 526 N.W.2d 712, 714-15 (S.D.1995) (citing Kromer v. Sullivan, 88 S.D. 567, 570, 225 N.W.2d 591, 592 (1975)). William argues that because the judgment is void, he has no responsibility to pay child support imposed on him in the 1991 judgment.

[¶ 14.] A void judgment derives from, among other things, a court that had no personal or no subject matter jurisdiction. “If the circuit court lacks jurisdiction over a defendant’s person, a judgment or order entered against such defendant is void.” Miller, 1996 SD 47, ¶13, 546 N.W.2d at 868. “ ‘Subject matter jurisdiction is the power of a court to act such that without subject matter jurisdiction any resulting judgment or order is void.’ ” City of Sioux Falls v. Missouri Basin Mun. Power Agency, 2004 SD 14, f 10, 675 N.W.2d 739, 742 (quoting Barnes v. Matzner, 2003 SD 42, ¶ 10, 661 N.W.2d 372, 375 (further citations omitted)). William contends that because the circuit court lacked personal and subject matter jurisdiction he may attack the 1991 judgment as void, even now, fourteen years later. We have often said that questions regarding jurisdiction may be raised at any time. Reaser, 2004 SD 116, ¶ 27, 688 N.W.2d at 437 (citation omitted).

[¶ 15.] As straightforward as William’s argument appears to be, we nonetheless confront a conflict of principles. On the one hand, a purportedly void judgment has traditionally been vulnerable to collateral challenge. On the other hand, the doctrine of res judicata prevents the relitigation of claims that were litigated in prior proceedings. Merchants State Bank v. C.E. Light, 458 N.W.2d 792, 794 (S.D.1990) (citing Bank of Hoven v. Rausch, 449 N.W.2d 263, 266 (S.D.1989)). Although subject matter jurisdiction cannot be established by waiver, and although lack of either personal or subject matter jurisdiction can be raised in subsequent proceedings, under certain circumstances, courts have invoked the doctrine of res judicata to preclude reexamining asserted jurisdictional defects when the matter was finally adjudicated in an earlier proceeding. In re S.L., AC., D.C., R.A. & L.P., 872 S.W.2d 573, 576 (Mo.Ct.App.1994) (citing State ex rel. Agri-Trans Corp. v. Nolan, 756 S.W.2d 203, 205-06 (Mo.Ct.App.1988)). “The doctrine of res judicata protects ‘parties from being subjected twice to the same cause of action, since public policy is best served when litigation has a finality.’ ” Faulk v. Faulk, 2002 SD 51, ¶ 16, 644 N.W.2d 632, 635 (quoting Moe v. Moe, 496 N.W.2d 593, 595 (S.D.1993)).

[¶ 16.] Res judicata serves to bar further court action, including appeals, when (1) there was a final judgment on the merits in the earlier action, (2) the question decided in the former proceeding is the same as the one decided in the present action, (3) the parties to both actions are the same, and (4) “there was a full and fair opportunity to litigate the issues in the prior adjudication.” Moe, 496 N.W.2d at 595 (citing Raschke v. DeGraff, 81 S.D. 291, 295, 134 N.W.2d 294, 296 (1965)). Of course, we have also held that a prior judgment is final if it is rendered by a court “having jurisdiction of the parties and subject matter[.]” Raschke, 81 S.D. at 296, 134 N.W.2d at 297 (following Cundy v. Weber, 68 S.D. 214, 300 N.W. 17, 20 (1941) (citation omitted)). “The principle of finality has its strongest justification where the parties have had full opportunity to litigate a controversy, especially if they have actually contested both the tribunal’s jurisdiction and issues concerning the merits.” Restatement (Second) of Judgments § 12 cmt a (1982).

[¶ 17.] Several courts have concluded that when a party appears and contests jurisdiction, a judgment rendered on jurisdiction is final for the purposes of res judicata. As the United States Supreme Court recognized:

Public policy dictates that there be an end of litigation; that those who have contested an issue shall be bound by the result of the contest; and that matters once tried shall be considered forever settled as between the parties. We see no reason why this doctrine should not apply in every case where one voluntarily appears, presents his case and is fully heard, and why he should not, in the absence of fraud, be thereafter concluded by the judgment of the tribunal to which he has submitted his cause.

Baldwin v. Iowa State Traveling Men’s Ass’n, 283 U.S. 522, 525-26, 51 S.Ct. 517, 518, 75 L.Ed. 1244 (1931); see also Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 378, 60 S.Ct. 317, 320, 84 L.Ed. 329 (1940). After a jurisdictional ruling, “the determination is res judicata between the parties and can only be attacked directly by an appeal therefrom.” Claxton v. Simons, 174 Ohio St. 333, 189 N.E.2d 62, 65 (1963) (citing Baldwin, 283 U.S. at 525-26, 51 S.Ct. at 518). Even though an earlier determination of jurisdiction may be erroneous on the facts and law, the doctrine of res judicata will still apply, precluding further litigation on the judgment. Id. (following Baldwin, 283 U.S. at 525-26, 51 S.Ct. at 518); see Tucker v. Tucker, 35 Md.App. 710, 373 A.2d 16, 18-19 (1977).

[¶ 18.] William first sought relief through an intermediate appeal to this Court. Our prior decision addressed solely the issue whether the circuit court possessed personal jurisdiction over the parties and subject matter jurisdiction of the divorce action. Wells, 451 N.W.2d at 406. After jurisdiction was upheld, the case continued in circuit court. In its findings of fact, the circuit court found that the best interests of the children required that Dolly have custody; that Dolly’s monthly net income was $650; that William’s “monthly net income or earning ability [was] $1,500.” In its conclusions of law, the court ruled that it had personal and subject matter jurisdiction over the “divorce action, the parties and the children of the parties” and that William was obligated to pay child support. Thereafter, William filed a notice of appeal. In his docketing statement, he recited his appeal issues, which included lack of personal jurisdiction and lack jurisdiction over the subject matter. When he failed to pursue his appeal, it was dismissed.

[¶ 19.] The rule that an earlier determination of subject matter jurisdiction is conclusive in later litigation has found acceptance in the Restatement (Second) of Judgments § 12 (1982):

§ 12. Contesting Subject Matter Jurisdiction
When a court has rendered a judgment in a contested action, the judgment precludes the parties from litigating the question of the court’s subject matter jurisdiction in subsequent litigation except if:
(1) The subject matter of the action was so plainly beyond the court’s jurisdiction that its entertaining the action was a manifest abuse of authority; or
(2) Allowing the judgment to stand would substantially infringe the authority of another tribunal or agency of government; or
(3) The judgment was rendered by a court lacking capability to make an adequately informed determination of a question concerning its own jurisdiction and as a matter of procedural fairness the party seeking to avoid the judgment should have opportunity belatedly to attack the court’s subject matter jurisdiction.

Id,.

[¶ 20.] Here, the three Restatement policy considerations favor upholding the 1991 judgment as res judicata. First, the subject matter of this action was not so plainly beyond the circuit court’s jurisdiction that its hearing the matter was a manifest abuse of authority. Second, allowing the judgment to stand here would not substantially infringe on “the authority of another tribunal or agency of government,” and more particularly in this case, it would not infringe on tribal sovereignty. Although the policy against contravening tribal sovereignty is strong, this child support judgment does not “infringe[] on the right of reservation Indians to make their own laws and to be ruled by them.” Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269, 271, 3 L.Ed.2d 251 (1959). Tribal law and tribal self-governance are not in issue. What is in issue is the support of six children living off the reservation in state jurisdiction. Dolly’s divorce action did not commence on the reservation. She left the reservation and then sought support for her children. The purpose of the Williams infringement test is to “resolve [the] conflict by providing that the State could protect its interest up to the point where tribal self-government would be affected.” McClanahan v. State Tax Comm’n of Arizona, 411 U.S. 164, 179, 93 S.Ct. 1257, 1266, 36 L.Ed.2d 129 (1973). Undoubtedly, the state has a compelling interest in making sure that children in the state are supported by their parents.

[¶ 21.] Third, the judgment here was rendered by a general jurisdiction court fully capable of making an adequate determination on the question of its own jurisdiction. In terms of procedural fairness, William had a full opportunity to litigate the question of subject matter jurisdiction. Under the old doctrine, a judgment from a court purportedly lacking subject matter jurisdiction was forever subject to being declared void. See Restatement (Second) of Judgments § 12 cmt b (1982). Under the modern rule, however, “conclusiveness of determinations of subject matter jurisdiction gives finality substantially greater weight” than purported invalidity. Restatement (Second) of Judgments § 12 cmt a.

[¶ 22.] A Missouri court faced the same problem we face here: if we do not recognize the modern rule, an unsuccessful litigant could file a motion challenging jurisdiction, “then fail to appeal the denial of [the] motion, and then continue to file new motions seriatim attacking jurisdiction.” S.L., 872 S.W.2d at 576. As that court recognized, “[a]ny other rule would mean there is no finality to any judgment in which subject matter jurisdiction may be questioned.” Id. At some point, there must be an end to jurisdictional challenges. William had a full and fair opportunity to contest jurisdiction. The question was raised, litigated, and determined, and thereafter he abandoned his appeal on the issue. The child support judgment is res judicata.

[¶ 23.] Affirmed.

[¶ 24.] GILBERTSON, Chief Justice, and ZINTER and MEIERHENRY, Justices, concur.

[¶ 25.] SABERS, Justice, dissents.

SABERS, Justice

(dissenting).

[¶26.] I dissent. In Wells v. Wells, 451 N.W.2d 402 (S.D.1990), we held that the circuit court had valid jurisdiction to declare a decree of divorce between the wife and husband, and no more. At that time (1990), the law clearly provided that tribal courts, not circuit courts, had exclusive subject matter jurisdiction over two Native American Indians domiciled on Indian land. Therefore, the circuit court could determine that the marriage was terminated but could not determine custody, child support or property rights on Indian land.

[¶ 27.] The majority opinion is inconsistent when it says at ¶ 20 that “Dolly’s divorce action did not commence on the reservation” and at ¶ 2 “[i]n April 1987, no longer able to endure William’s domestic abuse, Dolly fled the reservation with their five children.” How could the divorce action arise and be commenced in Rapid City when there is no showing William was ever there?

[¶ 28.] What should Dolly have done in 1990? Simple. Commence an action against William in tribal court for custody, child support and division of property. That is the only place where there was subject matter jurisdiction and the only place those judgments can be enforced.

[¶ 29.] As stated in my dissent in Weston v. Jones:

This divorce was entered on June 10, 1996, a day and age where the law clearly provided that tribal courts have exclusive subject matter jurisdiction over two Native American Indians domiciled on Indian land.
For years, the law was that:
Subject matter jurisdiction can not be conferred by consent.
Subject matter jurisdiction can not be conferred by agreement.
Subject matter jurisdiction can not be conferred by stipulation.
Subject matter jurisdiction can not be conferred by waiver.
In fact, because jurisdiction can not be waived:
The lack of jurisdiction can be raised at any time. By anybody, any time, any place.
In fact, as recently as May 26, 1999, this court claimed that jurisdiction must be raised sua sponte. [FN6]
FN6. Decker v. Tschetter Hutterian Brethren, 1999 SD 62, ¶ 14, 594 N.W.2d 357, 362 (plurality opinion by Gilbertson, J., joined by Miller, C.J., and Konenkamp, J., stating “this court is required sua sponte to take note of jurisdictional deficiencies, whether presented by the parties or not ....”) (quoting State v. Phipps, 406 N.W.2d 146, 148 (S.D.1987) (citations omitted)).
But, not anymore, because now we have jurisdiction by estoppel.

1999 SD 160, ¶¶ 32-35, 603 N.W.2d 706, 713.

[¶ 30.] AND NOW, we have jurisdiction by res judicata.

[¶ 31.] Contrary to the majority opinion at ¶ 20, it is clear that THIS ACTION DOES INFRINGE on tribal sovereignty. See Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959) (holding that allowing a state court to exercise jurisdiction over a civil suit against an Indian where the cause of action arises on an Indian reservation “would undermine the authority of tribal courts over Reservation affairs and hence would infringe on the right of the Indians to govern themselves”). What is more important to the rights of reservation Indians than to make, determine and enforce their own laws concerning custody, child support or property rights on tribal land? This case and Weston go a long way to making tribal domestic law irrelevant.

[¶ 32.] For all these reasons, I dissent.

      , An even stronger preclusion applies to collateral challenges to personal jurisdiction:
      Where a defendant appears in an action to object that the court has no jurisdiction over him and the court overrules the objection and judgment is rendered against him, the parties are precluded from collaterally attacking the judgment on the ground that the court had no jurisdiction over the defendant.
      Restatement (First) of Judgments § 9 (1942).

      . "When the question of the tribunal’s jurisdiction is raised in the original action, in a modem procedural regime there is no reason why the determination of the issue should not thereafter be conclusive under the usual rules of issue preclusion.” Restatement (Second) of Judgments § 12 cmt c (1982).