*1 struc- family life and foundational ture orga- family central

tures. of the Christian and foundation

nization we find: 6:1-3 Ephesians order.

social in the Lord for obey your parents

Children father and mother. right. your Honor He did obey parents.

Blake did his (at least his father and mother

not honor And question). a factual Carters

there is Brooks, 352 Ruple him. Under v.

upheld (S.D.1984) ques- a factual determine jury exists for the

tion conduct outrageous extreme

there was causing intentionally, recklessly,

either emotional distress.

severe Johnson,

Rick Johnson of Eklund & Davis, appel- Gregory, plaintiffs and lants. Jackson, Lynn, Donald R. Shultz of Bruntz, Betty et

Jonas BRUNTZ Lebrun, P.C., Rapid City, for de- Shultz & al., Appellants, Plaintiffs and appellee. fendant and RUTHERFORD, Kathryn L. WUEST, Chief Justice. Appellee.

Defendant and Betty Appellants, Jonas Bruntz Bruntz, al., (collectively et referred to “Bruntz”), appeal from a court. We ment entered on Briefs Oct. affirm. Decided Feb. Bruntz, investors se-

curities and notes which issued M.J. Rutherford. M.J. wife, (Ka- Kathryn L. Rutherford ford’s thryn), in these notes. was also investor not, re- partner with She was compa- spect to her investment ny. misappropriated himself subsequently funds and found .un- pay his As a result able to creditors. March Chapter Bankruptcy filed a discharged subsequently 1982. He was court. all order of to this dis- timely object Bruntz failed to charge. May filed a com-

On court, seeking to re- plaint in M.J. grounds on the voke fraudulently converted the Rutherford *2 291 given promissory for the notes. judicata. funds doctrine of res It has been made Bruntz M.J. Rutherford held that judicata pre- res misrepresentations fraudulent to the readjudication bank- vents in state court of all ruptcy led to the of matters might were have been requesting his debts. In addition to a revo- litigated bankruptcy proceedings discharge, cation of the Bruntz further re- parties. Cohen, Levy v. quested permitted that he be to trace his 165, 162, 19 Cal.3d 137 Cal.Rptr. 561 P.2d cert, investment monies to the assets which Ka- (1977), denied, 833, 252 434 U.S. 98 thryn hearing A now owns. was held and (1977); S.Ct. 54 L.Ed.2d 94 Jantzen v. arguments presented bankrupt- Baker, 131 Wis.2d 388 N.W.2d cy respect complaint. court with (App.1986). 662 While it Kathryn is true Subsequently, by an order was entered involved, nor in dismissing complaint. involved in the bankrupt- cy proceeding, we hold that the doctrine of appeal Bruntz did not this order to the may applied still be in this case Instead, United States District Court. to bar Bruntz’s action her. brought an action in the state circuit court seeking a constructive trust on Prior to our decision in Black Hills Jew Kathryn’s alleging given home the funds elry Ind., Mfg. v. Felco Jewel 336 N.W.2d M.J. Rutherford *3 manner, Kathryn need fensive therefore present law- Appellants 3. Conclusion: in a involved the not have been judica- of suit the doctrine is barred for doc- in order the bankruptcy proceeding ta. serves It is obvious applied in this judicata to be trine of res relitigation prevent of an issue purpose to case. already litigated. precisely been attempted to The matters which previ- adjudicate in the action were III. bankruptcy ously adjudicated the 1. Appellants constructive noted, previously As we proceeding. have discharge granted to the trust and revoke judicata prevents read- bankrupt through to this state the of all matters

judication in state court proceeding. pri- adjudicated in a However, requested 2. the constructive Therefore, it is proceeding. bankruptcy or the is as it was trust did not err clear that the claim, subject very the the latter of to granting August its dismissed on merits Judgment is affirmed. Bankruptcy in the Court. Additionally, Appellants to ob- 3. failed MORGAN, J., concurs. in the ject discharge the to J., HENDERSON, concurs proceeding. This a classic case of a was rights. sleeping judica- on their Res again applies. ta MILLER, JJ., concur SABERS specially. IV. HENDERSON, (concurring). 1. under 11 Appellants failed act 727(c)(2) they call in that failed to U.S.C. § PREFACE theory the to the atten- constructive trust This trust lawsuit is constructive bankruptcy trustee. tion of the Appellants this wherein seek Thus, they estopped main- 2. are against type of trust a widow’s homestead incep- their is taining an action and the of her deceased husband. tually flawed. discharged in Her debts were Additionally, the trustee was the 3. Bankruptcy Court. United States a con- bring an action for trust, Appellants. 11 U.S.C. structive I. 541. § alleged cause of action is Appellant’s 1. 727(e) a 11 U.S.C. under Ap- a claimed based indebtedness must re- trustee creditor or pellee’s deceased husband. quest discharge a revocation of Appellee’s deceased husband ob- discharge year one from the date the bankruptcy. tained a Here, Bankruptcy Court granted. was Appellants cause of ac- 3. Conclusion: of November a deadline tion is barred. were filed whatsoever to objections no

bankrupt’s discharge until November II. judicata ap- peradventure, Beyond

1.An identical lawsuit to lawsuit Each of facts plies these facts. set Appellants under now on started closely to determine must be examined Bankruptcy Court which was dismissed Summary applied. should be doctrine on its merits. legal, pursue appropriate dispose late for her to claim back questions. against Obviously, not factual defrauder. have: should writing believ- the Chief Justice’s 1) his fraud established claim ample author- ing that is solid law with Rutherford, appealed or de- from the shaking I am cited. not interested in ities thereof, nial up recent stare decisis. Black Hills Jewel- approval, been cited 15 times with ry has 2) his claim combined Court, including 12 times in in the once ford for fraud with his claim Eighth Appeals, Circuit Court of tracing proceeds for South the United States District Court *4 into her fraud cabin the Black Dakota, Division, Central and Hills. Supreme Court of Montana. approach Either would have avoided the judicata” “excessive use of res he, situation and now find them- indeed, should, I guarded against. be am selves in. Bruntz failed Since to establish overemphasis the obvi- reminded claims, fraud or combine his this was mother, my sundry ous who told me use” “defensive of res occasions, intentions, “son, good with all I am authorized to state that Justice your plane!” Squarely do the don’t miss MILLER, joins special facts fit the dóctrine of res not believe that Justice and do the Chief plane.

missed

SABERS, specially). (concurring continually guard

We must judicata, especially use of res

excessive different

when used bar claims parties, those not JOHNSON, Rhonda S. Plaintiff parties, denying proper for fear with the Appellee, wrongfully damaged. of those To claims deny “day would do so claimants their JOHNSON, Michael D. Defendant open court” direct violation of Appellant. provision of the South Dakota Con- courts VI, art. stitution Contrary majority opinion, “wheth-

er trace [Bruntz] assets[,]” such funds into on Briefs Nov. added). litigated, (emphasis Decided Feb. had, question If it there would be no but apply prevent a would second of the same issue. lawsuit, complaint

and Bruntz’ that action to trace funds into “the assets (em- acquired the debtor.” reasons, For

phasis these two

bankruptcy lawsuit cannot be considered to this case.

“identical” case, it

In the circumstances of this expose be unfair to her based on the fraud of

to a claim person when, passage

another because of bankruptcy, time and it would be too for the notes (S.D.1983), 153 judgment former fraudulently converted and that these given preclusive not be effect in a subse funds are to Kathryn’s traceable home. quent action subsequent unless the action filed a motion for parties was between the same priv or their granted by ment which was See, ies. Benham, Melbourn v. 292 court and Although followed. (S.D.1980). N.W.2d 335 generally This was several issues have appeal, been raised on privity requirement. referred to as the In requires we believe the issue which Jewelry, Black Hills we eradicat discussion is whether Bruntz’s action is privity requirement ed the in defensive judicata. the doctrine of res so, uses of doing we stat Generally, judgment ed that the doctrine of may upon genuine applied looked with favor where no in a civil action when a new defen issue of fact exists. affirmatively Hamaker v. Kenwel- dant raises this defense to Machine, Inc., Jackson 387 plaintiff reasserting bar a the issues (S.D.1986); SDCL 15-6-56. The plaintiff previously litigated bur proof den of moving party is on the to lost on the merits another defen clearly genuine show that there is no issue dant. Jewelry, supra, Black Hills at 159. fact, of material and that he is entitled to The record in this case reflects that judgment as a matter of law. Wilson previously litigated, against Co., Railway The Great Northern 83 S.D. trustee, the issues of whether 207, 212, (1968). 157 N.W.2d In the fraudulently converted his case, the material facts were not in funds and whether he dispute and it we believe is clear to trace such funds into assets. was entitled to as a matter of A was rendered on the merits of law. Therefore, these issues and Bruntz lost.1 Having case, according reviewed the record in this to our decision in Black Hills hold that we Bruntz’s action is barred allowed Jewelry, should not be 41(b) join operates 1. Rule of the Federal Rules of Civil Proce- ure to under Rule as dure, Dismissals,” "Involuntary provides adjudication (Emphasis entitled an the merits. pertinent part: involuntary entered dismissal bank- Unless the court in its order for dismissal ruptcy jurisdiction, specifies, court was not for lack of otherwise a dismissal under this venue, improper party. provided subsection and or failure to dismissal not rule, Therefore, operates adjudication upon in this other than a dismissal for lack of venue, jurisdiction, improper or for fail- the merits. Bank- taken from the a new defen- No try issues these same dismissing Appel- dant, ruptcy Court’s Order namely, The doctrine of action. being here in a de- lants’ judicata is utilized