[¶ 1.] This dispute arises over the construction of the Twin City Mall in Lead, South Dakota. In constructing the Mall, BDL, the owner of the Mall, removed part of a slope of a hill, which provided lateral support to the Homeowners’ property. The Homeowners brought suit against BDL and FMG, the soil engineers, alleging that removal of the slope caused ground movement, which in turn caused damage to their property. BDL filed a cross-claim against FMG for indemnity or contribution. The trial court granted summary judgment to FMG on both the Homeowners’ claims and BDL’s cross-claim. We affirm.
FACTS AND PROCEDURE
[¶ 2.] In 1985, BDL began making plans for the construction of the Twin City Mall in Lead, South Dakota. The chosen site of the mall was located at the bottom of a steep slope. Behind the mall, resting on the hillside, is the Bender Park Neighborhood, which consists of First, Second and Third Streets. The construction of the mall entailed cutting into the slope. Therefore, BDL hired FMG to perform a geotechnical exploration of the proposed site to determine whether it was safe to proceed.
[¶ 3.] In a report to BDL, FMG opined that “the configuration’s stability is marginal, although theoretically safe from mass failure.” Soon after, construction of the Mall began and was substantially completed by May 1,1987. As early as the fall of 1986, a Bender Park resident noticed a crack on the ground of Third Street. Thereafter, many other problems were reported in the Bender Park Neighborhood, such as large cracks in foundation walls and movement of homes. There were also sewer and water main breaks in the area.
[¶ 4.] The Third Street Committee was then formed by the city. This Committee was organized to address concerns and monitor the situation. The City of Lead, BDL, and the homeowners had representatives on the Committee. At the meeting held on July 23, 1987, a representative from FMG, Rick Baker, was present to answer questions concerning the cause of the ground movement. Baker stated that “it was his opinion that the cut on the hillside below First Street was not the cause of the movement in the area.”
[¶ 5.] The Committee publicly met four times and several homeowners remained convinced that the construction of the Mall caused the ground movement. However, after the city’s monitoring of the movement through September of 1990 revealed nothing significant, the monitoring was discontinued.
[¶ 6.] The winter of 1993 and spring of 1994 brought with them a huge amount of rainfall and snow. Due to the extreme amount of melting and moisture, drainage increased and the hill began to move. The Mall also showed a significant amount of movement. BDL retained GME Consul *216 tants of Minneapolis to investigate the cause of the slope instability and the movement of the Mall.
[¶ 7.] GME advised that the Mall be evacuated and that remedial measures be put in place. The remedial measures included digging long and deep trenches along the Mall’s parking lot, which was below First Street and up on Third Street. The trenches were completed in 1996 at a cost of nearly $4,000,000. It is disputed by the parties whether movement continues.
[¶ 8.] Thereafter, in 1998, thirty-three homeowners in the Bender Park Neighborhood filed suit against BDL and FMG. The Plaintiffs asserted six counts of wrongdoing by BDL and FMG for their part in the development, design, and construction of the Twin City Mall. Essentially, the Plaintiffs allege that BDL and FMG failed to design, engineer, and construct the Mall in such a way that would have prevented removal of the slope of the hill. They allege that this hill provided lateral support for their real property located on the hillside behind the Mall. Defendant BDL filed a cross-claim against Defendant FMG seeking indemnity or contribution. After four years of discovery, BDL and FMG moved for summary judgment.
[¶ 9.] After hearing oral arguments on the motion, the trial court denied summary judgment to BDL but granted summary judgment to FMG on Homeowners’ claims and Defendant BDL’s cross-claims. The trial court found that Homeowners’ claims against FMG were barred under the ten-year limitation period prescribed in SDCL 15-2A-3. Likewise, BDL’s cross-claim against FMG was found to be barred under the ten-year limitation period found in SDCL 15-2A-3. Since that time, the Plaintiff Homeowners and BDL have entered into a settlement. Further, BDL has assigned its claims against FMG to the Plaintiff Homeowners. FMG has filed an objection to this assignment. However, neither the assignment nor the objection to the assignment changes the substantive issues involved in this appeal.
[¶ 10.] On this appeal, we are asked to review the following:
1. Whether the trial court properly dismissed Homeowners’ claim that fraudulent concealment on the part of FMG tolled the ten-year statute of limitation contained in SDCL 15-2A-3.
2. Whether BDL’s constitutional rights were violated when the trial court, under the terms of SDCL 15-2A-3, dismissed BDL’s cross-claim against FMG for indemnity or contribution.
STANDARD OF REVIEW
[¶ 11.] According to
Holzer v. Dakota Speedway, Inc.,
Summary judgment is authorized “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law.” SDCL 15-6-56(c). We will affirm only when there are no genuine issues of material fact and the legal questions have been correctly decided. Bego v. Gordon,407 N.W.2d 801 , 804 (S.D.1987). All reasonable inferences drawn from the facts must be viewed in favor of the non-moving party. Morgan v. Baldwin,450 N.W.2d 783 , 785 (S.D.1990). The burden is on the moving party to clearly show an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law. Wilson v. Great N. Ry. Co.,83 S.D. 207 , 212,157 N.W.2d 19 , 21 (1968). “Summary judg *217 ment will be affirmed if there exists any basis which would support the trial court’s ruling.” Wolff v. SD Game, Fish and Parks Dept.,1996 SD 23 , ¶ 32,544 N.W.2d 531 , 537 (citing St. Paul Fire & Marine Ins. Co. v. Schilling,520 N.W.2d 884 , 886 (S.D.1994)) (emphasis added).
[¶ 12.] When reviewing the constitutionality of a statute, our review is de novo.
Green v. Siegel, Barnett & Schutz,
ANALYSIS AND DECISION
[¶ 13.] 1. Whether the trial court properly dismissed Homeowners’ claim that fraudulent concealment on the part of FMG tolled the ten-year statute of limitation contained in SDCL 15-2A-3.
[¶ 14.] FMG contends that it is entitled to summary judgment because the limitation period in the applicable statute of limitation has run. Specifically, SDCL 15-2A-3 provides:
No action to recover damages for any injury to real or personal property, for personal injury or death arising out of any deficiency in the design, planning, supervision, inspection and observation of construction, or construction, of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury or death, may be brought against any person performing or furnishing the design, planning, supervision, inspection and observation of construction, or construction, of such an improvement more than ten years after substantial completion of such construction. The date of substantial completion shall be determined by the date when construction is sufficiently completed so that the owner or his representative can occupy or use the improvement for the use it was intended.
[¶ 15.] However, Plaintiff Homeowners argue that the facts supporting their causes of action were fraudulently concealed by FMG. Therefore, they argue SDCL 15-2A-7 applies. This statute reads:
The limitations contained in this chapter may not be asserted as a defense by any person who is guilty of fraud, fraudulent concealment, fraudulent misrepresentations or willful or wanton misconduct, in furnishing the design, planning, supervision, inspection and observation of construction, or construction, of improvements to real property.
[¶ 16.] The trial court granted summary judgment to FMG despite Plaintiff Homeowners’ claim that fraudulent concealment tolled the ten-year statute of limitation. The trial court based its decision on three grounds. These bases were that there was no confidential relationship between FMG and the Homeowners and therefore, FMG did not have the duty to disclose; the statements by FMG were expression of opinions, rather than affirmations of fact; and FMG disclosed their reports and opinions with the members of the Third Street Committee in 1987. While any of the three rationales provides an independent basis for affirmance, we will examine each separately.
[¶ 17.] Whether FMG had a confidential relationship with Homeowners.
[¶ 18.] The trial court found that there was no confidential relationship between FMG and Plaintiff Homeowners. Further, it correctly found that in the absence of a confidential relationship, there was no duty for FMG to disclose information to the Homeowners. “In the absence of a fiduciary relationship, fraudulent con
*218
cealment does not exist simply because a cause of action remains undiscovered, but Only when the defendant affirmatively prevents discovery.”
Purdy v. Fleming,
[¶ 19.] Clearly FMG’s professional services were hired by BDL and not the Homeowners. Nevertheless, Homeowners argue that there was a confidential relationship between Rick Baker of FMG and them because Homeowners placed their “trust and confidence” in this representative from FMG at the Third Street Committee meeting. The minutes for the Third Street Committee meeting held on July 23, 1987, reflect that a representative from BDL announced the presence of Baker, the soil expert, to “answer some of the questions that were asked at the last meeting.” Further, they argue, the fact that Plaintiff Homeowners are laypersons and Baker is an engineer with much technical expertise, “invited confidence.”
[¶ 20.] We have defined a fiduciary relationship as one which “imparts a position of peculiar confidence placed by one individual in another. A fiduciary is a person with a duty to act primarily for the benefit of another.”
Nelson v. WEB Water Development Ass’n, Inc.,
[¶ 21.] We find that no confidential or fiduciary relationship existed between FMG and the Homeowners. FMG was employed by BDL to conduct soil engineering work. FMG stood in the shoes of BDL and had an arms-length relationship to the Homeowners.
See Trouten v. Heritage Mut. Ins. Co.,
(1) It would threaten the fiduciary’s duty of loyalty to and effective representation of its client’s interests;
(2) It would add responsibilities to non-clients creating a danger of conflicting duties with clients;
(3) The number of persons to whom a fiduciary might be accountable could be limitless; and
(4) It would imperil the fiduciary-client relationship.
Id. (citations omitted). Moreover, at no time did FMG hold itself out as being in charge of the Homeowners’ property rights or in some manner representing their interests.
[¶ 22.] Having determined that no confidential relationship existed between FMG and the Homeowners, we next turn to whether FMG took affirmative steps to conceal the facts that supported Homeowners’ causes of action. In
Klinker,
homeowners brought an action against the builders, alleging faulty workmanship in construction of the home.
[¶ 23.] Whether the statements made by FMG to Homeowners were expressions of opinions or facts.
[¶ 24.] Alternatively, Homeowners allege that certain statements made by Baker, the representative from FMG, at the Third Street Committee Meeting, were “designed to prevent” Homeowners’ discovery of their causes of action. The following passage is taken out of the minutes from the meeting which contains Baker’s comments to the Committee:
“[Creep] movement is slow, but ongoing, on any hillside. It’s natural,” Baker stated. He stressed that there was a lot of inter-related things in this area too, such as watering, traffic, underground blasting, etc. He stated that it was his opinion that the cut on the hillside below First St. was not the cause of the movement in that area, (emphasis added).
[¶25.] The Homeowners go on to argue that despite telling the Homeowners that it was FMG’s opinion that removal of the toe of the hill was not to blame for their homes’ movements, “the true and complete concerns” that FMG had, as reflected in the internal memos and correspondence to BDL, “were facts that were not disclosed” to the Homeowners.
[¶ 26.] In order to be actionable, fraud must be based upon the misrepresentation of material fact. As we noted in Klinker:
Fraud has been defined as “a representation ... made as a statement of fact, which was untrue and known to be untrue by the party making it, or else *220 recklessly made; [and] made with intent to deceive and for the purpose of inducing the other party to act upon it.” To be actionable fraud, a party must further “rely on it and [be] induced thereby to act to his injury or damage.”
[¶ 27.] FMG’s opinions cannot form the basis of a fraudulent concealment claim. FMG did not take any affirmative steps to hide the facts that supported Homeowners’ cause of action. Moreover, there is no evidence that any of the Homeowners relied on anything that was said by Baker at the Third Street Committee Meeting. Significantly, in the 1980’s many of the Homeowners remained convinced that construction of the Mall was the cause of the ground movement, even after Baker informed them that it was his personal opinion that cutting into the slope was not the cause. It appears from the record, that a cause of action could have been brought back in 1987, when the Committee began to meet. Prior to that time Homeowners were aware of cracks in the ground, in foundation walls, movement of homes and sewer and water breaks in their area. That was the reason for the creation of the Committee. The Homeowners were on notice then that there was a possible correlation between construction of the Mall and the ground movement.
[¶ 28.] Whether the facts supporting Homeowners’ claims were readily available to them.
[¶ 29.] Finally, Homeowners argue that whether FMG made a complete disclosure to the members of the Third Street Committee is a question of fact, and therefore, summary judgment was improper. Basically, this argument focuses on the Third Street Committee meetings and the statements made by Baker, the representative from FMG. Essentially, this argument is the same argument made above.
[¶ 30.] The trial court found that “the reports and opinions of FMG were shared with members of the Third Street Committee in 1987. FMG’s ... report findings were readily available during the summer of 1987.” Additionally, because we have held that no confidential relationship existed between FMG and the Homeowners, then the Homeowners must prove that FMG took affirmative steps to hide the facts underlying the causes of action. The Homeowners are unable to do so.
[¶ 31.] For the foregoing reasons, we hold that the fraudulent concealment exception to SDCL 15-2A-3 does not apply to this case. As such, the Homeowners’ claims against FMG are barred by the ten-year statute of limitation. There are no material issues of fact in question and therefore, summary judgment was properly granted to FMG.
[¶ 32.] 2. Were BDL’s constitutional rights violated when the trial court, under the terms of SDCL 15-2A-3, dismissed BDL’s cross-claim against FMG for indemnity or contribution.
[¶ 33.] Pursuant to SDCL 15-2A-3, the trial court granted summary judgment to FMG on BDL’s cross-claim *221 for indemnity or contribution. This statute provides that “... [no] ... action for contribution or indemnity ... may be brought ... more than ten years after substantial completion of such construction.” It is undisputed by the parties that the cross-claim was made after the expiration of the ten-year statute of repose 2 set out in SDCL 15-2A-3. Application of the express terms of SDCL 15-2A-3 requires dismissal of BDL’s cross-claim against FMG. However, BDL, who has assigned this cause of action to Homeowners, alleges that the statute is unconstitutional in violation of Article VI, § 20 of the South Dakota Constitution, 3 our “open courts” provision, because it bars its cross-claim for contribution or indemnity before it has accrued.
[¶ 34.] In
Green,
‘There is a strong presumption that the laws enacted by the legislature are constitutional and the presumption is rebutted only when it clearly, palpably and plainly appears that the statute violates a provision of the constitution. Further, the party challenging the constitutionality of a statute bears the burden of proving beyond a reasonable doubt that the statute violates a state or federal constitutional provision.’
(additional citations omitted.)
[¶ 35.] In
Daugaard v. Baltic Co-op Bldg. Supply Ass’n,
which the Homeowners rely on for support, several injured plaintiffs brought personal injury suits against Baltic Builders and other defendants after a propane explosion at the Baltic Elevator Company.
[¶ 36.] More recent decisions by this Court have been in contrast to, and not supportive of,
Daugaard’s
holding.
Knowles v. United States,
A person has no property, no vested interest, in any rule of the common law ... Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to changes of time and circumstance.
Id.
¶ 84,
[¶ 37.] Also in 1996, in
Klinker,
we applied SDCL 15-2A-3 to dismiss the plaintiffs case, which was brought after the ten-year limitation period.
[¶ 38.] The same year we decided
Knowles and Klinker,
this Court also decided
Green,
[¶ 39.] In Green, we cited to the North Carolina Supreme Court, which upheld a statute similar to the one at issue in this case. In finding its statute constitutional, that court stated:
For the legislature has not absolutely abolished all claims against builders and designers arising out of improvements they built or designed. Rather, it has established a time period beyond which such claims may not be brought even if the injury giving rise to the claim does not occur until the time period has elapsed.
We are confident that this condition to the legal cognizability of the claim does not violate the constitutional guarantee for that every ‘injury done’ there shall be a ‘remedy.’ The ‘remedy1 constitutionally guaranteed ‘for an injury done’ is qualified by the words ‘by due course of law.’ This means that the remedy constitutionally guaranteed must be one that is legally cognizable. The legislature has the power to define the circumstances under which a remedy is legally cognizable and those under which it is not.
Green,
[¶ 40.] Moreover, we examined the historical context in which the open courts provision was enacted in South Dakota in 1889. We upheld the challenged statute as: (1) there is nothing in the constitutional debates of 1885 and 1889 supportive of the thesis that the open courts provision strikes down limitations upon actions,
Green,
[¶ 41.] In
Wegleitner v. Sattler,
[T]he Constitution was written and adopted in the light of the conditions and well-known laws ... as they then existed in Montana, and must be construed accordingly. The salutary declarations of section 6 simply recognize fundamentals of government dear to the American heart; they assert nothing new in the way of constitutional declaration, and clearly were not intended to affect statutory laws then existing.
[¶ 42.] In
Vilhauer v. Horsemens’ Sports, Inc.,
Given the above nature of the understanding of the drafters of the constitutional provisions and its contemporary judicial interpretations, it is clear that these provisions in South Dakota and surrounding states were meant to allow unhindered access to the courthouse by a person who had a valid cause of action based on existing statute or the common law, timely and properly brought, who then would be allowed to present their case to a human fact finder. In other words under those conditions, a litigant was guaranteed its day in court ... [In past cases we have] found no basis for a claim that Art. VI, § 20 could by itself become a sword to create a cause of action or become a shield to prohibit statutorily recognized barriers to recovery such as a statute of limitations.
Vilhauer,
[¶ 43.] In
Peterson,
[¶ 44.] Under a
Daugaard
analysis, as advocated by Homeowners, if ten years is violative of “open courts” constitutional protection, what about 20 years, 50 years or 100 years or “any longer length of time into perpetuity”?
Green,
Where the constitutional validity of a statute depends upon the existence of facts, courts must be cautious about reaching a conclusion respecting them contrary to that reached by the legislature; and if the question of what the facts establish be a fairly debatable one, it is not permissible for the judge to set up his opinion in respect of it against the opinion of the lawmaker.
Knowles,
[¶ 45.] Based on our above analysis since Daugaard, it can no longer be supported as a correct interpretation of Article VI, § 20 of the South Dakota Constitution. As such Daugaard is set aside in favor of our rulings in Knowles; Green; Klinker; Wegleitner and Peterson. If the people of this state wish an expanded scope for our open courts constitutional provision, the amendment process provides the appropriate avenue for that change.
[¶ 46.] In the case at hand, the Legislature did not abolish the right-to-sue design professionals. It simply limits that right to ten years after substantial completion of construction. FMG did not have any access to, or control over, the Mall once it *225 was completed. Furthermore, since 1986, BDL knew there were indicators of ground movement that possibly could have been caused by construction of the Mall.
[1147.] We hold SDCL 15-2A-3 constitutional 6 and therefore, affirm the trial court’s grant of summary judgment.
Notes
. We also had occasion to examine this concept in the earlier case of
Taggart v. Ford Motor Credit,
. According to
Peterson v. Burns,
. Article VI, § 20 of the South Dakota Constitution states:
All courts shall be open, and every man for an injury done him in his property, person or reputation, shall have remedy by due course of law, and right and justice, administered without denial or delay.
. The Legislature finds that subsequent to the completion of construction, persons involved in the planning, design and construction of improvements to real estate lack control over the determination of the need for, the undertaking of and the responsibility for maintenance, and lack control over other forces, uses and intervening causes which cause stress, strain, wear and tear to the improvements and, in most cases, have no right or opportunity to be made aware of or to evaluate the effect of these forces on a particular improvement or to take action to overcome the effect of these forces. Therefore, it is in the public interest to set a point in time following the substantial completion of the project after which no action may be brought for errors and omissions in the planning, design and construction of improvements to real estate, whether these errors and omissions have resulted or may result in injury or not, unless the person involved in the planning, design and construction of the improvements was guilty of fraud, fraudulent concealment, fraudulent misrepresentation, willful or wanton misconduct, or unless the person involved in the planning, design and construction of improvements to real estate expressly warranted or guaranteed the improvement for a longer time period. This legislation is determined to be in the public interest and in the interest of equating the rights of due process between the prospective litigants in the areas of planning, design and construction of improvements to real property in an equitable manner, while adjusting the standard of care so that persons attempting to bring actions under a general standard of care against persons involved in the planning, design and construction of improvements to real estate only have ten years to bring actions following substantial completion against those involved in the planning, design and construction, and following that ten-year time period actions may be brought against such persons only if they are guilty of fraud, fraudulent concealment, fraudulent misrepresentation, breach of express warranties or guarantees, or willful or wanton misconduct in the planning, design and construction of improvements to real estate.
. We also cited to
Sigman v. Seafood Ltd. Partnership I,
. We have carefully examined the other constitutional claims of BDL and conclude they are without merit.