Green v. Siegel, Barnett & Schutz

imposed, the court stat- Before sentence 1996 SD 146 еd: Paul T. and Elizabeth Sam GREEN Jane mis, Individually Now, and as Co-Executors this case involves a case where two Mayme Green, the Estate of C. Joint preyed upon ... one of children were ly Severally, Appel Plaintiffs and people the two in the world should lees, have been most able to trust for their care safety; being In- their father. stead; in Mr. this case Peterson became SIEGEL, SCHUTZ, BARNETT & predator upon Mr. those children. Peter- Partnership, engaged prac in the offense, on a and the son is here third Appellant. tice Petitioner

psychological reports do not show that there is such a rеasonable likelihood of No. 19435. society at treatment can- success Supreme Court of South Dakota. Peterson, protected. going I Mr. am impose a life sentence. I do—it is difficult Argued Oct. 1996. give anyone, a life sentence Decided Dec. case, safety, public in the interest of I think there’s don’t sentence —other reasonably given.

sentence which can be

[¶ 31.] Whether Peterson could be rehabili- or not was a fact the trial

tated ¶ Ramos,

court. SD (citations omitted). expert There was

testimony suggesting he could not be rehabil-

itated, given age unwilling- of 40 and his responsibility.

ness to admit There was

testimony contrary. transcript hearing, sentencing demonstrates that the contemplated

trial court the issue of rehabili- pronounced.

tation before sentence was abоve, ‍‌‌‌‌‌​‌​​‌‌‌​​​​​‌‌​​​‌​‌‌​‌​‌‌​​​​‌‌‌​​‌​​‌​‌​‌‍all of view of and all of case,

the circumstances of this this sentence

does not shock the conscience of this court

and we affirm. MILLER, C.J., AMUNDSON,

[If33.] GILBERTSON, JJ.,

KONENKAMP and

concur. Winner, Grossenburg, plaintiffs

J.M. appellees. Richardson, Groseclose, Wyly A. James Sauck, Aberdeen, Wyly, petition- Wise & appellant. er and GILBERTSON, Justice. (hereinafter Siegel, Barnett & 1.] Schütz [¶ Firm), partnership engaged Law Dakota, appeals practice of law South summary judgment ruling the trial court’s 15-2-14.2, providing that SDCL 15-2-13 and the statutes of limitation for state, in this are unconstitutional tice actions VI, § 20 of the South in violation of We reverse and re- Constitution. mand with instruction. AND PROCEDURE

FACTS Sammis, Paul and Elizabeth Green appellees, are the children of plaintiffs and Mayme of her estate. Green аnd co-executors 27,1993. Mayme died June Paul Green hired November three minor Law Firm to draft trusts for his qualify for annual federal children that would purpose of receiv- gift tax exclusions for the Mayme, the ing gifts from himself and from Elizabeth grandmother. children’s Firm a similar hired Law to draft Sammis any future children. for her child and trust attorney in firm who drafted the years later. There was trusts died two representation family by clearly, further palpably plainly when it appears La.wFirm. that the statute violates Further, par- sion of the constitution. Mayme’s From until death in ty challenging constitutionality aof gifts she made substantial to the trusts proving stаtute bears the burden of be- respective for the created children of Paul yond a reasonable doubt that the statute However, Green and Elizabeth Sammis. violates a state or federal constitutional gifts qualify did not for the annual provision.’ gift federal tax exclusions and were consid- ¶48, Hauge, State v. 1996 SD 547 N.W.2d Mayme’s part ered of taxable estate at her (citations omitted); Kyllo, Sammis, According death. ap- to Green and Tobin, Simpson N.W.2d at $128,250.00 proximately in additional federal (S.D.1985). assessed, they perceive estate tax professional negligence to be the result of AND ANALYSIS DECISION Law Firm. [¶ 8.] Statutes of limitation are consti 19,1995, April [¶ 5.] On Green and Sammis tutionally valid enactments that involve the legal malpractice alleging sued Law Firm for Legislature’s balancing hardship professional breach of contract for services by potential just caused bar of a claim by negligently drafting these two trusts. advantage barring with the stale claims. summary judgment Law Firm moved for on Note, Daugaard, Cooperative v. Baltic Build grounds that by the action was barred ing Supply Association: Statutes Limita provided by statutes of limitation SDCL 15- Unconstitutional, tion Held SDLRev 2-13 and 15-2-14.2. The trial court denied principal given The two rеasons the motion and held the statutes to be uncon- the enactment a statute of limitation are “open provision” stitutional under the courts that: Constitution, of the (1) policy it reflects a as declared legislature, given length after Firm [¶ 6.] Law obtained an intermediate of time a defendant should be sheltered order, appeal from raising the trial court’s public policy and furthers the following issue before this Court: allowing people, lapse after the of a Whether the trial ruling court erred in time, plan reasonable their affairs with a SDCL 15-2-13 and 15-2-14.2 are unconsti- degree certainty, disrup- free from the tutional violation of Article protracted tive burden and unknown “open courts” of the South Dako- (2)[it] potential liability ... and avoid[s] ta Constitution? difficulty in-proof keeping and record involving impose.

which suits older claims STANDARD OF REVIEW Greenwald, Conn.App. Sanborn v. 664 A.2d (1995)(upholding 811-12 Our review of the [¶7.] constitu constitutionality tionality of a Kyllo of a statute stat- is de novo. (S.D.1995). Panzer, ute of limitation under constitution). sion of that recently state’s noted that: strong 15-2-13, presumption ‘There is providing six-year [¶ 9.] SDCL laws period, enacted are consti- limitations presumption tutional and the benefiting is rebutted the 1976 trust the Green children.1 (4) provides, pertinent part: taking, 1. SDCL 15-2-13 detaining, injuring An action for where, cases, any goods.... Except special a different limi- statute, (5) prescribed by following tation' is An action for ... other civil actions other than for the rights of real arising of another not from contract and property can be commenced within six specifically not otherwise enumerated in years after the cause of action shall have ac- 15-2-17, §§ 15-2-6 to inclusive. crued: (1) contract, obligation, An action liability, express implied.... (internal 15-2-14.2, provid- Keegan, citations in 1977 and enacted period, We havе held that the act or ing three-year statute of limitations begins running limita- benefiting omission applicable to the 1983 trust whether or not the act or omis- children.2 This action was com- Sammis 19,1995, sion could have later been cured. Id. years April twelve after the menced (quoting Kurylas, drafted, years and nineteen trust Schoenrock). citing drafting the 1976 trust. There- after the fore, either the time within appeal presents This for the first long ago permitted which an action is our time the whether expired. allegation of fraudulent There is no provided in tice action statutes of limitation concealment, Lambеrt, Koenig v. 15-2-13 and 15-2-14.2 are unconstitu- (S.D.1995), or a continuous relation- tional; specifically, whether violate ship, Tappe, VI, Schoenrock N.W.2d “open provision courts” found Article (S.D.1988), 199 such that would toll the statu- § 20 of This our State Constitution. running. tory limitations open, sion holds that: courts shall be “[a]ll every man for an done him in his and Johnson, In 374 N.W.2d [¶ 10.] Hoffman property, person reputation, shall have 117, (S.D.1985), held the statute of 122 we remedy by right due course of and provided by SDCL 15-12-13 com limitations justice, without denial or de- administered running actions mences lay.” ruling In that SDCL 15-2-13 alleged from the date of occurrence of the unconstitutiоnal, 15-2-14.2 were Holy Parish v. malpractice. Cross Daugaard applied court our decision in trial * (S.D.1981) Huether, N.W.2d n 308 Ass’n, Co-op. Building Supply v. Baltic (for early applying case the occurrence (S.D.1984) (holding N.W.2d 419 unconstitu- ‍‌‌‌‌‌​‌​​‌‌‌​​​​​‌‌​​​‌​‌‌​‌​‌‌​​​​‌‌‌​​‌​​‌​‌​‌‍rule). Hoffman, our decision Since deficiency a statute of re- tional construction consistently present that the held repose pose products a statute of legal malpractice limitations for statute of “open provision). under the courts” actions, 15-2-14.2, a rule of occur sharply This Court was divided [¶ 12.] discovery or date of rence rather than date of Daugaard interpretation of Article over Keegan v. First Bank Sioux damage. VI, 20, “open provision. § Both courts” (S.D.1994); Falls, 607, Ha 519 N.W.2d arguments text viewpoints on the base (S.D. Rice, 279, 511 N.W.2d berer v. constitution, en- provision. “Our of this Pairott, 1994); 506 N.W.2d Shippen v. occasionally acted our forefathers (S.D.1993); Bradsky, Kurylgs, Inc. amended, upon which all our is solid core Schoenrock, (S.D.1990); 113-15 Daugaard, premised.” laws must be state 419 N.W.2d at 199-200. guar- § 20 at 425. “Article 349 N.W.2d rule, at- absent an the occurrence Under to the courts for right of access antees torney’s concealment of his fraudulent recognized causes of action redress advice, of limita- negligent the statute her by statute and does common law or attorney malpractice on a claim of of action.” itself create causes not and of alleged begins to run at the time of (Wollman, J., dissenting). In the at 427 Id. the time when the negligence and not from again visit the us we once matter now before consequen- discovered or the interpretation proper of this question of the are to look imposed. We tial provision. clock starts the at what act or omission interpreted have We facts for the running under the instant “guarantee provision as “open courts” purposes. limitations Gridley, 698 F.2d against plication.” See Kotval v. provides "[a]n action 2. SDCL 15-2-14.2 Cir.1983) (8th (holding the limitations agent employee, attorney, a licensed omission, error, statute is in this malpractice, whether mistake or brought tort, and is that accrues before tice action can be commenced contract or based statute; such ac- date of malprac- after the effective alleged only tice, error, years within three after governed of limitations in tion is oc- shall have mistake or omission accrues). the action at the time ap- effect prospective in curred. This section shall wrongs recognized by 625-27, 209, 211-13, ‘for such as are the U.S. S.Ct. L.Ed. laws of the land3 the courts shall be ” remedy.’ Kyllo, and afford a 535 N.W.2d However, in Dau- as noted Kidd, (quoting Simons v. 73 S.D. gaard, the South Dakota Constitution is free (1949)). 38 N.W.2d Oien v. provide greater protections to its citizens Falls, City Sioux granted than are under the federal constitu (S.D.1986), we held this means that (citing tion. 349 N.W.2d at 425 State v. implied “where canse action is or exists (S.D.1976)). Opperman, 247 statutory abrogation, at common law without Thus, analysis we must conduct an plaintiff right litigate has a and the origin creating of our statutes the cause of remedy.” courts will fashion a attorney malpractice, action for their corre of access to the courts sponding statutes of limitation and Article recognized by for causes of action common VI, if determine there is a constitu rights It or statute. does not create tional basis for the existence of the limita Burke, action. Behms v. 229 tions in this case. Simons, (1975); supra. years prior twelve held that have reasonable conditions on a constitution, adoption of our state are not cause action unconstitutional. See Dakota Territorial codified the Clay County, Heikes v. 255 statute which сreates the basis of (S.D.1995); Bar, Baatz v. Arrow currently for breach of a contract which is (S.D.1988). 21-2-1.4 Legis The same Territorial six-year lature also enacted a limi As a matter of federal constitu tations for causes of action for breach of go tional statutes of limitation to the contract, currently that is found at SDCL remedy, matter of not to the destruction of However, 15-2-13.5 this rights. Corp. fundamental Chase Securities two-edged was a sword. The also Donaldson, 304, 314, 325 U.S. passed what is now SDCL 53-9-6 which (1945). 89 L.Ed. provided part “[e]very provision in in a Burns, also restricting party contract enforcing from (Minn.Ct.App.1994). During period рre the rights by it proceedings usual ceding adoption the of our state constitution tribunals, ordinary in limiting or his time to generally so, added). in recognized this the -(emphasis During do is void’’ throughout by country rule the both year, Legislature the fed that same the codified the Holt, Campbell eral and state courts. 115 common law of 20-9-16 party aggrieved 3. SDCL proxi- 1-1-23 declares that the will of the sov- for all the detriment ereign power which, expressed: mately is thereby, caused or in the ordi- nary things, likely course of would be to result (1) States; By the Constitution of the United therefrom.... (2) By authority treaties made under the of the States; United statute, applicable 5. This is the (3) By by Congress statutes enacted the of the accruing prior tice actions is States; United applicable drafting of the Green trust (4) state; By the Constitution of this 15-2-14.2, document. SDCL the statute of limi- (5) By by Legislature; statutes enacted drafting tations to the 1983 of the (6) voters; By by statutes enacted vote of the document, provides three-year Sammis trust (7) By the ordinances of authorized subordinate actions, limitations on bodies; (8) was enacted in 1977. practice procedure prescribed Rules of by adopted by departments, courts or com- missions, boards, officers of the state or its part: "[e]very person 6. SDCL 20-9-1 in pursuant authority subdivisions so to do. responsible person, property, for to the rights by or of another caused his willful acts or provides, pertinent part: 4. SDCL 21-2-1 in by ordinary caused his want of care or skill[.]" Haberer, obligation arising recog- For the contract, breach of this Court damages, except legal malpractice the measure of nized that have “[a] suit action, expressly provided by where otherwise this two causes of one which is for breach of code, compensate negligence. the amount which will contract and another in The case any way in damages. It also tional Convention intended law of and the common modify negli- abrogate existing authority a statute limitations established adopt prop- Legislature to of limita- resulting damage personal our statutes gence (now ap- 15-2-13), “open provisions financial such as a tion.8 Similar courts” erty SDCL' and, Further, many peared it clear state made constitutions loss. time, prevailing that the to the ex- view was common law was invalid that the justice provision prohibited selling enactments. legislative it with tent conflicted judicial requiring 1-1-23 and fees or fines offiсer 5 & now SDCL CivC (1917). Lee, 310,168 P. Supreme Dakota act. In re 64 Okla. of the 1-1-24.7 Court identi- judicially recognized Interpreting and enforced Territory existed in limitations for con- cal to our six-year statute of constitution, Coe, 50 N.W. its own state the North Rathbone v. 6 Dak tract. (1888). Thus, Supreme it is the “laws of Court determined: clear that our first statu- the land” from creation of however, satisfied, prior to quite areWe adoption tory up to the enactments adoption the North Dakota Consti- type constitution allowed for our state tution, meaning origi- extended its had only within the litigation to be commenced boundary, provisions nal and that time. six-year which are to be found in the Constitutions aimed, merely of all of the states were point, Legis Clearly at this the Territorial justice selling by magis- against the modify substantially could alter lature itself; trates, the state other before, but year statutes as one words, access to that a free and reasonable Supreme had held ‘a United States privileges accorded interest, the courts and property, person has no no vested courts, unreasonable without law.’ Munn v. any rule eommon guaranteed to charges, was intended to be Illinois, 24 L.Ed. 8 added) (emphasis еvery existing one. This continues to be day. Co. v. rule of law to Duke Power 140, 145 N.D. County, v. La Moure 27 Malin Group, Study Environmental Carolina (1914). N.W. 2620, 59, 32, 88 n. 98 438 U.S. S.Ct. of our The effect State Constitution [¶ 18.] 32, 595, 2638, 57 620 n. 32 n. L.Ed.2d legislature and was upon the its enactments (1978). Oien, in 393 N.W.2d at 290: discussed Law, Questions 1996 Matter Certif. of Dakota is not The Constitution South ¶10, 18, 183, n. n. 544 198 69 SD lawmaking upon grant but a limitation Silver, 117, v. also Silver may legislature the state and it powers of (1929); 57, 74 L.Ed. 221 Schendt S.Ct. inferentially any expressly law not enact 541, 573, Dewey, 246 Neb. by constitu- prohibited the state or federal (1994). that an .... order to [I]n determine Constitution, find some in- unconstitutional we must The South Dakota act VI, prohibits of a 20, provision § the enаctment adopted in 1889. cluding Article pow- grants than for of such preceded rather The Constitutional Debates omitted). (citations er. any evidence that the Constitu- it are void contract, equity.” Dakota Convention 8. See South Constitutional be in tort or within a case 2, Debates, July (citations 1889 Constitu- Vol. 1889. The upon also relied debates which tional Convention 1877, provision originally drafted in 7. As the 1885 Conven- at Constitutional had occurred stated, territory there is no common "in the 1885 also shows A review of debates tion. by Legislature in case where law is declared modify authority intent slightly to its In this was amended codes.” Consti- of limitation. See Dakota to set statutes part: ‍‌‌‌‌‌​‌​​‌‌‌​​​​​‌‌​​​‌​‌‌​‌​‌‌​​​​‌‌‌​​‌​​‌​‌​‌‍provides, Debates, current version. SDCL 1-1-24 September 1885. tutional Convention drafting of other that arose over the What debate ... common law In this state rules of the force, South Constitution's provisions of the except with conflict are in where Rights language similar focused on the expressed Bill of sovereign power, the will of at guarantees found in other state constitutions §in the manner stated 1-1-23. 3, supra. that time. See footnote many Thus, Although previous members of the “right” Constitution- common law of the Legislators al were to beсome Convention druggist defendant to avoid such a suit Dakota, early the new State statutorily abrogated by woman had been Legislatures felt no constitutional com- corresponding previous and the pulsion modify to strike down or even disability common law of the had woman existing statutes of limitations on contracts “regardless been so removed of what the negligent damage personal property.9 early common law was.” 38 S.D. at Ball, N.W. at 1000. See also Swanson v.

[¶ 19.] The first case which this Court (1940); S.D. 290 N.W. 482 Hoekstra v. opportunity interpret had an (1959). Helgeland, Williams, 78 S.D. is McClain S.D. plaintiff N.W. 72 Therein the recov- In v. Order Amer- UCT Wolfe judgment against ered a the defendant for ica, (1945), 70 S.D. 18 N.W.2d 755 rev. attempted appeal and the defendant $18.00 grounds, on other Order United Commer- despite appeals the fact that a statute limited Wolfe, cial Travelers v. U.S. S.Ct. to those cases which the amount recovered (1947), 91 L.Ed. 1687 we were faced or more. The defendant claimed $75.00 with the of whether a six-month this limitation was in violation of the contained in an insurance provision of our Constitution. contract was valid under South Dakota law. Corson,10 Judge speaking for an unanimous (now statute was SDC 10.0705 Court, provisions held that the of the Consti- ¶ 16). quoted interpret- SDCL 53-9-6 аt In tution, including A'ticle were satis- contract, ing the we held the limi- six-month by allowing fied a trial jury which the only. tation to be remedial defendant had received. The Court further at 758. held that there was no constitutional limita- Simons, at S.D. prerogative tion this Court followed the traditional “limiting appeals to a defined class of VI, § view provided protec- that A’ticle cases, prescribing stage what and in recognized legal rights tion for and did ordinary litigation what court shall end.” 10 expand by barring not itself them Legis- S.D. at 73 N.W. at 74. placing lature from limitations on Scott, Moberg [V20.] sustained: (1917), druggist N.W. 998 a wife sued The above of the constitution is сlaiming druggist loss of consortium had judicial, legislative. guarantee It is a illegally opium sold her husband without a wrongs that ‘for such recognized by as are prescription which resulted in his addiction law the land the courts shall be and ultimate death. The defendant coun- remedy.’ and afford a It does not mean interpreted tered that a statute should be in may that usurp powers the courts which prior accordance with common law to the belong legislative man, govern- effect that branch of a husband as a and not A woman, ment. similar a a constitutional wife as could maintain such an presented rejected Wightman Brown action. We such a contention VI, where the court upon § defendant. We relied Atiele said: ‘The courts have (now however, always and another statute SDCL 25-2-11 as considered and treated amended) statutory provisions, which those creating we held to be rec- not as new ognition rights, giving of the current common law which or as new remedies where prior given, would abolish common law limitations none otherwise are but as placing a right bring on a woman’s a such suit. prevent § South Dakota Constitutional Debates of which includes Article VI 20 of our Constitu- 9. 2, p Legislative tion, Vol 2-3 and Manual of South and at the 1889 Constitutional Convention (1993 Dakota, ed). p 205-208 delegate. as an served officer and The text of VI, § 20 is verbatim from the drafts Judge particularly The views of are Corson adopted at the 1885 and 1889 Constitutional enlightening delegate as he served as a to the Conventions. actively par- Constitutional Convention ticipated Rights in the debate on the Bill of wise, government from tort law remain state of would that branch of the state against century, in the immuta closing the doors of frozen nineteenth is right who which person eventually, has obsolete. Reasonable ble with some enforceable accordance imposed upon available restrictions can be remedy. right Where of action known Kyllo, at remedies. 535 N.W.2d exists, however, remedy given, or no Bar, Baatz v. at Arrow some (S.D.1988). under either the common law or function not to Our cre- provisions those constitutional elevate common-law remedies over ate none.’ Legislature’s ability to alter reme those dies, rather, (internal interpret but we are citations ‘life, liberty, laws as effect the Behrns, 89 S.D. Kyl property of the citizens of State.’ failed a violation Article we to find lo, Taking guid 535 N.W.2d at 901.... against guest in a challenge statute Supreme ance the United States not protected an that did as interpretation in its of the federal “wrongs recognized by constitute constitution, see that the we ‘Constitution Oien, Subsequently, the land.” law of rights, does not the creation of new forbid that a cause of at we held where recognized by ones or the abolition of old statuto action exists at common without permissible the common to attain a litigate ry abrogation plaintiff has a Co., legislative object.’ Duke Power remedy. the courts will fashion n. n. U.S. analysis not This method of has [¶24.] (quoting n. 32 L.Ed.2d Silver haven аlways resulted in a for defendants. Silver, 117, 122, 57, 58, U.S. S.Ct. Recently Kyllo, we held (1929)). L.Ed. sovereign immunity could not constitu tionally employees perform extend to state construing a similar constitution- doing ministerial In so we relied ing tasks. provision, Supreme Court of North al prior early upon our cases held who noted that those advocate Carolina adoption Article during the time of the fail expansive interpretation of employee liable public “by give regard to the due sufficient words negligently performing such ministerial law.” course of “The law of exist tasks. common absolutely not abol- For the has Cоnstitu ed well before the South Dakota de- against all builders and ished claims tion, personal employees’ as did improvements they signers arising out wrongful Id. at 903. See conduct.” Rather, designed. it has estab- built or Ruth, 84, 90, 68 N.W. beyond such lished time brought if the not be even claims long recently we affirmed our Most injury giving rise to the claim does standing of this interpretation elapsed. occur until the time Questions provision in Matter Certif. ¶ Law, 203: 1996 SD are confident that condition cognizability of the claim does not ‍‌‌‌‌‌​‌​​‌‌‌​​​​​‌‌​​​‌​‌‌​‌​‌‌​​​​‌‌‌​​‌​​‌​‌​‌‍guarantee legal all not a that

‘Open courts’ is guarantee for compensa violate injured persons will rеceive full be a every ‘injury done’ there shall once will that or that remedies existent tion constitutionally ‘remedy.’ ‘remedy’ at always Kyllo, N.W.2d remain so. 535 Dist., that 901; [(1990)]. cf. 301 substantive Wright S.C. Nor 282], does this [v. Colleton cause 391 S.E.2d provision assure County ^[564] action once School by the words means guaranteed must be guaranteed ‘for that ‘by an due course of remedy constitutionally one done’ is that law.’ This is qualified legally power legislature has the cognizable. The recognized common law will remain in the which the circumstances under judicial or limita to define legislative from immune n un- cognizable those remedy legally is Kyllo, at N.W.2d tion or elimination. 535 it 901; der which is not. Wright, at 570. Other 391 S.E.2d 404 (S.D.1995) 147, Wedgewood Corp., (quoting City

Lamb v. 308 N.C. N.W.2d 150 (1983). Russell, 302 S.E.2d 882 Pierre N.W.2d 228 (1975) Andera, Big (quoting Eagle 341 Thus, [¶ it is clear that at the time of 27.3 (8th Cir.1975))); 508 F.2d see also adoption state of Levy, Parker v. 417 U.S. 94 S.Ct. jurisdiction recognized in our con- law as (1974); 41 L.Ed.2d 439 Broadrick Okla valid, stitutionally a limitation on actions for homa, 37 attorney (including mal- breach contract L.Ed.2d 830 Plaintiffs claim the stat practice) damage negligent property to applied utes to their case “un years exist six the date of the constitutionally door locked courtroom negligent breach of contract act or family opportunity before the Green had an beyond. omission and not Green and Sam- open disagree. Although it.” convincing us mis cite to no South Dakota Plaintiffs claim their cause of action did not legal authority contrary. historical family until damaged accrue was follow We further note that we to were Mayme’s ing death and the of her unconstitutional, rule SDCL 15-2-13 we can taxes, estate estate additional see rational basis limit the effect of legal malpractice this state that ac ruling malpractice. such a It would alleged malpractice tions accrue when the radicаlly altering have the effect of SDCL 122; Hoffman, occurs. at See to state in all 15-2-13 actions for breach 612; Haberer, Keegan, 519 at N.W.2d negligent damage of contract and personal 287; 85; Shippen, N.W.2d at at N.W.2d property, as well other as all actions covered Inc., 113-15; Kurylas, at Scho by that the statute would uncon- enrock, 419 N.W.2d at 199-200. stitutional thus unenforceable until the reality, argument the Plaintiffs’ discovered, damage years be it 17 as oc- underlying cry unconstitutionality here, length longer curred of time into urging discovery of a rule of perpetuity. than rather the rule of occurrence that is the Although the current limi- Parish, Holy law of this State. See Cross legal malpractice provided tations in actions *; Hoffman, N.W.2d at n. 15-2-14.2 SDCL was not enacted until Schoenrock, 122; at N.W.2d 419 N.W.2d at argument Green makes no it 199-200; Inc., Kurylas, at 113- N.W.2d differently should be treated than 15- 15; 85; Haberer, Shippen, 506 N.W.2d at 2-13, applies legal malpractice ac- 287; at Keegan, N.W.2d at 612. N.W.2d Kotval, accruing before 1977. See case, alleges negligent drafting F.2d at 348. It is well settled that documents, of trust “occurrence” conditions, Legislature may set reasonable drafting and 1983 the two documents. limitations, including plaintiffs time on a making any judgment Without on the merits bring injury. cause action for action, occurred, of this if at Heikes, (upholding See N.W.2d all, in 1976 and 1983. The statute of limita constitutionality under the tions runs from date of the breach of requiring deposit sion of statutes of delin- duty from the time when the extent prior quent taxes to a suit for resulting injury Holy is determined. taxes). property sold for Herein can there Parish, *; Cross at n. N.W.2d Hoff surprise be no 15-2-14.2 enact- man, 122; at Keegan, N.W.2d ed 1977 and the trust was not Sammis 612; Haberer, 287; at N.W.2d at drafted until 1983. Shippen, 506 Kurylas, 113-15; Schoenrock, [¶ 30.] We conclude that case, the facts of Dough- statutes 199-200. Francis M. applied Annotation, erty, constitutional as to Greеn Sam- and Statute Limita When of “ Begins ‘A claim Upon Against mis. defendant cannot that a stat to Run Action Attorney Malpractice, ute is unconstitutional in some of its reaches 32 A.L.R.4th applied if it is constitutional him.’” Although as this issue has been Stores, Hy Court, State v. Vee Food 533 addressed numerous times this the in [¶ either statute We reverse and remand with Legislature 34.] has amended anything summary judgment a in fa here to reflect but rule of struction to enter at issue malpractice legal actions. If a occurrence of Firm. vor Law discovery appropriate rule or is the MILLER, C.J., and [¶ 35.] AMUNDSON running the trigger basis to of KONENKAMP, JJ., concur. arguments presented to the such should be Legislature for its consideration as what is SABERS, J., specially. concurs appropriate public policy this State. SABERS, (concurring specially). Justice simply legal is no [¶ 32.] There basis legal agree ‍‌‌‌‌‌​‌​​‌‌‌​​​​​‌‌​​​‌​‌‌​‌​‌‌​​​​‌‌‌​​‌​​‌​‌​‌‍three-year I “clearly, of hold that these statutes limitation statute of limitations contained palpably, plainly” Article VI 20. violate 15-2-14.2 is not unconstitutional. The Heikes, prede 255. As our N.W.2d oppor- reason is obvious. The client an struggle with cessors have stated tunity get opinion a time after second issues, sympathize with “[w]e those performed. three-year thе services are unjust, find but we are who period op- a client reasonable ... judicial bound to exercise restraint portunity act on or make other the advice judgment and wisdom for not substitute our arrangements. One or from an burned killed Behrns, 89 S.D. at legislature.” that of a explosion by faulty underground con- caused 108, 229 at 93. See Accounts Man N.W.2d struction, Daugaard, has no Williams, as occurred in gement, Inc. v. (S.D.1992); lies the differ- Dep’t opportunity. such Therein Safety Public of Haddenham, (S.D. ence. 1983). limiting' If more fair of a method period a time be specific

actions to of would lengthen bring time to discovery damage adopt

action or rule event, triggering Legislature must 1SD arguments as these make determination Eli, ELI and James M. Chester J. public considerations within the policy Appellees, Plaintiffs and to address and domain to be in modify if it such action deems Jody ELI, Appellant, L. Defendant and public welfare.11 do not These statutes destroy bring a cause restrict Associates; Hauge Supply A.Y. McDonald rather, malpractice, but action for Inc.; Co.; Service, Collection Credit time in which a only establish the Co.; Supply Supply Fensel’S McFarland “A right. plaintiff must assert Co.; Co.; Viborg Coop and Yankton Oil еxtinguish a limitations does not create or Co., Defendants. N.O. Nelson right, only places a limitation on reme but No. 19463. dy may tolled waived.” Mill Butler, Supreme Dakota. County 235 Neb. man v. (1990) (citations on Briefs Oct. 1996. Considered upon an restriction avail This is reasonable 8, 1997. Decided Jan. remedy con able stitutionally impose. Matter of Certif of ¶ Law,

Questions SD guardians welfare of of the liberties and stated in mate Justice Oliver Wendell Homes 11. As Missouri, Kan, Ry. May, quite great degree as the people Tex. & 638, 639, (1904): L.Ed. 971 courts. Note, Cooperative (quoted Daugaard v. Baltic provisions must be admin- Great constitutional Building Supply Limita- Association: Statutes play al- Some must be istered with caution. Unconstitutional, machine, 30 SDLRev tion (1984)). joints Held. and it lowed for the legislatures are ulti- be remembered that must

Case Details

Case Name: Green v. Siegel, Barnett & Schutz

Court Name: South Dakota Supreme Court

Date Published: Dec 31, 1996

Citation: 557 N.W.2d 396

Docket Number: None

Court Abbreviation: S.D.