Lead Opinion
[¶ 1.] Siegel, Barnett & Sсhütz (hereinafter Law Firm), a partnership engaged in the practice of law in South Dakota, appeals from the trial court’s summary judgment ruling that SDCL 15-2-13 and 15-2-14.2, providing the statutes of limitation for legal malpractice actions in this state, are unconstitutional in violation of Article VI, § 20 of the South Dakota Constitution. We reverse and remand with instruction.
FACTS AND PROCEDURE
[¶ 2.] Paul Green and Elizabeth Sammis, plaintiffs and appellees, are the children of Mayme Green and co-executors of her estate. Mayme died June 27,1993.
[¶ 3.] In November 1976, Paul Green hired Law Firm to draft trusts for his three minor children that would qualify fоr annual federal gift tax exclusions for the purpose of receiving gifts from himself and from Mayme, the children’s grandmother. In 1983, Elizabeth Sammis hired Law Firm to draft a similar trust for her child and any future children. The attorney in the firm who drafted the trusts died two years later. There was no
[¶ 4.] From 1976 until Mayme’s death in 1993, she made substantial gifts to the trusts created for the respective children of Paul Green and Elizabeth Sammis. However, these gifts did not qualify for the annual federal gift tax exclusions and were considered part of Mayme’s taxable estate at her death. According to Green and Sammis, apprоximately $128,250.00 in additional federal estate tax was assessed, which they perceive to be the result of professional negligence of Law Firm.
[¶ 5.] On April 19,1995, Green and Sammis sued Law Firm for legal malpractice alleging breach of contract for professional services by negligently drafting these two trusts. Law Firm moved for summary judgment on grounds that the action was barred by the statutes of limitation provided by SDCL 15-2-13 and 15-2-14.2. The trial court denied the motion and held the statutes to be unconstitutional under the “open courts provision” of the South Dakota Constitution, Article VI, § 20.
[¶ 6.] Law Firm obtained an intеrmediate appeal from the trial court’s order, raising the following issue before this Court:
Whether the trial court erred in ruling SDCL 15-2-13 and 15-2-14.2 are unconstitutional in violation of Article VI, § 20, the “open courts” provision of the South Dakota Constitution?
STANDARD OF REVIEW
[¶7.] Our review of the constitutionality of a statute is de novo. Kyllo v. Panzer,
‘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 сonstitutionality of a statute bears the burden of proving beyond a reasonable doubt that the statute violates a state or federal constitutional provision.’
State v. Hauge,
ANALYSIS AND DECISION
[¶ 8.] Statutes of limitation are constitutionally valid enactments that involve the Legislature’s balancing of the hardship caused by the potential bar of a just claim with the advantage of barring stale claims. Note, Daugaard, v. Baltic Cooperative Building Supply Association: Statutes of Limitation Held Unconstitutional, 30 SDLRev 157 (1984). The two principal reasons given for the enactment of a statute of limitation are that:
(1) it reflects a policy of law, as declared by the legislature, that after a given length of time a defendant should be sheltered from liability and furthers the public policy of allowing people, after the lapse of a reasonable time, to plan their affairs with a degree of certainty, free from the disruptive burden of protracted and unknown potential liability ... and (2)[it] avoid[s] the difficulty in-proof and record keeping which suits involving older claims impose.
Sanborn v. Greenwald,
[¶ 9.] SDCL 15-2-13, providing a six-year statute of limitations period, is applicable to the 1976 trust benefiting the Green children.
[¶ 10.] In Hoffman v. Johnson,
Under the occurrence rule, absent an attorney’s fraudulent concealment of his or her negligent advice, the statute of limitations on a claim of attorney malpractice begins to run at the time of the alleged negligence and not from the time when the negligence is discovered or the consequential damages are imposed. We are to look at what act or omission starts the clock running under the instant facts for the statute of limitations purposes.
Keegan,
[¶ 11.] This appeal presents for the first time the question whether our legal malpractice action statutes of limitation provided in SDCL 15-2-13 and 15-2-14.2 are unconstitutional; specifically, whether they violate the “open courts” provision found in Article VI, § 20 of our State Constitution. This provision holds that: “[a]ll 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.” In ruling that SDCL 15-2-13 and SDCL 15-2-14.2 were unconstitutional, the trial court aрplied our decision in Daugaard v. Baltic Co-op. Building Supply Ass’n,
[¶ 12.] This Court was sharply divided in Daugaard over the interpretation of Article VI, § 20, the “open courts” provision. Both viewpoints base their arguments on the text of this provision. “Our constitution, as enacted by our forefathers and occasionally amended, is solid core upon which all our state laws must be premised.” Daugaard,
[¶ 13.] We have interpreted the “open courts” provision as a “guarantee that
[¶ 14.] As a matter of federal constitutional law, statutes of limitation go to the matter of remedy, not to the destruction of fundamental rights. Chase Securities Corp. v. Donaldson,
[¶ 15.] However, as noted in Dau-gaard, the South Dakota Constitution is free to provide greater protections to its citizens than are granted under the federal constitution.
[¶ 16.] In 1877, twelve years prior to the adoption of our state constitution, the Dakota Territorial Legislature codified the statute which creates the basis of recovery for breach of a contract which is currently SDCL 21-2-1.
Clearly at this point, the Territorial Legislature could substantially alter or modify these statutes as only one year before, the United States Supreme Court had held ‘a person has no property, no vested interest, in any rule of the eommon law.’ Munn v. Illinois,94 U.S. 113 , 134,24 L.Ed. 77 , 87 (1876). This continues to be the existing rule of law to his day. Duke Power Co. v. Carolina Environmental Study Group, Inc.,438 U.S. 59 , 88 n. 32,98 S.Ct. 2620 , 2638, n. 32,57 L.Ed.2d 595 , 620 n. 32 (1978).
Matter of Certif. of Questions of Law,
[¶ 17.] The South Dakota Constitution, including Article VI, § 20, was adopted in 1889. The Constitutional Debates which preceded it are void of any evidence that the Constitutional Convention in any way intеnded to abrogate or modify the existing authority of our Legislature to adopt statutes of limitation.
We are quite satisfied, however, prior to the adoption of the North Dakota Constitution, the meaning had extended its original boundary, and that the provisions which are to be found in the Constitutions of аll of the states were aimed, not merely against the selling of justice by the magistrates, but by the state itself; in other words, that a free and reasonable access to the courts and to the privileges accorded by the courts, and without unreasonable charges, was intended to be guaranteed to every one. (emphasis added)
Malin v. La Moure County,
[¶ 18.] The effect of our State Constitution upon the legislature and its enactments was discussed in Oien,
The Constitution of South Dakota is not a grant but a limitation upon the lawmaking powers of the state legislature and it may enact any law not expressly or inferentially prohibited by the state or federal constitutions .... [I]n order to determine that an act is unconstitutional we must find some provision that prohibits the enactment of a statute rather than for grants of such power. (citations omitted).
[¶ 19.] The first case in which this Court had an opportunity to interpret Article VI, § 20 is McClain v. Williams,
[V 20.] In Moberg v. Scott,
[¶ 21.] In Wolfe v. Order of UCT of America,
[¶ 22.] In Simons,
The above provision of the constitution is judicial, not legislative. It is a guarantee that ‘for such wrongs as are recognized by the law of the land the courts shall be open and afford a remedy.’ It does not mean that the courts may usurp powers which belong to the legislative branch of government. A similar constitutional question was presented in Brown v. Wightman where the court said: ‘The courts have however, always considered and treated those provisions, not as creating new rights, or as giving new remedies where none otherwise are given, but as placing а limitation upon the Legislature to prevent*403 that branch of the state government from closing the doors of the courts against any person who has a legal right which is enforceable in accordance with some known remedy. Where no right of action is given, however, or no remedy exists, under either the common law or some statute, those constitutional provisions create none.’
(internal citations omitted).
[¶ 23.] In Behrns,
[¶24.] This method of analysis has not always resulted in a haven for defendants. Recently in Kyllo,
[¶ 25.] Most recently we affirmed our longstanding interpretation of this constitutional provision in Matter of Certif. of Questions of Law,
‘Open courts’ is not a guarantee that all injured persons will receive full compensation or that remedies once existent will always remain so. Kyllo,535 N.W.2d at 901 ; cf. Wright [v. Colleton County School Dist.,301 S.C. 282 ], 391 S.E.2d [564] at 570 [(1990)]. Nor does this provision assure that a substantive cause of a action once recognized in the common law will remain immune from legislative or judicial limitation or elimination. Kyllo,535 N.W.2d at 901 ; Wright,391 S.E.2d at 570 . Otherwise, the state of tort law would remain frozen in the nineteenth century, immutable and eventually, obsolete. Reasonable restrictions can be imposed upon available remedies. Kyllo,535 N.W.2d at 901 ; Baatz v. Arrow Bar,426 N.W.2d at 298, 304 (S.D.1988). Our function is not to elevate common-law remedies over the Legislature’s ability to alter those remedies, but rather, we are to interpret the laws as they effect the ‘life, liberty, or property of the citizens of the State.’ Kyllo,535 N.W.2d at 901 .... Taking guidance from the United States Supreme Court in its interpretation of the federal constitution, we see that the ‘Constitution does not forbid the сreation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object.’ Duke Power Co.,438 U.S. at 88 n. 32,98 S.Ct. at 2638 n. 32,57 L.Ed.2d at 620 n. 32 (quoting Silver v. Silver,280 U.S. 117 , 122,50 S.Ct. 57 , 58,74 L.Ed. 221 (1929)).
[¶ 26.] In construing a similar constitutional provision, the Supreme Court of North Carolina noted that those who advocate an expansive interpretation of this provision fail to give sufficient regard to the words “by due course of law.”
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 brоught 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 ‘remedy’ 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 un- ■ der which it is not.
[¶ 27.3 Thus, it is clear that at the time of the adoption of Article VI, § 20, the state of the law in our jurisdiction recognized as constitutionally valid, a limitation on actions for breach of contract (including attorney malpractice) and negligent damage to property to exist for six years from the date of the breach of contract by a negligent act or omission and not beyond. Green and Sam-mis cite us to no convincing South Dakota legal or historical authority to the contrary.
[¶ 28.] We further note that were we to rule SDCL 15-2-13 unconstitutional, we can see no rational basis to limit the effect of such a ruling to legal malpractice. It would have the effect of radically altering SDCL 15-2-13 to state that in all actions for breach of contract and negligent damage to personal property, as well as all other actions covered by that statute, the statute would be unconstitutional and thus unenforceable until the damage is discovered, be it 17 years as occurred here, or any longer length of time into perpetuity.
[¶ 29.] Although the current statute of limitations in legal malpractice actions provided by SDCL 15-2-14.2 was not enacted until 1977, Green makes no argument that it should be treated differently than SDCL 15-2-13, which applies to legal malpractice actions accruing before 1977. See Kotval,
[¶ 30.] We conclude that under the facts of this case, these statutes are constitutional as applied to Green and Sam-mis. “ ‘A defendant cannot claim that a statute is unconstitutional in some of its reaches if it is constitutional as applied to him.’” State v. Hy Vee Food Stores, Inc.,
[¶ 31.] In reality, the Plaintiffs’ argument underlying their cry of unconstitutionality is an urging of a rule of damages or discovery rather than the rule of occurrence that is the law of this State. See Holy Cross Parish,
[¶ 32.] There simply is no legal basis to hold that these statutes of limitation “clearly, palpably, and plainly” violate Article VI § 20. Heikes,
[¶ 33.] These statutes of limitation do not restrict or destroy the right to bring a cause of action for legal malpractice, but rather, only establish the period of time in which a plaintiff must assert this right. “A statute of limitations does not create or extinguish a right, but only places a limitation on a remedy which may be tolled or waived.” Millman v. County of Butler,
[¶ 34.] We reverse and remand with instruction to enter summary judgment in favor of Law Firm.
Notes
. SDCL 15-2-13 provides, in pertinent part:
Except where, in special cases, a different limitation' is prescribed by statute, the following civil actions other than for the recovery of real property can be commenced only within six years after the cause of action shall have accrued:
(1) An action upon a contract, obligation, or liability, express or implied....
(4) An actiоn for taking, detaining, or injuring any goods....
(5) An action for ... any other injury to the rights of another not arising from contract and not otherwise specifically enumerated in §§ 15-2-6 to 15-2-17, inclusive.
. SDCL 15-2-14.2 provides "[a]n action against a licensed attorney, his agent or employee, for malpractice, error, mistake or omission, whether based upon contract or tort, can be commenced only within three years after the alleged malpractice, error, mistake or omission shall have occurred. This section shall be prospective in application.” See Kotval v. Gridley,
. SDCL 1-1-23 declares that the will of the sovereign power is expressed:
(1) By the Constitution of the United States;
(2) By treaties made under the authority of the United States;
(3) By statutes enacted by the Congress of the United States;
(4) By the Constitution of this state;
(5) By statutes enacted by the Legislature;
(6) By statutes enacted by vote of the voters;
(7) By the ordinances of authorized subordinate bodies;
(8) Rules of practice and procedure prescribed by courts or adopted by departments, commissions, boards, officers of the state or its subdivisions pursuant to authority so to do.
. SDCL 21-2-1 provides, in pertinent part:
For the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom....
. This is the statute, applicable to legal malpractice actions accruing prior to 1977, which is applicable to the 1976 drafting of the Green trust doсument. SDCL 15-2-14.2, the statute of limitations applicable to the 1983 drafting of the Sammis trust document, provides a three-year limitations period on malpractice actions, and was enacted in 1977.
. SDCL 20-9-1 provides in part: "[e]very person is responsible for injury to the person, property, or rights of another caused by his willful acts or caused by his want of ordinary care or skill [.]" In Haberer,
. As originally drafted in 1877, this provision stated, "in this territory there is no common law in any case where the law is declared by the codes.” In 1903; this was slightly amended to its current version. SDCL 1-1-24 provides, in part:
In this state the rules of the common law ... are in force, except where they conflict with the will of the sovereign power, expressed in the manner stated in § 1-1-23.
See footnote 3, supra.
. See South Dakota Constitutional Convention Debates, Vol. 2, July 1889. The 1889 Constitutional Convention also relied upon debates which had occurred at the 1885 Constitutional Convention. A review of thе 1885 debates also shows no intent to modify the authority of the Legislature to set statutes of limitation. See Dakota Constitutional Convention Debates, September 1885. What debate that arose over the drafting of other provisions of the South Dakota Constitution's Bill of Rights focused on the language of similar guarantees found in other state constitutions at that time.
. South Dakota Constitutional Debates of 1889, Vol 2, p 2-3 and Legislative Manual of South Dakota, p 205-208 (1993 ed).
. The views of Judge Corson are particularly enlightening as he served as a delegate to the 1885 Constitutional Convention and actively participated in the debate on the Bill of Rights which includes Article VI § 20 of our Constitution, and at the 1889 Constitutional Convention served as an officer and delegate. The text of Article VI, § 20 is verbatim from the drafts adopted at the 1885 and 1889 Constitutional Conventions.
. As Justice Oliver Wendell Homes stated in Missouri, Kan, & Tex. Ry. v. May,
Great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine, and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite a great a degree as the courts.
(quoted in Note, Daugaard v. Baltic Cooрerative Building Supply Association: Statutes of Limitation Held. Unconstitutional, 30 SDLRev 157, 165 (1984)).
Concurrence Opinion
(concurring specially).
[¶ 37.] I agree that the three-year legal malpractice statute of limitations contained in SDCL 15-2-14.2 is not unconstitutional. The reason is obvious. The client has an opportunity to get a second opinion any time after the services are performed. The three-year period provides the client a reasonable opportunity to act on the advice or make other arrangements. One burned or killed from an explosion caused by faulty underground construction, as occurred in Daugaard, has no such opportunity. Therein lies the difference.