Schoenrock v. Tappe

419 N.W.2d 197, 1988 S.D. LEXIS 18, 1988 WL 4671

• Court: South Dakota Supreme Court
• Decided: January 27, 1988
• Docket: 15484
• Status: Published

Opinions

MILLER, Justice

(on reassignment).

This is a legal malpractice action which was dismissed by the trial court on the ground that the action was barred by the statute of limitations, SDCL 15-2-14.2. We affirm, reiterating that the statute of limitations is an occurrence rule, extending the continuous treatment doctrine to legal malpractice actions, but determining that under the facts presented here the statute of limitations bars the action as a matter of law.

FACTS

Appellant Arlo J. Schoenrock (Schoen-rock) commenced this lawsuit claiming in his first cause of action that Attorney Lee Tappe (Tappe) was negligent in rendering a title opinion to him. In his second cause of action, Schoenrock alleged that Tappe failed to correct defects in the title after promising that he would do so.

Because consideration of the time frame is critical to this decision, the salient events will be set forth below in chronological order.

1. In October, 1980, Schoenrock entered into a contract to purchase three quarters of land from Raymond and Viola Sturgeon. He had previously leased this land from Sturgeons.

2. On February 20, 1981, Tappe rendered to Schoenrock a title opinion as designated attorney for the U.S. Farmers Home Administration (FmHA). The title opinion is on a standard FmHA Preliminary Title Opinion form showing Schoenrocks as loan applicants and applicants for the title examination.

This title opinion failed to mention that the property was subject to a certain wildlife easement to the United States Department of the Interior, U.S. Fish & Wildlife Service (Wildlife Service). The wildlife easement had been given by a prior owner in 1964 and contained various perpetual restrictions on the use of the land in order to provide for certain waterfowl production areas. It, among other things, specifically prohibits the drainage of lakes, ponds, sloughs, and similar conditions of the land. (Schoenrock was generally familiar with the provisions of such easements as some existed on other lands he had previously acquired.)

3. In March, 1981, Schoenrock had the land ditched and drained, contra to the restrictions on the easement.

4. In March (or possibly April) 1981, Schoenrock went to Tappe's office to retrieve the abstracts on the property. At that time, Schoenrock noted the wildlife easement entered on the abstract and asked Tappe about it. Schoenrock claims that Tappe told him it was nothing to be concerned about and that if Schoenrock had a problem with the easement that Tappe would take care of it. Tappe has no recollection of this conversation. Tappe’s first recollection of a conversation dealing with the easement is in November 1984, which conversation will be referred to later in this chronology.

5. In April, 1981, Schoenrock received a certified letter from Wildlife Service informing him of the wildlife easement on the subject property. He did not contact Tappe.

6. In February, 1983, Schoenrock met with representatives of Wildlife Service and the United States Attorney to discuss problems caused by his ditching and draining the land contrary to the easement. Schoenrock did not contact Tappe, but rather consulted another attorney with whom he “usually” dealt.

7. In the summer of 1983, according to his complaint, Schoenrock was again contacted by the Wildlife Service and advised that he still had a problem and that he should take corrective action or face litigation by the federal government. Schoen-rock did not contact Tappe.

8. On February 20, 1984, three years had passed since Tappe issued the title opinion.

9. In March or April of 1984, three years had passed since Schoenrock retrieved the abstracts from Tappe and had the claimed conversation that Tappe would take care of any problems arising from the existence of the easement.

10. In November, 1984, for the first time since March or April 1981, Schoen-rock contacted Tappe about the easement problem. (There is no mention of this contact in Schoenrock’s complaint.) This is Tappe’s earliest recall of any discussion concerning the omission of the easement from the title opinion. In any event, Tappe unsuccessfully attempted to assist Schoen-rock by making various contacts with Wildlife Service and the South Dakota congressional delegation.

11. In the fall of 1984, after being unsuccessful in negotiating with Wildlife Service, Schoenrock filled the drainage ditches and generally returned the land to its previous condition.

12. On November 25, 1985, Schoen-rock’s attorney signed the summons and complaint initiating this action. It is not clear from the record when the action was actually commenced, since the record is silent as to when the pleadings were served on Tappe. There is no certificate of service or admission of service in the file. Although the summons and complaint are dated in November, 1985, they were not filed with the clerk of courts of Charles Mix County until January 21, 1986. The first document actually filed in the case was an Order Disqualifying All Circuit Judges entered by Presiding Judge Hertz on January 2, 1986, which was filed on January 3, 1986. Tappe’s answer and motion to dismiss is dated April 18, 1986, and was filed on May 20, 1986.

DECISION

Pursuant to a motion for summary judgment, the trial court found that the action was barred by the statute of limitations¹ and dismissed the action. This appeal followed.

THE STATUTE OF LIMITATIONS AS AN OCCURRENCE RULE

The statute of limitations is found at SDCL 15-2-14.2 and reads as follows:

An 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.

Schoenrock contends that summary judgment was improper because, as a matter of law, the statute of limitations did not begin to run until he sustained some injury, which he claims did not occur until he finally reconverted his land to its original condition.²

In effect, Schoenrock urges us to interpret South Dakota’s statute of limitations as embodying the “date of damage” rule to determine when the statute begins to run for attorney malpractice actions. However, in South Dakota, neither the legislature nor this court’s decisions apply this rule.

The general rule is that in the absence of an attorney’s fraudulent concealment of his 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. See Annot. 18 A.L.R.3d 978, 986-87 (1968).

Hoffman v. Johnson, 374 N.W.2d 117, 122 (S.D.1985); see generally Annot., When Statute of Limitations Begins to Run Upon Action Against Attorney for Malpractice, 32 A.L.R.4th 260 (1984); R. Mallen and B. Levitt, Legal Malpractice §§ 389, 390, 393 (1981); D. Meiselman, Attorney Malpractice: Law & Procedure §§ 5.4, 5.6, 5.7 (1980) (discussing the injury, discovery and occurrence rules).

Although our Hoffman decision actually applied another statute of limitations which was in effect before the enactment of SDCL 15-2-14.2, the court observed that the clearly expressed legislative intent of both SDCL 15-2-14.1 (medical malpractice) and SDCL 15-2-14.2 was to have the statute run from the date the alleged malpractice occurred. Hoffman, supra, citing Holy Cross Parish v. Huether, 308 N.W.2d 575 (S.D.1981); Alberts v. Giebink, 299 N.W.2d 454 (S.D.1980). Under the “occurrence rule” as expressed by our statute, a cause of action for negligently examining a title accrues at the time the attorney provides the client with the erroneous information, in effect, when the omission occurs. Attorney Malpractice, supra, § 5:12 at 90, n. 14. Thus, in this case, South Dakota’s “occurrence rule” statute of limitations would normally run from the time that Tappe rendered the erroneous title opinion, which was in February, 1981, and the action would normally have been barred after February, 1984.

THE CONTINUING REPRESENTATION RULE

The running of our “occurrence rule” statute of limitations would normally be an easy matter to calculate from the date of an erroneous title opinion. Schoenrock, however, also presents us with the issue of whether the “continuing treatment doctrine” should be applied to prevent the statute of limitations from running in a legal malpractice action.

In applying the continuing treatment doctrine to medical professionals, we have held that a medical professional’s continuing treatment of a patient, which serves as the basis for a malpractice action, prevents a statute of limitation from running until the treatment ceases. Wells v. Billars, 391 N.W.2d 668 (S.D.1986); see also Alberts v. Giebink, supra. Other courts, which have applied the continuous treatment doctrine to medical malpractice actions, have also extended it to legal malpractice actions. Siegel v. Kranis, 29 A.D.2d 477, 288 N.Y.S.2d 831 (1968); see, generally, Legal Malpractice, supra, § 391. See also Amfac Distribution Corp. v. Miller, 138 Ariz. 155, 673 P.2d 795 (App.1983), approved as supplemented, 138 Ariz. 152, 673 P.2d 792 (applying the discovery rule); Wall v. Lewis, 393 N.W.2d 758 (N.D.1986) (applying the discovery rule); McCormick v. Romans, 214 Va. 144, 198 S.E.2d 651 (1973).

We now hold that the “continuing treatment doctrine” applies not only to medical malpractice actions but is also extended to legal malpractice actions. However, for the reasons outlined below, an application of the continuous representation doctrine to the facts of this case will not save Schoenrock’s cause of action.

APPLICATION OF CONTINUOUS REPRESENTATION DOCTRINE

Schoenrock argues that a continuous representation occurred in March or April of 1981, at which time Tappe made the disputed comment that he would take care of the easement problem thus saving Schoen-rock’s case from the statute of limitations. Schoenrock further argues that Tappe’s unsuccessful attempt to resolve the matter through South Dakota’s congressional delegation in November, 1984, could be viewed (by a jury) as evidence of the continuing representation.

First, statute of limitations questions are normally for the jury. Jewson v. Mayo Clinic, 691 F.2d 405 (8th Cir.1982); Schenebeck v. Sterling Drug, Inc., 423 F.2d 919 (8th Cir.1970); Sam v. Balardo, 411 Mich. 405, 308 N.W.2d 142 (1981); Noland v. Freeman, 344 N.W.2d 419 (Minn.1984); Grondahl v. Bulluck, 318 N.W.2d 240 (Minn.1982); McCarthy Bros. v. Hanskutt, 29 S.D. 535, 137 N.W. 286 (1912). Schoen-rock asserts that there is a genuine issue of fact regarding whether Tappe agreed to do something to assist him with the easement problems in March or April of 1981. Even assuming such a factual dispute, the statute of limitations issue still remains, under the facts of this case, a question of law within the exclusive province of the court. Tonegatto v. Budak, 112 Mich.App. 575, 316 N.W.2d 262 (1982).

Reiterating, the statute of limitations period for legal malpractice actions is three years (SDCL 15-2-14.2) and a cause of action for negligently examining a title accrues at the time the attorney provides the client with the erroneous information (occurrence rule). Further, under the continuous representation doctrine, the accrual of a malpractice cause of action will be tolled until the “representation” (or “treatment” in medical malpractice cases) terminates. Legal Malpractice, supra, § 391 at 462-63; see cases cited in Koffler, Legal Malpractice Statutes of Limitations: A Critical Analysis of a Burgeoning Crisis, 20:2 Akron Law Review 209 (1986); Annot., 32 A.L.R.4th 260, supra.

We hold, however, that the continuous representation doctrine applies only to malpractice actions when there is a “clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney....” Muller v. Struman, 79 A.D.2d 482, 485, 437 N.Y.S.2d 205, 208 (1981) citing Citibank, NA v. Suthers, 68 A.D.2d 790, 418 N.Y.S.2d 679 (1979); Grago v. Robertson, 49 A.D.2d 645, 370 N.Y.S.2d 255 (1975); Siegel v. Kranis, supra; see also Peduto v. Durr, 97 A.D.2d 959, 468 N.Y.S.2d 953 (1983). This relationship is one “which is not sporadic but developing and involves a continuity of the professional services from which the alleged malpractice stems.” Muller, supra 437 N.Y.S.2d at 208. Furthermore, the application of this doctrine should only be applied where the “professional’s involvement after the alleged malpractice is for the performance of the same or related services and is not merely continuity of a general professional relationship.” Muller, supra 437 N.Y.S.2d at 207 citing inter alia Naetzker v. Brocton Central School Dist., 50 A.D.2d 142, 376 N.Y.S.2d 300 (1975) rev’d on other grounds 41 N.Y.2d 929, 394 N.Y.S.2d 627, 363 N.E.2d 351 (1977); Tool v. Boutelle, 91 Misc.2d 464, 398 N.Y.S.2d 128 (1977); Dura-Bilt Remodelers v. Albanese, 86 Misc.2d 172, 382 N.Y.S.2d 455 (1976). See generally Wells v. Billars, 391 N.W.2d 668 (S.D.1986).

The above considerations, which are normally indicative of a continuous attorney/client relationship, simply are not present in this case.

Here, three years and seven months had passed with no contact whatsoever between the parties. The Tappe-Schoenrock relationship was sporadic, at best. During the three-year seven-month gap, Tappe did nothing to make Schoenrock believe he was doing anything to remedy the easement problem. Nor did Schoen-rock, who knew of the problem and was constantly in battle with the Wildlife Service over the situation, contact Tappe or in any manner inquire whether Tappe was doing anything to alleviate the problem. In fact, Schoenrock dealt with another attorney. There simply was no continuity in the parties’ relationship. The record does not support that the attorney/client relationship was in effect (if ever) after April, 1981. See Muller, supra.

Tappe’s alleged comments made in April of 1981 were definitely related to the work performed in February of 1981. The November, 1984, work was also “related” to the February, 1981, work. However, the “continuity” element is missing from the November, 1984, representation. Obviously, there was a three-year nine-month gap between the November, 1984, work and the February, 1981, act (alleged erroneous title opinion) and a three-year seven-month gap if we apply the continuous representation doctrine to the April, 1981, contact. Therefore, the statute of limitations had run. Bennin v. Ramapo General Hospital, 72 A.D.2d 736, 421 N.Y.S.2d 243 (1979) (medical malpractice); Tool v. Boutelle, 91 Misc.2d 464, 398 N.Y.S.2d 128 (1977). Additionally, Schoenrock’s contact with Tappe in November of 1984, purportedly to seek help in rectifying the error previously made, will not revive the cause of action after the statute of limitations has already run. See Tonegatto, supra; Bennin, supra; Tool, supra citing Naetzker, supra.

Schoenrock argues that Tappe’s unsuccessful attempt to resolve the matter through South Dakota congressional delegation in November of 1984 might be viewed by a jury as a continuous representation; We disagree. As stated earlier, by November of 1984, the statute of limitation had already run. How long should Tappe’s alleged comment, even if agreed to be true, remain effective? Three years? Six years? The legislature has said three years and we so hold, unless there is a continuous representation within the period of limitations. See generally Wells, supra. This is the most important factor in this case (i.e., a total absence of any claimed continuing representation within the period of limitations). The only claimed negligence is the alleged negligent title opinion, which was completed in February of 1981. Schoenrock’s return to Tappe’s office in April of 1981 could arguably be characterized as a “continuing representation,” within the limitation period, which would toll the statute from running until that time. Citibank, supra. However, Schoenrock’s return to Tappe in November of 1984 does not toll the statute to this date, as this contact was at least seven months past the expiration of the three-year statute of limitations. Citibank, supra; Peduto, supra; Tool, supra; Ben-nin, supra; Wells, supra. Although the attorney cannot terminate the attorney/client relationship unilaterally by simply failing to provide services, “the relationship does not continue indefinitely simply because there is no formal termination.” Vollgraff v. Block, 117 Misc.2d 489, 492, 458 N.Y.S.2d 437, 439 (1982).

Schoenrock relies on Wells, in asserting that Tappe was still representing Schoen-rock in November of 1984, and claims that this may toll the cause of action for the negligent February, 1981, act. However, the complaint alleges nothing about the November, 1984, visit. Furthermore, in Wells, there was a “continued treatment” (as it was a medical malpractice case) within the original period of limitations. Here, the alleged “continued representation” was not within the period of limitations and thus the statute bars Schoenrock’s action.³

Lastly, even considering the alleged conversation between Tappe and Schoenrock in March or April, 1981, together with the fact that Schoenrock did not go see Tappe until November of 1984, the only possible way Schoenrock could prevail is if he could make some type of a “discovery” time argument, by establishing that he did not discover the malpractice until some time which appropriately tolled the statute. See Glad v. Gunderson, Farrar, Aldrich, 378 N.W.2d 680 (S.D.1985). In Glad, we stated that “this statute of limitations ... will be tolled until the cause of action is discovered or might have been discovered, if there is fraudulent concealment of the cause of action.” Id. at 682 (citations omitted). Here, however, there was no claim of fraudulent concealment and no evidence of the same.

Therefore, the trial court is affirmed.

WUEST, C.J., and KONENKAMP, Circuit Judge, concur. MORGAN, J., concurs specially. HENDERSON, J., dissents. KONENKAMP, Circuit Judge, sitting for SABERS, J., disqualified.

1 . Although the trial court’s memorandum opinion mentions the wildlife easement as "a matter of public record," which Schoenrock had knowledge of, the sole basis for the motion for summary judgment was the statute of limitations. We consider the statute of limitations issue as the only question clearly presented to and decided by the trial court.

2 . We emphasize that we express no opinion on the question of whether Tappe’s examination of the title was, in fact, negligent. See SDCL ch. 43-30, appendix, standard 1.1 (attitude of attorney examining title). We are deciding only the peripheral question of whether an action for his alleged negligence may be barred by the statute of limitations.

3 . Trial judges should note that in cases such as this, where it is extremely important to ascertain the date when the statute of limitations begins to run or is tolled, special interrogatories to the jury will be necessary to clearly determine the factual issues (affecting the application of the statute of limitations and/or the continuous representation doctrine). See McCarthy Bros., supra.