Slota v. Imhoff & Assocs., P.C.

• Citation: 949 N.W.2d 869
• Decision Date: 30 September 2020
• Docket Number: #28496
• Parties: Fred SLOTA, Plaintiff and Appellant, v. IMHOFF AND ASSOCIATES, P.C., a California Professional Corporation, Henry Evans, Shannon Dorvall, Defendants and Appellees, and Manuel de Castro, Jr., Defendant.
• Court: Supreme Court of South Dakota

949 N.W.2d 869

Fred SLOTA, Plaintiff and Appellant,

v.IMHOFF AND ASSOCIATES, P.C., a California Professional Corporation, Henry Evans, Shannon Dorvall, Defendants and Appellees,andManuel de Castro, Jr., Defendant.

#28496

Supreme Court of South Dakota.

ARGUED OCTOBER 2, 2019

OPINION FILED September 30, 2020

Rehearing Denied November 2, 2020

JAMES D. LEACH, Rapid City, South Dakota, Attorney for plaintiff and appellant.

JASON R. SUTTON, THOMAS J. WELK, MITCHELL W. O'HARA of Boyce Law Firm, LLP, Sioux Falls, South Dakota, Attorneys for defendants and appellees Imhoff & Associates, Henry Evans and Shannon Dorvall.

JENSEN, Justice

[¶1.] Fred Slota was sentenced to thirty years in the state penitentiary after he was convicted of first-degree rape. Slota's conviction was later vacated when a habeas court determined that Slota's legal representation at trial was constitutionally deficient and prejudicial. Slota sued the law firm of Imhoff and Associates, P.C. (Imhoff) and attorneys Henry Evans, Shannon Dorvall, and Manuel de Castro Jr.¹ (hereinafter jointly referred to as "Attorneys"), alleging legal malpractice, and fraud and deceit related to their representation of Slota on the criminal charges. Imhoff and Attorneys moved for a judgment on the pleadings, arguing that Slota's claims were time-barred by SDCL 15-2-14.2. The circuit court granted the motion, holding that the claims were barred. Slota appeals the dismissal of his claims for fraud and deceit. We affirm.

Facts and Procedural History

[¶2.] On February 13, 2013, Fred Slota was indicted on charges of first-degree rape and sexual contact with a child under the age of sixteen. The alleged victim was a seven-year-old foster child living with Slota and his wife.

[¶3.] Slota and his wife began a search to retain private counsel to defend Slota on the charges. They located Imhoff, a California law firm. Imhoff's website displayed phrases such as "We have well-versed knowledge regarding laws in each state .... You can rest assured in knowing we will do everything in our power to secure the most favorable outcome possible .... We provide high-quality legal representation in 48 states .... Our firm can vigorously defend your rights, liberties, and reputation against child molestation charges."

[¶4.] Slota retained Imhoff to defend him. Imhoff hired South Dakota attorneys Evans and de Castro to assist in Slota's defense. Evans had not previously defended a rape case or tried a case to a jury. Imhoff also assigned one of its own associates, Dorvall, to assist with Slota's defense. Slota alleges that Imhoff falsely told him that Dorvall was an expert in defending sex crimes. Evans and Dorvall represented Slota during the rape trial. It was anticipated prior to trial that de Castro would participate in the trial, but he was not present because of a scheduling conflict in an unrelated case. On March 26, 2014, a jury found Slota guilty of sexual contact with a minor and first-degree rape following a three-day trial.²

[¶5.] After the trial, Slota retained new counsel. Slota's new counsel, along with Evans and Dorvall, represented Slota at sentencing on May 30, 2014. Following the sentencing hearing, de Castro and Evans sent Slota letters confirming that neither Attorneys, nor Imhoff, would provide further representation to Slota. Slota's new counsel filed a notice of appeal to this Court on June 23, 2014. This Court affirmed Slota's conviction on March 18, 2015.³

[¶6.] Slota filed a petition for writ of habeas corpus in September 2015. Among other errors, he alleged Attorneys were ineffective in failing to introduce prior statements the child victim made to two different counselors denying Slota had sexually assaulted her. Slota also claimed that Evans and Dorvall were ineffective in failing to cross-examine witnesses concerning the child's exculpatory statements, and failing to object to the State's closing arguments that the child had consistently claimed that Slota had sexually assaulted her.

[¶7.] The habeas court held an evidentiary hearing and found that "but for trial counsel's unprofessional errors, the result of the trial would have been different." It issued its ruling more than a year later on June 7, 2017, entering a judgment vacating the convictions and ordering a new trial. The State did not appeal the decision. Slota was remanded from the penitentiary to county jail and eventually released. The State later dismissed the criminal charges against Slota without prejudice. The charges have not been refiled.

[¶8.] Slota commenced this action in July 2017, more than three years after the attorney-client relationship between Slota and Imhoff and Attorneys had ended. Slota alleged legal malpractice against Imhoff and Attorneys; fraud and deceit against Imhoff, Evans, and Dorvall; and an intentional abandonment claim against de Castro. Slota alleged that Imhoff hired inexperienced counsel for the least amount of money possible and that Attorneys failed to provide competent representation at the criminal trial, which resulted in his conviction.

[¶9.] Slota also claimed that Imhoff made several false representations to him regarding the firm's capabilities, including that Imhoff specialized in defending sex crimes; that Imhoff would hire good lawyers who specialized in sex crimes; that Imhoff was able to provide high quality legal representation in 48 states; that Imhoff would see that Slota received quality legal services by specialists in sex crimes; and that Dorvall was an expert in defending sex crimes.

[¶10.] Additionally, Slota claimed that during the representation, Imhoff and Attorneys made false representations to Slota concerning his criminal defense, including that a polygraph examination would be obtained and that experts would be hired for Slota's defense. Slota further claimed that false representations were made to him concerning the extent of Attorneys’ preparation and involvement in the case and the admissibility of prior exculpatory statements made by the victim. He alleged that Attorneys also intentionally suppressed certain information, such as Evans’ lack of experience.

[¶11.] Imhoff and Attorneys moved for judgment on the pleadings pursuant to SDCL 15-6-12(c), arguing the claims were time-barred by the three-year statute of repose for legal malpractice under SDCL 15-2-14.2.⁴ Slota resisted, arguing that the claims for fraud and deceit were subject to the six-year statute of limitations for fraud. The circuit court determined that Slota commenced the action more than three years after Attorneys’ conduct occurred, and that the fraud and deceit claims were merely reassertions of the legal malpractice claims that were barred by the three-year repose period. As such, the court dismissed all the claims. Slota argues on appeal that the circuit court erred in dismissing the fraud and deceit claims.

Analysis and Decision

[¶12.] "A question of statutory interpretation is a question of law which we review de novo." Loesch v. City of Huron , 2006 S.D. 93, ¶ 3, 723 N.W.2d 694, 695. We also review a ruling granting a motion for judgment on the pleadings de novo. N. American Truck & Trailer, Inc. v. M.C.I. Commc'n Serv's, Inc. , 2008 S.D. 45, ¶ 6, 751 N.W.2d 710, 712. "Judgment on the pleadings provides an expeditious remedy to test the legal sufficiency, substance, and form of the pleadings." Loesch , 2006 S.D. 93, ¶ 3, 723 N.W.2d at 695. "It is only an appropriate remedy to resolve issues of law when there are no disputed facts." Id.

[¶13.] Consistent with our recent holding in Robinson-Podoll v. Harmelink, Fox, & Ravnsborg Law Office , Slota concedes that SDCL 15-2-14.2 is a statute of repose that bars his legal malpractice claims. 2020 S.D. 5, ¶ 25, 939 N.W.2d 32, 41-42. He argues, however, that under our prior decisions his fraud and deceit claims against Imhoff and Attorneys were timely commenced within the six-year statute of limitations for fraud in SDCL 15-2-13(6). Slota also maintains that his fraud claims arise from the fiduciary duties owed by Imhoff and Attorneys that are not subject to the repose statute in SDCL 15-2-14.2.

[¶14.] Attorneys and Imhoff respond that the fraud and deceit claims relate to the effectiveness of their legal representation and are mere reassertions of the malpractice claims. They claim that SDCL 15-2-14.2 broadly establishes a three-year repose period for any claims, however denominated, arising out of an attorney-client relationship. Attorneys also argue that a judgment on the pleadings was proper because Slota failed to plead fraud with particularity as required by SDCL 15-6-9(b), and the alleged false misrepresentations are not actionable because they involved opinions about future events, rather than past facts. Because of our disposition on the statute of repose, we need not reach the question of whether the allegations of fraud were sufficient.

[¶15.] This Court has previously discussed the applicability of occurrence-based statutory time periods for professional malpractice actions and other statutes of limitations for a cause of action arises out of a professional relationship.⁵ For instance, Morgan v. Baldwin considered the applicability of a time period to commence a legal malpractice claim under SDCL 15-2-14.2, and the six-year contract statute of limitations in SDCL 15-2-13(1), in a partnership dispute between plaintiffs and their attorney partner. 450 N.W.2d 783 (S.D. 1990). The plaintiffs and the attorney had entered into a partnership agreement to own and operate a campground. The attorney's role in the partnership was to provide administrative and legal services for the business. When a dispute arose between the parties, plaintiffs sued the attorney, alleging claims for both professional legal malpractice and breach of contract.

[¶16.] In determining the appropriate limitation period, Morgan stated that it is the "gravamen of the claim which governs and not the form in which it is pleaded." 450 N.W.2d at 785. Morgan also...