Ford v. Moore, 19291

• Decision Date: 04 September 1996
• Docket Number: No. 19291,19291
• Citation: 552 N.W.2d 850,1996 SD 112
• Parties: Mary Ann FORD, Plaintiff and Appellant, v. Robert MOORE and Moore & Kandaras, Attorneys at Law, Defendants and Appellees.
• Court: South Dakota Supreme Court

Page 850

552 N.W.2d 850

1996 SD 112

Mary Ann FORD, Plaintiff and Appellant, v. Robert MOORE and Moore & Kandaras, Attorneys at Law Defendants and Appellees.

No. 19291.

Supreme Court of South Dakota.

Argued March 13, 1996.

Decided Sept. 4, 1996.

Rick Johnson of Johnson, Eklund, Nicholson & Dougherty, Gregory, for plaintiff and appellant.

Michael J. Schaeffer of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for defendants and appellees.

KONENKAMP, Justice.

¶1 Mary Ann Ford sued her former attorney claiming he negligently omitted filing her federal tort claim within the two-year statute of limitations, and alternatively, the lawsuit he brought in state court was defective. The circuit court granted summary judgment for the attorney. We reverse.

FACTS

¶2 On December 15, 1989, Ford was injured while a passenger in a vehicle driven by Molly Ann Lafferty, an employee of the Community Health Representative Program (CHRP) in Rapid City. Lafferty was driving Ford to a medical appointment under a health service contract between the United States of America, acting through the Indian Health Service (IHS), and the Rapid City Indian Health Advisory Board (Board). The contract required the Board to administer the CHRP for Native Americans, which included transporting individuals needing medical services.

¶3 Ford first hired another lawyer to pursue her claim, but after becoming dissatisfied, employed attorney Robert Moore to represent her on June 17, 1991. The next day Moore's legal assistant sent him a memo stating, "[u]nless I have read the statute completely wrong, Ms. Ford has two years to file a FTCA [Federal Tort Claims Act] claim, or six months after receiving final denial of administrative relief on her claim." A note at the bottom of the memo warned: "statute runs 12-15-91." Moore nonetheless concluded Ford had no FTCA case. Following unsuccessful settlement negotiations, Moore brought suit on Ford's behalf against Lafferty and the CHRP in Pennington County Circuit Court on December 14, 1992. Distressed with the progress of her case, Ford replaced Moore with a different attorney on January 8, 1993.

¶4 Lafferty and the CHRP moved for summary judgment contending the circuit court lacked subject matter jurisdiction. They argued the CHRP contract was authorized under the Indian Self-Determination and Education Assistance Act, 25 U.S.C. § 450 et seq (ISDEAA), and because the federal government waived its sovereign immunity in contracts under this Act, jurisdiction belonged exclusively in federal court under the FTCA. Ford did not resist the motion, and the court granted summary judgment in favor of the CHRP and Lafferty, holding the state court lacked subject matter jurisdiction. After the order was entered on April 11, 1994, Ford did not appeal. By then the two-year statute of limitations for bringing a claim under the FTCA had long expired.

¶5 Ford then retained her current attorney, who brought this legal malpractice action against Moore on September 26, 1994. Her complaint averred Moore was negligent in failing to file a federal tort claim within the two-year statutory period and alternatively, in bringing an invalid state action, due to insufficiency of process. Moore answered, denying negligence and asserting the underlying action was properly commenced in state court. He moved for summary judgment on the basis the CHRP contract was not a self-determination agreement, thus the matter was not cognizable as a federal tort claim. He maintained that had Ford resisted the initial motion for summary judgment or appealed the court's order, the underlying state action would not have been lost.

¶6 In granting summary judgment for Moore, the court determined the CHRP contract was not authorized under the ISDEAA, and therefore Ford never had a valid FTCA case. The court declined to consider whether the state action Moore brought was invalid for insufficiency of process. We concur on the latter issue and likewise decline to review the question, as Ford's state case was dismissed not for insufficiency of process, but for lack of subject matter jurisdiction (FTCA fixed jurisdiction in federal court). The defendants had evidently waived asserting the lack of personal jurisdiction defense. Williams Ins. of Pierre v. Bear Butte Farms Ptnp., 392 N.W.2d 831 (S.D.1986). This leaves for our review the question whether material issues of fact exist on Moore's purported negligence in not bringing a timely federal tort claim.

ANALYSIS

¶7 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). To prevail in a legal malpractice action, the plaintiff must prove:

1. an attorney-client relationship giving rise to a duty;

2. the attorney, either by an act or a failure to act, violated or breached that duty;

3. the attorney's breach of duty proximately caused injury to the client; and

4. the client sustained actual injury, loss or damage.

Keegan v. First Bank of Sioux Falls, 519 N.W.2d 607, 611 (S.D.1994).

¶8 The circuit court correctly reasoned that to assess Moore's alleged negligence, it had to decide whether a genuine FTCA case existed--if Ford had no valid federal tort claim, how could Moore be negligent in not filing it? The ISDEAA authorizes certain claims filed against Indian Tribes, organizations or contractors to be covered by the FTCA:

With respect to claims resulting from the performance of functions ... under a contract grant agreement, or any other agreement or compact agreement authorized by the Indian Self-Determination and Education Assistance Act, ... an Indian tribe, tribal organization or Indian contractor is deemed hereafter to be part of the Bureau of Indian Affairs in the Department of the Interior ... while carrying out any such contract or agreement and its employees are deemed to be employees of the Bureau ... while acting within the scope of their employment in carrying out the contract or agreement: Provided, That after September 30, 1990, any civil action or proceeding involving such claims brought hereafter against any tribe, tribal organization, Indian contractor or tribal employee covered by this provision shall be deemed to be an action against the United States and will be defended by the Attorney General and afforded the full protection and coverage of the Federal Tort Claims Act....

Pub.L. No. 101-512, Title III, § 314, 104 Stat. 1959 (codified at 25 U.S.C. § 450f notes). In Comes Flying v. U.S. Through Bureau of Indian Affairs, 830 F.Supp. 529, 530 (D.S.D.1993), the court summarized the limits of this provision:

In short, the law allows persons to recover from the United States for losses arising out of the actions of employees who are working under contracts authorized by the Self-Determination Act. Thus, the controlling question for purposes of the current motion is whether the employees whose alleged misfeasance caused plaintiffs' injuries were working under a self-determination contract.

Id. (footnote omitted). Likewise, the pivotal issue here is whether Lafferty, while acting within the scope of her employment, was serving under a self-determination contract at the time of the automobile accident.

¶9 A self-determination contract is an agreement "entered into [in part A of the ISDEAA] between a tribal organization and the appropriate Secretary for the planning, conduct and administration of programs or services which are otherwise provided to Indian tribes and their members pursuant to Federal law...." 25 U.S.C. § 450b(j)(1995). This Act provides in part:

The Secretary is directed, upon the request of any Indian tribe by tribal resolution, to enter into a self-determination contract or contracts with a tribal organization to plan, conduct, and administer programs or portions thereof....

25 U.S.C. § 450f(a)(1)(1995)(emphasis added). The law mandates that a tribal organization must obtain a tribal resolution before entering into a self-determination contract:

If so authorized by an Indian tribe under paragraph (1) of this subsection, a tribal organization may submit a proposal for a self-determination contract ... to the Secretary for review.

25 U.S.C. § 450f(a)(2)(1995). Federal regulations reiterate the tribal resolution requirement:

Before the Bureau can enter into a contract with a tribal organization, it must be requested to do so by the tribe to be served under the contract. The tribe's request shall be in the form of a resolution by the tribal governing body. If the tribal organization is applying for a contract to perform services benefiting more than one tribe, an authorizing resolution from each tribal governing body must be obtained before submitting the application to the Bureau for approval.

25 C.F.R. § 271.18(a)(1995). A "tribal organization" is

[T]he recognized governing body of any Indian tribe; any legally established organization of Indians which is controlled, sanctioned, or chartered by such governing body or which is democratically elected by the adult members of the Indian community to be served by such organization and which includes the maximum participation of Indians in all phases of its activities: Provided, That in any case where a contract is let or grant made to an...