Peterson v. Hohm, No. 20975.

• Court: Supreme Court of South Dakota
• Writing for the Court: AMUNDSON, Justice.
• Citation: 2000 SD 27,607 N.W.2d 8
• Parties: Ruby PETERSON, Individually and as the Special Administratrix of the Estate of Edward L. Peterson, Deceased, Plaintiff and Appellant, v. Robert C. HOHM, M.D.; Paul Hohm, M.D.; Tschetter & Hohm Clinic, P.C.; and Knute Landreth, M.D., Defendants and Appellees.
• Docket Number: No. 20975.
• Decision Date: 23 February 2000

607 N.W.2d 8
2000 SD 27

Ruby PETERSON, Individually and as the Special Administratrix of the Estate of Edward L. Peterson, Deceased, Plaintiff and Appellant,
v.
Robert C. HOHM, M.D.; Paul Hohm, M.D.; Tschetter & Hohm Clinic, P.C.; and Knute Landreth, M.D., Defendants and Appellees

No. 20975.

Supreme Court of South Dakota.

Considered on Briefs November 29, 1999.

Decided February 23, 2000.

607 N.W.2d 9

Glen H. Johnson and Kristi K. Wammen of Johnson, Eiesland, Huffman & Clayborne, Rapid City, South Dakota, Attorneys for plaintiff and appellant

Kathryn J. Hoskins of Siegel, Barnett & Schutz, Sioux Falls, South Dakota, Attorneys for defendants and appellees Hohms and Clinic.

Edwin E. Evans and Lori Purcell Fossen of Davenport, Evans, Hurwitz & Smith, Sioux Falls, South Dakota, Attorneys for defendant and appellee Landreth.

AMUNDSON, Justice.

[¶ 1.] Ruby Peterson (Ruby) appeals the circuit court's granting of summary judgment in favor of Robert C. Hohm, Paul Hohm, Tschetter & Hohm Clinic, and Knute Landreth (Doctors). We affirm.

FACTS

[¶ 2.] On March 22, 1995, Edward Peterson (Edward), who was sixty years old, went to the Tschetter and Hohm Clinic in Huron, South Dakota, complaining of headaches, nausea, vomiting and neck stiffness. He received a CT Scan of his head, was treated by Doctors at the clinic and released. On April 3, 1995, Edward suffered an undiagnosed cerebral hemorrhage that caused him to collapse. He died six days later.

[¶ 3.] At the time of Edward's death, he and Ruby were residents of Beadle County, South Dakota. Shortly after Edward's death, Ruby moved to Fairmont, Minnesota. On March 10, 1997, the Honorable Eugene Martin, Third Circuit, Beadle County, granted Ruby's petition for appointment as special administratrix of Edward's estate. On March 21, 1997, Ruby filed a medical malpractice action on behalf of her husband's estate against Doctors in the United States District Court for South Dakota based upon diversity of citizenship. In her complaint, Ruby alleged that Doctors were negligent in their failure to diagnose and treat Edward for his cerebral aneurysm. Doctor Knute Landreth (Landreth) asserted in his separate answer that no jurisdiction existed. After Doctors filed their answer, the parties undertook discovery, which included: depositions of the parties, exchange of interrogatories and production requests, and identification and disclosure of expert witnesses.

607 N.W.2d 10

[¶ 4.] Over one year after Doctors filed their answer, they moved to dismiss the action for lack of subject matter jurisdiction. Doctors argued that in determining diversity of citizenship under 28 U.S.C. § 1332(c)(2), the citizenship of the legal representative of the estate of a decedent is deemed to be the same as the decedent at the time of death.¹ While Doctors' motion to dismiss was pending, Ruby filed a state court action on June 23, 1998, in Beadle County, South Dakota, alleging issues identical to the federal action. On September 17, 1998, the federal court found that the decedent and Doctors were all residents of South Dakota; therefore, no diversity of citizenship existed and the suit was dismissed for lack of subject matter jurisdiction

[¶ 5.] Subsequently, Doctors filed a motion for summary judgment in the state court action on the grounds that the statutes of limitations had run. Doctors argued that under SDCL 15-2-14.1 the statute of limitations for medical malpractice is two years from the alleged malpractice. In addition, the statute of limitations under SDCL 21-5-3 for a wrongful death action is three years. The circuit court noted that Ruby filed the state court action 440 days after the expiration of the statute of limitations for a medical malpractice claim, and 75 days after the expiration of the statute of limitations for a wrongful death action. The trial court found that both statutes of limitations had expired and granted Doctors' summary judgment motion.

[¶ 6.] Ruby appeals, raising the following issue:

Whether the trial court erred in holding that the state statute of limitations was not tolled or deemed satisfied during the pendency of Ruby's federal court action against Doctors.

STANDARD OF REVIEW

[¶ 7.] Our standard of review of a trial court's granting of summary judgment is well established. We have often stated:

"In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper."

Wissink v. Van De Stroet, 1999 SD 92, ¶ 9, 598 N.W.2d 213, 215 (quoting Millard v. City of Sioux Falls, 1999 SD 18, ¶ 8, 589 N.W.2d 217, 218 (quoting Walther v. KPKA Meadowlands Ltd. Partnership, 1998 SD 78, ¶ 14, 581 N.W.2d 527, 531 (citation omitted))). When faced with "`a summary judgment motion where the defendant asserts the statute of limitations as a bar to the action and presumptively establishes the defense by showing the case was brought beyond the statutory period, the burden shifts to the plaintiff to establish the existence of material facts in avoidance of the statute of limitations[.]'" Id. (quoting Strassburg v. Citizens State Bank, 1998 SD 72, ¶ 5, 581 N.W.2d 510, 513 (citations omitted)) (alterations in original). It is well settled that "`[s]ummary judgment is proper on statute of limitations issues only when application of the law is in question, and not when there are remaining issues of material fact.'" Id. (quoting Greene v. Morgan, Theeler, Cogley

607 N.W.2d 11

& Petersen, 1998 SD 16, ¶ 6, 575 N.W.2d 457, 459 (citing Kurylas, Inc. v. Bradsky, 452 N.W.2d 111, 113 (S.D.1990)))

[¶ 8.] Generally, a statute of limitations question is left for the jury; however, "`[d]eciding what constitutes accrual of a cause of action'" is a question of law and reviewed de novo. Id. (quoting Strassburg, 1998 SD 72, ¶ 7, 581 N.W.2d at 513 (citing Bosse v. Quam, 537 N.W.2d 8, 10 (S.D.1995) (citation omitted))) (alteration in original). In reviewing under this standard, "[w]e give no deference to the trial court's conclusions of law." Stratmeyer v. Stratmeyer, 1997 SD 97, ¶ 11, 567 N.W.2d 220, 222 (citing City of Colton v. Schwebach, 1997 SD 4, ¶ 8, 557 N.W.2d 769, 771).

DECISION

[¶ 9.] Whether the trial court erred in holding that the state statute of limitations was not tolled or deemed satisfied during the pendency of Ruby's federal court action against Doctors.

[¶ 10.] It is undisputed that SDCL 15-2-14.1 and SDCL 21-5-3 apply. Under SDCL 15-2-14.1,

[a]n action

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