Robinson-Podoll v. Harmelink, Fox & Ravnsborg Law Office

• Decision Date: 29 January 2020
• Docket Number: #28429
• Citation: 939 N.W.2d 32
• Court: South Dakota Supreme Court
• Parties: Jill ROBINSON-PODOLL f/k/a Jill Robinson-Kuchta, Plaintiff and Appellant, v. HARMELINK, FOX & RAVNSBORG LAW OFFICE and Wanda L. Howey-Fox, Defendants, Third-Party Plaintiffs and Appellees. v. Yankton County, South Dakota, Third-Party Defendant and Appellee.

939 N.W.2d 32

Jill ROBINSON-PODOLL f/k/a Jill Robinson-Kuchta, Plaintiff and Appellant,

v.HARMELINK, FOX & RAVNSBORG LAW OFFICE and Wanda L. Howey-Fox, Defendants, Third-Party Plaintiffs and Appellees.

v.Yankton County, South Dakota, Third-Party Defendant and Appellee.

#28429

Supreme Court of South Dakota.

ARGUED FEBRUARY 19, 2019

OPINION FILED January 29, 2020

CASEY W. FIDELER of Christopherson, Anderson, Paulson & Fideler, LLP, Sioux Falls, South Dakota, ROBERT J. ROHL of Johnson Eiesland Law Offices, P.C., Rapid City, South Dakota, Attorneys for plaintiff and appellant.

WILLIAM P. FULLER, MOLLY K. BECK of Fuller & Williamson, LLP, Sioux Falls, South Dakota, Attorneys for defendants, third-party plaintiffs and appellees.

DOUGLAS M. DEIBERT of Cadwell, Sanford, Deibert & Garry, LLP, Sioux Falls, South Dakota, Attorneys for third-party defendant and appellee.

JENSEN, Justice

[¶1.] Jill Robinson-Podoll brought this legal malpractice action against Attorney Wanda L. Howey-Fox and Harmelink, Fox & Ravnsborg Law Office (Law Firm) arising from Howey-Fox’s representation of Robinson-Podoll on a claim for personal injuries from an automobile accident. The circuit court granted summary judgment in favor of Howey-Fox, determining the legal malpractice action was time barred by SDCL 15-2-14.2. Robinson-Podoll appeals, arguing the circuit court erred in dismissing the action. She also argues the circuit court abused its discretion by allowing Howey-Fox to amend her answer to add SDCL 15-2-14.2 as an affirmative defense. We affirm in part, reverse in part, and remand.

Facts and Procedural History

[¶2.] Robinson-Podoll was involved in a three-vehicle automobile accident with Michelle Mitchell and Chelsey Ewalt on April 28, 2007. Robinson-Podoll retained Howey-Fox and the Law Firm in February 2009 to represent her on a claim for personal injuries arising from the accident.

[¶3.] Howey-Fox prepared a summons and complaint naming Mitchell and Ewalt as defendants. On April 23, 2010, Howey-Fox attempted to commence the action by forwarding the summons and complaint to the Yankton County Sheriff (Sheriff) for service upon Mitchell and Ewalt. This was just six days before the statute of limitations was to expire on Robinson-Podoll’s claim. The Sheriff served Mitchell on April 24, 2010 but was unable to locate Ewalt for service in Yankton County. The Sheriff subsequently delivered the summons and complaint to the Codington County Sheriff for service on Ewalt after the limitations period had expired. Ewalt was served in Codington County on May 25, 2010.

[¶4.] On May 12, 2010, an attorney representing Safeco Insurance on a subrogation claim related to the accident sent Howey-Fox an email stating, "[The Yankton County deputy] returned my papers unserved today, stating that the defendant now lives in [Codington County]. The statute expired on April 28. Do we have a problem?[ ] What’s the status of your case?" The attorney sent Howey-Fox another email on August 9, 2010, which stated:

I just got done speaking to [Ewalt’s attorney]. He seems pretty confident that both your case for personal injury and my case for subrogation were served beyond the statute of limitations. We appear to be on the same side on this one. Where do things stand on your case?

Howey-Fox responded, "I think he is wrong. [Papers were] filed and placed in the hands of the [Sheriff] before the [statute of limitations] ran. Further, it was served well within the extension created by [ SDCL 15-2-31 ]."¹

[¶5.] Ewalt moved for summary judgment on Robinson-Podoll’s personal injury action alleging the claim against Ewalt was time barred by the applicable statute of limitations. The circuit court agreed and dismissed Ewalt on February 17, 2011. This Court granted discretionary review of Ewalt’s dismissal and issued an opinion on January 4, 2012, determining that Ewalt was not served within three-year limitation period. See Robinson v. Ewalt , 2012 S.D. 1, 808 N.W.2d 123. However, the Court reversed the dismissal concluding the applicability of the sixty-day extension in SDCL 15-2-31 was dependent on resolving questions of fact as to whether Ewalt resided in Yankton County at the time of service. Robinson , 2012 S.D. 1, ¶ 15, 808 N.W.2d at 127.

[¶6.] A jury trial was held on February 11, 2013, solely on the question of Ewalt’s place of residence at the time of service. The jury returned a verdict finding that Ewalt resided in Codington County at the time of service. Based upon this finding, Ewalt again moved for summary judgment on the statute of limitations, arguing that the summons and complaint had not been delivered to the Codington County Sheriff before the limitations period expired. The circuit court granted Ewalt’s motion, entering a judgment of dismissal on April 5, 2013. Robinson-Podoll’s personal injury action against Mitchell remained pending. Howey-Fox continued as counsel of record until early 2015, when Howey-Fox moved to withdraw from representing Robinson-Podoll. The court entered an order granting the motion to withdraw on February 12, 2015. Robinson-Podoll’s and Mitchell’s counsel stipulated to a dismissal of Mitchell, with prejudice, on April 14, 2015.

[¶7.] Robinson-Podoll commenced this legal malpractice action against Howey-Fox and the Law Firm on January 15, 2016. The complaint alleged that Howey-Fox continually represented Robinson-Podoll on the personal injury action until 2015 and breached multiple professional duties owed to Robinson-Podoll. Howey-Fox and the Law Firm answered and filed a third-party complaint against Yankton County for indemnity and contribution, alleging the Sheriff was negligent in handling the service of the personal injury action on Ewalt.

[¶8.] On June 30, 2017, Howey-Fox moved for leave to amend her answer. The proposed amendment sought to add an additional affirmative defense, alleging that Robinson-Podoll’s legal malpractice claim was barred by the three-year statute of repose in SDCL 15-2-14.2. Howey-Fox’s motion to amend relied upon this Court’s decision in Pitt-Hart v. Sanford USD Medical Center , 2016 S.D. 33, 878 N.W.2d 406, and noted the decision was handed down after Howey-Fox filed her answer. On the same date, Robinson-Podoll also moved to amend her complaint to allege an additional claim against Howey-Fox. Robinson-Podoll alleged that Howey-Fox loaned $3,800 to Robinson-Podoll, during the attorney-client relationship, and took Robinson-Podoll’s anniversary ring as collateral. Robinson-Podoll claimed the value of the ring exceeded the amount of the loan and the ring was never returned. The circuit court granted both motions to amend.

[¶9.] On August 28, 2017, Howey-Fox moved for summary judgment relying on the statute of repose defense. Yankton County joined in the motion. The circuit court granted both motions concluding that SDCL 15-2-14.2 was a three-year statute of repose that barred Robinson-Podoll’s claims against Howey-Fox. A judgment was entered dismissing Howey-Fox and Yankton County.

[¶10.] Robinson-Podoll appeals raising several issues. We consolidate and address her issues as follows:

1. Whether the circuit court abused its discretion by permitting Howey-Fox to amend her answer to allege SDCL 15-2-14.2 as an affirmative defense.

2. Whether the circuit court erred in determining that Robinson-Podoll’s claims were untimely under SDCL 15-2-14.2.

Standard of Review

[¶11.] Motions to amend pleadings are reviewed for clear abuse of discretion. McDowell v. Citicorp Inc. , 2008 S.D. 50, ¶ 7, 752 N.W.2d 209, 212. "An abuse of discretion occurs when discretion [is] exercised to an end or purpose not justified by, and clearly against, reason and evidence." Id.

[¶12.] "Questions of statutory interpretation and application are reviewed under the de novo standard of review with no deference to the circuit court’s decision." McKie Ford Lincoln, Inc. v. Hanna , 2018 S.D. 14, ¶ 10, 907 N.W.2d 795, 798. "We discern legislative intent primarily using the language of the statute, giving the Legislature’s words plain meaning and effect within the context they are used." Coester v. Waubay Township , 2018 S.D. 24, ¶ 7, 909 N.W.2d 709, 711. If the language of the statute is clear, certain, and unambiguous, the meaning is plainly expressed and we apply the words as written. Perdue, Inc. v. Rounds , 2010 S.D. 38, ¶ 9 n.2, 782 N.W.2d 375, 378 n.2.

[¶13.] A circuit court’s entry of summary judgment is reviewed de novo. Wyman v. Bruckner , 2018 S.D. 17, ¶ 9, 908 N.W.2d 170, 174.

Summary judgment is proper where, 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. We will affirm only when no genuine issues of material fact exist and the law was applied correctly. We make all reasonable inferences drawn from the facts in the light most favorable to the non-moving party. In addition, the moving party has the burden of clearly demonstrating an absence of any genuine issue of material fact and an entitlement to judgment as a matter of law.

Garrido v. Team Auto Sales, Inc. , 2018 S.D. 41, ¶ 15, 913 N.W.2d 95, 100 (quotations omitted).

Analysis and Decision

1. Whether the circuit court abused its discretion by permitting Howey-Fox to amend her answer to include SDCL 15-2-14.2 as an affirmative defense.

[¶14.] Generally "a party may amend his pleading only by leave of the court or by written consent of the adverse party; and leave shall be freely given when justice so requires." SDCL 15-6-15(a). "[T]he most important consideration in determining whether a party should be allowed to amend a pleading is whether the nonmoving party will be prejudiced by the amendment." Hein v. Zoss , 2016 S.D. 73, ¶ 24, 887 N.W.2d 62, 69-70 (quoting Burhenn v. Dennis Supply Co. , 2004 S.D. 91, ¶ 20, 685 N.W.2d 778, 783 ). "Prejudice is often shown when a party is surprised and...