Slota v. Imhoff

#28496-a-SRJ

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                    …

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.

                                    …

                  APPEAL FROM THE CIRCUIT COURT OF
                     THE SECOND JUDICIAL CIRCUIT
                  MINNEHAHA COUNTY, SOUTH DAKOTA

                                    …

                   THE HONORABLE RODNEY J. STEELE
                            Retired Judge

                                    …

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.

                                    …

                                             ARGUED
                                             OCTOBER 2, 2019
                                             OPINION FILED 09/30/20
#28496

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



1.      During the appeal the parties stipulated to a dismissal of the claims against
        de Castro, and he is no longer a party in this action.

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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




2.         Slota was only sentenced on the first-degree rape conviction.

3.         The sole issue raised on direct appeal to this Court was whether the circuit
           court erred in closing the courtroom during the child victim’s testimony.
           State v. Slota, 

, ¶ 8, 

.


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[¶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


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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


4.       SDCL 15-2-14.2 provides:

               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.


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#28496

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, 

, ¶ 3, 

.

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., 

, ¶ 6,

. “Judgment on the pleadings provides an expeditious remedy

to test the legal sufficiency, substance, and form of the pleadings.” Loesch, 

, ¶ 3, 

. “It is only an appropriate remedy to resolve issues

of law when there are no disputed facts.” 

[¶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. 

, 

, 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-


                                          -5-
#28496

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. 

 (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


5.       SDCL 15-2-14.1 to -14.8 contain nearly identical occurrence-based language
         that establish various time periods to commence an action for malpractice
         against certain licensed professionals.

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#28496

pleaded.” 

. Morgan also cited the general rule that “if there is

any doubt as to which [statute of limitations] applies, such doubt [should] be

resolved in favor of the longer limitation period.” 

. Morgan then applied

the longer six-year contract statute of limitations explaining, “the determination to

apply the contract limitation . . . is based solely upon the dominant or pervading

cause of action (contract) which is inextricably intertwined with the attorney

malpractice claim.” 

. The Court found that the attorney’s duty to the

plaintiffs arose mainly from the business relationship between the parties, rather

than an attorney-client relationship, reasoning that the partnership agreement

created contractual duties as a business partner that included providing legal

services. 

.

[¶17.]       In Bruske v. Hille, a former patient sued her oral surgeon for fraud and

deceit, claiming the surgeon failed to warn her of a defective implant he had placed

in her jaw for treatment of TMJ. 

, 

. The surgeon

moved to dismiss the action under the two-year medical malpractice statute in

SDCL 15-2-14.1, while the patient argued that the six-year fraud statute applied to

the cause of action. The patient alleged that the surgeon’s “duty lies not merely in

the physician-patient relationship, but upon SDCL 20-10-2(3) (suppression of a fact

by one who is bound to disclose it . . . .).” Id. ¶ 12, 

. We disagreed

and stated that “when closely examined, her claims sound in negligence. [The

patient’s] expert medical witness . . . testified throughout his deposition that [the

surgeon] breached the standard of care by not notifying her of the danger of the []

implant.” 

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#28496

[¶18.]       Bruske held that “malpractice characterized as fraud and deceit will

not sanction a shift to a more beneficial statute of limitations.” Id. ¶ 13. Bruske

cited cases from other jurisdictions providing that “any professional misconduct or

any unreasonable lack of skill or fidelity in the performance of professional or

fiduciary duties is malpractice and comes within the professional or malpractice

statute of limitations.” Id. “Misrepresentations . . . whether negligently,

deliberately, or fraudulently made, come within the legal purview of malpractice.”

Id. “A plaintiff may not evade the appropriate limitations period by artful drafting.”

Id.

[¶19.]       Subsequently, this Court decided Masloskie v. Century 21 Am. Real

Estate, Inc., where we again expressed the general rule that when there is doubt as

to which statute of limitations applies, doubt should be resolved in favor of the

longer limitations period. 

, 

. In Masloskie,

the plaintiffs purchased a rural lot in the Black Hills to construct a home. The

plaintiffs alleged that prior to the purchase, their realtor had falsely represented

that he had spoken with the U.S. Forest Service and received permission for

plaintiffs to connect the electrical service for their home to a nearby Forest Service

electrical power pole. After purchasing the property, plaintiffs discovered the

realtor’s representations were untrue and incurred substantial expense to connect

to an alternative power source. They sued the realtor for fraud and deceit,

negligent misrepresentation, breach of fiduciary duty, and breach of contract. The

circuit court dismissed all of the claims concluding that they were beyond the three-




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#28496

year limitation period for malpractice actions involving realtors. Id. ¶ 5, 

. The Masloskies appealed the dismissal of their fraud claim.

[¶20.]         Distinguishing Bruske, Masloskie applied the longer six-year fraud

limitation period rather than the shorter three-year period for realtor malpractice

actions under SDCL 15-2-14.6. 6 Id. ¶ 14, 

. Masloskie declined to

follow the other authorities cited by Bruske for the proposition that all professional

misconduct springing from a professional relationship is malpractice and considered

Bruske’s discussion of this authority to be mere dicta. 7 Id. ¶ 10, 

.

The Court further stated:

               South Dakota also recognizes that the same transaction may
               give rise to two causes of action having different statutes of
               limitations. Therefore, liability may “co-exist” in different
               causes of action arising from one transaction. Ultimately, the
               nature of the cause of action or the right sued upon (and not the
               form of the action) determines what statute of limitations

6.       SDCL 15-2-14.6 provides:

               No action may be brought against a licensed real estate broker, broker
               associate, or salesperson, or any agent or employee thereof, for
               malpractice, error, mistake, or omission, whether based upon contract
               or tort, unless it is commenced within three years of the occurrence of
               the alleged malpractice, error, mistake, or omission.

7.       Masloskie cited prior cases where our Court has separately considered claims
         arising from the same transaction.

               See Rehm v. Lenz, 

, ¶ 16, 

 (separately
               considering allegations of malpractice and fraud in a
               psychologist/counselor-client relationship); Richards v. Lenz, 

 (S.D. 1995) (same); Morgan v. Baldwin, 

 (S.D. 1990) (separately considering the “allegations” to determine
               the “nature” of a complaint alleging both malpractice and breach of
               contract in an attorney-client relationship). See also Zoss v. Schaefers,
               

, ¶ 11, 

.

         Masloskie, 

, 

.

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             applies. When one of two statutes of limitations may be
             applicable, such application should always be tested by the
             nature of the allegations in the complaint, and if there is any
             doubt as to which statute applies, such doubt shall be resolved
             in favor of the longer limitation period.

Id. ¶ 12, 

.

[¶21.]       The above cases were decided before our decisions in Pitt-Hart v.

Sanford USD Medical Center and Robinson-Podoll, where we held that the

occurrence-based professional malpractice statutes in SDCL 15-2-14.1 (medical

malpractice) and SDCL 15-2-14.2 (legal malpractice) are statutes of repose, not

limitation periods. Pitt-Hart, 

, ¶ 18, 

; Robinson-

Podoll, 

, 

. A review of these earlier cases

demonstrates that they were premised on an analysis that the professional

malpractice time periods were statutes of limitations for particular types of actions,

rather than repose periods beyond which a party has a right not to be sued. Thus,

in Morgan, we recognized that the contract and legal malpractice claims were

“inextricably intertwined” and resolved doubt in favor of the “dominant or

pervading cause of action (contract).” 

. Because we found the

malpractice claims were “subsumed in the contract claim,” we allowed both types of

claims to proceed to trial under the longer limitations period. 

. Similarly,

in Masloskie, we held that “liability may ‘co-exist’ in different causes of action

arising from one transaction” and resolved doubt “in favor of the longer limitation

period.” 

, 

.

[¶22.]       However, our more recent determination that SDCL 15-2-14.2 is a

statute of repose forecloses an analysis that would allow us to resolve doubt in favor


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of a longer limitation period as we did in Morgan and Masloskie. This is because a

statute of repose is substantively different than a statute of limitation.

               Statutes of repose effect a legislative judgment that a defendant
               should be free from liability after the legislatively determined
               period of time. [They] are based on considerations of the
               economic best interests of the public as a whole and are
               substantive grants of immunity based on a legislative balance of
               the respective rights of potential plaintiffs and defendants
               struck by determining a time limit beyond which liability no
               longer exists.

Pitt-Hart, 

, ¶ 21, 

. “[A] statute of repose establishes

a right not to be sued, rather than a right to sue. Thus, with the expiration of the

period of repose, the putative cause of action evanesces; life cannot thereafter be

breathed back into it.” Clark Cty. v. Sioux Equip. Corp., 

, ¶ 27, 

.

[¶23.]         When this principle is applied to the text of SDCL 15-2-14.2, the

Legislature has extinguished any liability and damages that would have existed

against an attorney for “malpractice, error, mistake, or omission, whether based

upon contract or tort” three years after the date of the occurrence. 8 Life cannot be

breathed back into such a claim by repackaging it into a different theory of liability

that may provide a longer limitation period. While Bruske seemingly treated the

medical malpractice repose statute in SDCL 15-2-14.1 as a statute of limitations,

the Court properly recognized claims of fraud and deceit arising out of a patient-


8.       One of the necessary elements for legal malpractice is that a “client sustained
         actual injury, loss or damage.” Grand State Prop., Inc. v. Woods, Fuller,
         Shultz, & Smith, P.C., 

, ¶ 15, 

. “Proof of
         damages proximately caused by the attorney’s negligence is a fundamental
         element of both causes of action.” Id. ¶ 18.


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physician relationship; and the ensuing duty of care owed by a physician to a

patient must be viewed “within the context of medical malpractice” and the

plaintiff’s “purported fraud and deceit action expired under SDCL 15-2-14.1.” 

, ¶ 14, 

. Thus, to the extent that SDCL 15-2-14.2 is

applicable to a cause of action against an attorney arising out of the attorney-client

relationship and ensuing professional standards of care, we conclude that no other

rule can be applied to extend the time period set out by the Legislature in this

repose statute.

[¶24.]         Slota claims that SDCL 15-2-14.2 has no application to his claims for

fraud or the intentional failure to disclose facts because the claims arise out of the

fiduciary duties owed by Imhoff and Attorneys. Slota’s arguments may have some

support in the language of SDCL 15-2-14.2, which applies to claims against licensed

attorneys for “malpractice, error, mistake, or omission.” The statute does not define

these terms, nor does it specifically reference breaches of a fiduciary duty or other

intentional conduct outside the purview of “malpractice, error, mistake, or

omission.”

[¶25.]         A legal malpractice claim is premised on the duty of care existing in an

attorney-client relationship. 9 Peterson v. Issenhuth, 

, ¶ 17, 

. This duty requires that the attorney “exercise . . . the skill and knowledge

9.       To prevail in a legal malpractice claim, a plaintiff must prove: (1) the
         existence of an attorney-client relationship giving rise to a duty; (2) the
         attorney, either by an act or failure to act, breached that duty; (3) the
         attorney’s breach of duty proximately caused injury to the client; and (4) the
         client sustained actual damage.

         Peterson, 

, ¶ 17, 

.


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ordinarily possessed by an attorney.” Zhi Gang Zhang v. Rasmus, 

, 

. An attorney’s fiduciary duty likewise grows out of the

attorney-client relationship but involves a different duty than the standard of care

for legal malpractice. “A breach of fiduciary duty in the attorney-client relationship

arises from the representation of a client and involves the fundamental aspects of

an attorney-client relationship. The fiduciary obligations are twofold: (1)

confidentiality; and (2) undivided loyalty.” Behrens v. Wedmore, 

, ¶ 52,

.

[¶26.]       However, claims for legal malpractice, breach of fiduciary duty, and

other torts are often indistinguishable when applying the repose statute as the

claims typically involve the same type of conduct and damages.

             Breach of fiduciary duty in the lawyer-client setting is a species
             of legal malpractice, in that the claim is focused on lawyer
             misconduct in connection with representing a client. In most
             situations, the claim for legal malpractice and the claim for
             breach of fiduciary duty require virtually the same kinds of proof
             on causation and damages. To succeed on a fiduciary breach
             claim, the plaintiff must typically prove that the lawyer owed
             the plaintiff a fiduciary duty, breached it, and that the breach
             caused damages.

Dan B. Dobbs, Paul T. Hayden & Ellen M. Bublick, The Law of Torts § 724 (2d ed.

2011). Therefore, when the conduct giving rise to a claim for legal malpractice and

breach of fiduciary duty and the resulting damages are inseparable, SDCL 15-2-14.2

operates to eliminate the existence of any claim once the repose period has expired.

This is consistent with our statement in Pitt-Hart that the medical malpractice

repose statute is applicable to a claim when there “is a nexus between the injury




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suffered by the plaintiff and the health care he received from the hospital.” 

, ¶ 15, 

. 10

[¶27.]         Here, even if we assume that Dorvall and Evans’ statements to Slota

were false and made intentionally to deceive Slota, these statements fail to generate

a separate claim for fraud that has not been extinguished under the repose statute.

The statements all relate to and arise directly out of the professional legal services

provided by Evans and Dorvall before and during trial, and the professional

standards of care owed by Attorneys to Slota. As the circuit court correctly noted,

the fraud and deceit allegations “all come back to the effectiveness of the

representations [Slota] received.” Like Bruske, Slota has not alleged that Evans

and Dorvall engaged in fraudulent conduct toward him outside the professional

duty of care or the scope of the legal services provided to Slota during the course of

the representation.

[¶28.]         Further, the damages Slota claims for fraud and deceit are the same

losses he claims to have sustained because of the alleged malpractice. This Court

requires proof of “injury or damage” as an essential element of fraud. N. Am. Truck

& Trailer, Inc., 

, ¶ 10, 

. “[O]ne seeking to recover

damages for fraud in a law action must prove that he has suffered a loss directly

from, and as a clear and necessary consequence of, the fraud.” Schmidt v. Wildcat

Cave, Inc., 

 (S.D. 1977). Specifically, Slota claims damages for


10.      SDCL 15-2-14.2 may not apply to every claim by a client against an attorney
         that involves a breach of fiduciary duty, fraud, or other intentional conduct
         when such conduct causes harm unrelated to the malpractice. However, we
         need not explore the limits of SDCL 15-2-14.2 to resolve the case that is
         before us.

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losses he sustained because of the “incompetent legal services” resulting in his

wrongful conviction. Those alleged damages were caused by Attorneys’ malpractice

for which liability no longer exists under SDCL 15-2-14.2. After the repose period

expired, “life cannot thereafter be breathed back into” the malpractice claim. See

Clark Cty., 

, ¶ 27, 

. Slota has not alleged that he

sustained any other damages caused by the alleged fraud. Thus, Slota has no

independent cause of action for fraud that has not been extinguished by the repose

statute. 11

[¶29.]         Slota’s fraud and deceit claims against Imhoff differ only slightly from

his claims against Attorneys. Slota alleges that Imhoff knowingly misrepresented

or suppressed facts about the legal ability, experience, and expertise of the

attorneys who would be defending him. The complaint alleges that these

misrepresentations were made by Imhoff both on its website and verbally. It is

unclear whether Imhoff’s representations were made before or after an attorney-

client relationship began between Imhoff and Slota. 12 Nonetheless, like the fraud




11.      Slota alleges a claim for punitive damages. However, we have recognized
         that “[t]here is no independent cause of action for punitive damages.” O’Neill
         v. O’Neill, 

, ¶ 25, 

. Further, “We have
         consistently held that punitive damages are not allowed absent an award for
         compensatory damages.” Hoaas v. Griffiths, 

, 

.

12.      An attorney-client relationship begins “when: (1) a person seeks advice or
         assistance from an attorney; (2) the advice or assistance sought pertains to
         matters within the attorney’s professional competence; and (3) the attorney
         expressly or impliedly agrees to give or actually gives the desired advice or
         assistance.” Keegan v. First Bank of Sioux Falls, 

 (S.D.
         1994). “Whether an attorney-client relationship existed is ordinarily a
                                                               (continued . . .)
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and deceit claims against Evans and Dorvall, Slota’s fraud claims against Imhoff

cannot be untethered from the malpractice claims.

[¶30.]       To recover for fraud and deceit against Imhoff, Slota would need to

prove that he relied upon Imhoff’s false assurances that the firm would provide

experienced and competent counsel to represent him along with independent

experts to assist in his defense. Further, that as a result of Imhoff’s failure to

provide such representation, Slota was wrongfully convicted and incurred damages.

See SDCL 20-10-1, -2. See also Stabler v. First State Bank of Roscoe, 

, ¶

19, 

 (To recover for fraud or deceit, a party must prove that he

“did in fact rely on [an intentionally false statement or suggestion of fact] and was

induced thereby to act to his injury or damage.”). Even if Imhoff intentionally

misrepresented or omitted facts about the quality of the representation that would

be provided, Slota cannot separately prove a claim for fraud against Imhoff without

relying on the evidence necessary to support both the liability and damages claimed

for legal malpractice. Because Slota’s fraud claim is subsumed within his

malpractice claim, both are precluded under the repose statute.

[¶31.]       We affirm the circuit court’s order.

[¶32.]       GILBERTSON, Chief Justice, and KERN, SALTER, and DEVANEY,

Justices, concur.




________________________
(. . . continued)
         question of fact.” Chem-Age Indus., Inc. v. Glover, 

, ¶ 24, 

.


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