S.D. SC: Woman should've known her lawsuit wasn't filed

By Jessica M. Karmasek | Sep 17, 2010


PIERRE, S.D. (Legal Newsline) - The South Dakota Supreme Court has affirmed the ruling of a circuit court, denying a woman's motion to extend the statute of limitations in a personal injury case despite her lawyer's disbarment.

In December 2004, Eleshia Zahrbock, Peyton Gerry, Justin Zahrbock and Jonette Anson were guests at the Star Brite Inn, a Yankton-area motel. The four guests were allegedly overcome by carbon monoxide that leaked into their rooms and suffered varying injuries.

Within a few weeks of the alleged incident, Anson was contacted by the Zahrbocks and Gerry about hiring an attorney to represent them in a suit against Star Brite. In February 2005, at the Zahrbocks' suggestion, Anson and the couple met with Sioux Falls attorney Chad Swenson.

Before leaving Swenson's office, Anson signed a retainer agreement with the attorney. He told Anson he would be in touch after he filed the suit.

A few weeks after the initial meeting with Swenson, Anson received an unsigned copy of a draft of a complaint that included Zahrbocks, Gerry and Anson as plaintiffs. Anson believed that Swenson had filed the complaint and that the lawsuit had been commenced based on her receipt of the unsigned copy of the complaint.

Soon after, Anson started having trouble getting Swenson to return her phone calls.

It wasn't until April or May 2005 that Swenson spoke briefly with Anson over the telephone and told her the case was progressing as planned and that he was in negotiations with defense counsel. At that time, Swenson also advised Anson to continue with her medical care.

Anson was unable to speak with Swenson again until the fall, when she met him at his office. Swenson told Anson during the brief meeting that the case, again, was progressing as planned and not to be concerned. This was the last time Anson was able to speak personally with Swenson.

Anson continued to call her attorney's office for updates. She left messages with his office secretary through the fall of 2006. After that, she was able to reach only an answering machine.

That fall she tried dropping by his office, but found the door locked. She continued to call and leave messages over the course of the next 11 to 12 months. Then, in August 2007, Anson discovered Swenson's number was disconnected. She tried calling all the Chad Swensons listed in the phone book, but failed to reach him.

After a three-month trip to Colorado for work purposes, Anson returned and soon after -- in January 2008 -- received a letter from Nichole Carper in the capacity as counsel for the Zahrbocks in their suit against Star Brite. In the letter, Carper informed Anson that Swenson had been disbarred and failed to notify his clients. Anson immediately retained Carper to represent her in the matter.

However, the three-year statute of limitations had expired on Anson's claim as of Dec. 23, 2007.

Anson also learned from Carper that Swenson had never filed a lawsuit as Anson had believed he had.

In May 2008, Anson moved to file an amended complaint. Star Brite resisted, arguing the statute of limitations had expired.

Carper filed an amended complaint in December 2008 in an attempt to include Anson as a plaintiff, along with the Zahrbocks, in a claim filed Dec. 11, 2007. Carper argued the doctrine of equitable tolling should apply to allow the complaint. Star Brite filed a motion to dismiss the claim as untimely.

After a hearing on the matter, the circuit court issued a memorandum decision. It found that there were extraordinary circumstances that triggered the doctrine of equitable tolling. However, it also found that Anson did not exhibit reasonable and good-faith conduct sufficient to apply the doctrine.

The circuit court entered an order dismissing Anson's claim as barred by the statute of limitations.

Anson's appeal questions whether the court erred when it found she did not exhibit reasonable and good-faith conduct sufficient to apply the doctrine.

Chief Justice David Gilbertson, who authored the Court's opinion filed Sept. 8, wrote, "We agree that Anson should have begun to suspect something was amiss with Swenson's practice, but not necessarily that he was no longer in practice. However, Anson should have at least suspected that her case was not in the hands of a competent attorney or one who was giving her case the attention it required as no new information was ever shared with Anson other than Swenson's 2005 claims that he was in negotiations with opposing counsel.

He continued, "Swenson's inability to return calls, acknowledge the medical bills Anson sent him over the course of the representation, or provide documentation about the negotiations allegedly being pursued should have raised serious doubts about Swenson and caused Anson to make further inquiries with the State Bar or the court listed at the top of the draft complaint she received in March 2005."

Gilbertson wrote that Anson should have realized her case had been abandoned by Swenson and was at risk as a consequence and taken immediate action instead of taking no action at all.

"Instead of taking immediate action by either calling the State Bar, the Zahrbocks, or using a Sioux Falls telephone directory or the Internet to locate another attorney from her work site in Colorado, Anson made the conscious decision to do nothing until she returned," the Court said in its opinion.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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