text:
    2003 SD 54
    Richard H. CLEVELAND and Carolyn Cleveland, Larry Anderson and Carol Anderson, Bob Tridle and John Tridle, Jim Mattson, Roberta Raines, Dan Regan and Trudy Regan, Michael Donner and Darlene Donner, William Boyer and Roxanne Boyer, Ed Odson and Ellen Odson, Don Sanders and Patricia Sanders, Debra Bieber, Roberta Olson, Brian Nelson and Melody Nelson, Ramona Hickens, Suntina Marta, and Lorraine Wiswell, Dale Larson and Renee Larson, Brian Meade, Norman Hertel and Mary Lou Hertel, Thomas Morey and Donna Morey, Gina Crain, Glen Bauernfeind, Ronald Manseau, O.A. Henderson, Jr., and Sara Jane Henderson, individually and on behalf of Mile High Apartments, a partnership, Plaintiffs, v. City of Lead, a municipal corporation, Defendant, BDL ENTERPRISES, INC., Defendant and Appellant, FMG, Inc., Defendant and Appellee. Richard H. Cleveland and Carolyn Cleveland, Larry Anderson and Carol Anderson, Bob Tridle and John Tridle, Jim Mattson, Roberta Raines, Dan Regan and Trudy Regan, Michael Donner and Darlene Donner, William Boyer and Roxanne Boyer, Ed Odson and Ellen Odson, Don Sanders and Patricia Sanders, Debra Bieber, Roberta Olson, Brian Nelson and Melody Nelson, Ramona Hickens, Suntina Marta, and Lorraine Wiswell, Dale Larson and Renee Larson, Brian Meade, Norman Hertel and Mary Lou Hertel, Thomas Morey and Donna Morey, Gina Crain, Glen Bauernfeind, Ronald Manseau, O.A. Henderson, Jr., and Sara Jane Henderson, individually and on behalf of Mile High Apartments, a partnership, Plaintiffs and Appellants, v. City of Lead, a municipal corporation, Defendant, BDL Enterprises, Inc., Defendant, and FMG, Inc., Defendant and Appellee.
    Nos. 22409, 22467.
    Supreme Court of South Dakota.
    Considered on Briefs March 24, 2003.
    Decided May 14, 2003.

      Kenneth E. Barker, Michael P. Reynolds, John W. Burke of Barker, Wilson, Reynolds & Burke, Belle Fourche, for plaintiffs and appellants.
    Jerry D. Johnson of Banks, Johnson, Colbath & Kerr, Rapid City, for defendant and appellant BDL.
    Gary D. Jensen of Beardsley, Jensen and Von Wald, Prof. LLC, Rapid City, for defendant and appellee FMG.
   GILBERTSON, Chief Justice.

[¶ 1.] This dispute arises over the construction of the Twin City Mall in Lead, South Dakota. In constructing the Mall, BDL, the owner of the Mall, removed part of a slope of a hill, which provided lateral support to the Homeowners’ property. The Homeowners brought suit against BDL and FMG, the soil engineers, alleging that removal of the slope caused ground movement, which in turn caused damage to their property. BDL filed a cross-claim against FMG for indemnity or contribution. The trial court granted summary judgment to FMG on both the Homeowners’ claims and BDL’s cross-claim. We affirm.

FACTS AND PROCEDURE

[¶ 2.] In 1985, BDL began making plans for the construction of the Twin City Mall in Lead, South Dakota. The chosen site of the mall was located at the bottom of a steep slope. Behind the mall, resting on the hillside, is the Bender Park Neighborhood, which consists of First, Second and Third Streets. The construction of the mall entailed cutting into the slope. Therefore, BDL hired FMG to perform a geotechnical exploration of the proposed site to determine whether it was safe to proceed.

[¶ 3.] In a report to BDL, FMG opined that “the configuration’s stability is marginal, although theoretically safe from mass failure.” Soon after, construction of the Mall began and was substantially completed by May 1,1987. As early as the fall of 1986, a Bender Park resident noticed a crack on the ground of Third Street. Thereafter, many other problems were reported in the Bender Park Neighborhood, such as large cracks in foundation walls and movement of homes. There were also sewer and water main breaks in the area.

[¶ 4.] The Third Street Committee was then formed by the city. This Committee was organized to address concerns and monitor the situation. The City of Lead, BDL, and the homeowners had representatives on the Committee. At the meeting held on July 23, 1987, a representative from FMG, Rick Baker, was present to answer questions concerning the cause of the ground movement. Baker stated that “it was his opinion that the cut on the hillside below First Street was not the cause of the movement in the area.”

[¶ 5.] The Committee publicly met four times and several homeowners remained convinced that the construction of the Mall caused the ground movement. However, after the city’s monitoring of the movement through September of 1990 revealed nothing significant, the monitoring was discontinued.

[¶ 6.] The winter of 1993 and spring of 1994 brought with them a huge amount of rainfall and snow. Due to the extreme amount of melting and moisture, drainage increased and the hill began to move. The Mall also showed a significant amount of movement. BDL retained GME Consultants of Minneapolis to investigate the cause of the slope instability and the movement of the Mall.

[¶ 7.] GME advised that the Mall be evacuated and that remedial measures be put in place. The remedial measures included digging long and deep trenches along the Mall’s parking lot, which was below First Street and up on Third Street. The trenches were completed in 1996 at a cost of nearly $4,000,000. It is disputed by the parties whether movement continues.

[¶ 8.] Thereafter, in 1998, thirty-three homeowners in the Bender Park Neighborhood filed suit against BDL and FMG. The Plaintiffs asserted six counts of wrongdoing by BDL and FMG for their part in the development, design, and construction of the Twin City Mall. Essentially, the Plaintiffs allege that BDL and FMG failed to design, engineer, and construct the Mall in such a way that would have prevented removal of the slope of the hill. They allege that this hill provided lateral support for their real property located on the hillside behind the Mall. Defendant BDL filed a cross-claim against Defendant FMG seeking indemnity or contribution. After four years of discovery, BDL and FMG moved for summary judgment.

[¶ 9.] After hearing oral arguments on the motion, the trial court denied summary judgment to BDL but granted summary judgment to FMG on Homeowners’ claims and Defendant BDL’s cross-claims. The trial court found that Homeowners’ claims against FMG were barred under the ten-year limitation period prescribed in SDCL 15-2A-3. Likewise, BDL’s cross-claim against FMG was found to be barred under the ten-year limitation period found in SDCL 15-2A-3. Since that time, the Plaintiff Homeowners and BDL have entered into a settlement. Further, BDL has assigned its claims against FMG to the Plaintiff Homeowners. FMG has filed an objection to this assignment. However, neither the assignment nor the objection to the assignment changes the substantive issues involved in this appeal.

[¶ 10.] On this appeal, we are asked to review the following:

1. Whether the trial court properly dismissed Homeowners’ claim that fraudulent concealment on the part of FMG tolled the ten-year statute of limitation contained in SDCL 15-2A-3.
2. Whether BDL’s constitutional rights were violated when the trial court, under the terms of SDCL 15-2A-3, dismissed BDL’s cross-claim against FMG for indemnity or contribution.

STANDARD OF REVIEW

[¶ 11.] According to Holzer v. Dakota Speedway, Inc., 2000 SD 65, ¶ 8, 610 N.W.2d 787, 791-792, the standard of review for summary judgment is as follows:

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). “Summary judgment will be affirmed if there exists any basis which would support the trial court’s ruling.” Wolff v. SD Game, Fish and Parks Dept., 1996 SD 23, ¶ 32, 544 N.W.2d 531, 537 (citing St. Paul Fire & Marine Ins. Co. v. Schilling, 520 N.W.2d 884, 886 (S.D.1994)) (emphasis added).

[¶ 12.] When reviewing the constitutionality of a statute, our review is de novo. Green v. Siegel, Barnett & Schutz, 1996 SD 146, ¶ 7, 557 N.W.2d 396, 398 (citing Kyllo v. Panzer, 535 N.W.2d 896, 897 (S.D.1995)).

ANALYSIS AND DECISION
[¶ 13.] 1. Whether the trial court properly dismissed Homeowners’ claim that fraudulent concealment on the part of FMG tolled the ten-year statute of limitation contained in SDCL 15-2A-3.

[¶ 14.] FMG contends that it is entitled to summary judgment because the limitation period in the applicable statute of limitation has run. Specifically, SDCL 15-2A-3 provides:

No action to recover damages for any injury to real or personal property, for personal injury or death arising out of any deficiency in the design, planning, supervision, inspection and observation of construction, or construction, of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury or death, may be brought against any person performing or furnishing the design, planning, supervision, inspection and observation of construction, or construction, of such an improvement more than ten years after substantial completion of such construction. The date of substantial completion shall be determined by the date when construction is sufficiently completed so that the owner or his representative can occupy or use the improvement for the use it was intended.

[¶ 15.] However, Plaintiff Homeowners argue that the facts supporting their causes of action were fraudulently concealed by FMG. Therefore, they argue SDCL 15-2A-7 applies. This statute reads:

The limitations contained in this chapter may not be asserted as a defense by any person who is guilty of fraud, fraudulent concealment, fraudulent misrepresentations or willful or wanton misconduct, in furnishing the design, planning, supervision, inspection and observation of construction, or construction, of improvements to real property.

[¶ 16.] The trial court granted summary judgment to FMG despite Plaintiff Homeowners’ claim that fraudulent concealment tolled the ten-year statute of limitation. The trial court based its decision on three grounds. These bases were that there was no confidential relationship between FMG and the Homeowners and therefore, FMG did not have the duty to disclose; the statements by FMG were expression of opinions, rather than affirmations of fact; and FMG disclosed their reports and opinions with the members of the Third Street Committee in 1987. While any of the three rationales provides an independent basis for affirmance, we will examine each separately.

[¶ 17.] Whether FMG had a confidential relationship with Homeowners.

[¶ 18.] The trial court found that there was no confidential relationship between FMG and Plaintiff Homeowners. Further, it correctly found that in the absence of a confidential relationship, there was no duty for FMG to disclose information to the Homeowners. “In the absence of a fiduciary relationship, fraudulent concealment does not exist simply because a cause of action remains undiscovered, but Only when the defendant affirmatively prevents discovery.” Purdy v. Fleming, 2002 SD 156, ¶ 20, 655 N.W.2d 424, 481 (citing Bruske v. Hille, 1997 SD 108, ¶ 19, 567 N.W.2d 872, 879); see also Koenig v. Lambert, 527 N.W.2d 903, 905-06 (S.D.1995); Conway v. Conway, 487 N.W.2d 21, 23 (S.D.1992). “Fiduciary duties, which often produce the duty to disclose, ‘are not inherent in normal arm’s-length business relationship, and arise only when one undertakes to act primarily for another’s benefit.’ ” Schwaiger v. Mitchell Radiology, 2002 SD 97, ¶ 19, 652 N.W.2d 372, 380 (citing Dinsmore v. Piper Jaffray, 1999 SD 56, ¶ 20, 593 N.W.2d 41, 47). Whether a fiduciary duty exists and the scope of that duty are questions of law for the court. Purdy, 2002 SD 156, ¶18, 655 N.W.2d at 431 (additional citations omitted).

[¶ 19.] Clearly FMG’s professional services were hired by BDL and not the Homeowners. Nevertheless, Homeowners argue that there was a confidential relationship between Rick Baker of FMG and them because Homeowners placed their “trust and confidence” in this representative from FMG at the Third Street Committee meeting. The minutes for the Third Street Committee meeting held on July 23, 1987, reflect that a representative from BDL announced the presence of Baker, the soil expert, to “answer some of the questions that were asked at the last meeting.” Further, they argue, the fact that Plaintiff Homeowners are laypersons and Baker is an engineer with much technical expertise, “invited confidence.”

[¶ 20.] We have defined a fiduciary relationship as one which “imparts a position of peculiar confidence placed by one individual in another. A fiduciary is a person with a duty to act primarily for the benefit of another.” Nelson v. WEB Water Development Ass’n, Inc., 507 N.W.2d 691, 698 (S.D.1993) (quoting Garrett v. BankWest, Inc. 459 N.W.2d 833, 837 (S.D. 1990)). In High Plains Genetics Research, Inc. v. J.K. Milk-Iron Ranch, 535 N.W.2d 839, 842 (S.D.1995), we stated that normally in a confidential relationship, the “property, interest, or authority of the other is placed in the charge of the fiduciary.” (citations omitted.) When a fiduciary or confidential relationship is present, mere silence on the part of the fiduciary may support the doctrine of fraudulent concealment. See Klinker v. Beach, 1996 SD 56, ¶ 14, 547 N.W.2d 572, 576.

[¶ 21.] We find that no confidential or fiduciary relationship existed between FMG and the Homeowners. FMG was employed by BDL to conduct soil engineering work. FMG stood in the shoes of BDL and had an arms-length relationship to the Homeowners. See Trouten v. Heritage Mut. Ins. Co., 2001 SD 106, ¶ 32, 632 N.W.2d 856, 864. “As such [FMG] cannot be required to serve two masters who have antagonistic interests.” See id. The potential difficulties of expanding a fiduciary duty in this context were set forth in an examination of the relationship between an attorney and client in Chem-Age Industries, Inc. v. Glover, 2002 SD 122, ¶ 31, 652 N.W.2d 756, 769. Therein, we concluded expansion was precluded because:

(1) It would threaten the fiduciary’s duty of loyalty to and effective representation of its client’s interests;
(2) It would add responsibilities to non-clients creating a danger of conflicting duties with clients;
(3) The number of persons to whom a fiduciary might be accountable could be limitless; and
(4) It would imperil the fiduciary-client relationship.

Id. (citations omitted). Moreover, at no time did FMG hold itself out as being in charge of the Homeowners’ property rights or in some manner representing their interests.

[¶ 22.] Having determined that no confidential relationship existed between FMG and the Homeowners, we next turn to whether FMG took affirmative steps to conceal the facts that supported Homeowners’ causes of action. In Klinker, homeowners brought an action against the builders, alleging faulty workmanship in construction of the home. 1996 SD 56, ¶ 6, 547 N.W.2d at 574. Like the instant case, the homeowners in Klinker brought their cause of action after the ten-year limitation period had run, but alleged that fraudulent concealment by the builders tolled the statute of limitation. We stated that for fraudulent concealment to apply, in the absence of a confidential relationship, there must be some affirmative act or conduct on the part of defendant to prevent discovery of the cause of action. Id. ¶ 14, 547 N.W.2d at 576. In Klinker, we found “no question of material fact existing to support a claim the [builders] committed fraudulent concealment when they sold the home to the [homeowners].” Id. ¶ 17, 547 N.W.2d at 576. Likewise, in the case now before us, there exists no question of material fact that FMG committed affirmative acts of fraudulent concealment. Any claimed failures to disclose to Homeowners were at most omissions, not affirmative acts by FMG.

[¶ 23.] Whether the statements made by FMG to Homeowners were expressions of opinions or facts.

[¶ 24.] Alternatively, Homeowners allege that certain statements made by Baker, the representative from FMG, at the Third Street Committee Meeting, were “designed to prevent” Homeowners’ discovery of their causes of action. The following passage is taken out of the minutes from the meeting which contains Baker’s comments to the Committee:

“[Creep] movement is slow, but ongoing, on any hillside. It’s natural,” Baker stated. He stressed that there was a lot of inter-related things in this area too, such as watering, traffic, underground blasting, etc. He stated that it was his opinion that the cut on the hillside below First St. was not the cause of the movement in that area, (emphasis added).

[¶25.] The Homeowners go on to argue that despite telling the Homeowners that it was FMG’s opinion that removal of the toe of the hill was not to blame for their homes’ movements, “the true and complete concerns” that FMG had, as reflected in the internal memos and correspondence to BDL, “were facts that were not disclosed” to the Homeowners.

[¶ 26.] In order to be actionable, fraud must be based upon the misrepresentation of material fact. As we noted in Klinker:

Fraud has been defined as “a representation ... made as a statement of fact, which was untrue and known to be untrue by the party making it, or else recklessly made; [and] made with intent to deceive and for the purpose of inducing the other party to act upon it.” To be actionable fraud, a party must further “rely on it and [be] induced thereby to act to his injury or damage.”

1996 SD 56, ¶ 13, 547 N.W.2d at 576 (quoting Sander v. Wright, 394 N.W.2d 896, 900-01 (S.D.1986) (Fosheim, J., concurring in result) (citation omitted)). FMG argues that Baker “made a professional, honest, and straight forward presentation to the Third Street Committee.” Further, FMG asserts that its opinions have remained the same over the years; from the beginning until the present, FMG has expressed its opinion that construction of the mall is probably not related to the ground movement. While it had professional concerns about the possibility of soil movement pri- or to construction, after testing and construction, its opinion was that the building of the mall was not the source of the Homeowners’ problems.

[¶ 27.] FMG’s opinions cannot form the basis of a fraudulent concealment claim. FMG did not take any affirmative steps to hide the facts that supported Homeowners’ cause of action. Moreover, there is no evidence that any of the Homeowners relied on anything that was said by Baker at the Third Street Committee Meeting. Significantly, in the 1980’s many of the Homeowners remained convinced that construction of the Mall was the cause of the ground movement, even after Baker informed them that it was his personal opinion that cutting into the slope was not the cause. It appears from the record, that a cause of action could have been brought back in 1987, when the Committee began to meet. Prior to that time Homeowners were aware of cracks in the ground, in foundation walls, movement of homes and sewer and water breaks in their area. That was the reason for the creation of the Committee. The Homeowners were on notice then that there was a possible correlation between construction of the Mall and the ground movement.

[¶ 28.] Whether the facts supporting Homeowners’ claims were readily available to them.

[¶ 29.] Finally, Homeowners argue that whether FMG made a complete disclosure to the members of the Third Street Committee is a question of fact, and therefore, summary judgment was improper. Basically, this argument focuses on the Third Street Committee meetings and the statements made by Baker, the representative from FMG. Essentially, this argument is the same argument made above.

[¶ 30.] The trial court found that “the reports and opinions of FMG were shared with members of the Third Street Committee in 1987. FMG’s ... report findings were readily available during the summer of 1987.” Additionally, because we have held that no confidential relationship existed between FMG and the Homeowners, then the Homeowners must prove that FMG took affirmative steps to hide the facts underlying the causes of action. The Homeowners are unable to do so.

[¶ 31.] For the foregoing reasons, we hold that the fraudulent concealment exception to SDCL 15-2A-3 does not apply to this case. As such, the Homeowners’ claims against FMG are barred by the ten-year statute of limitation. There are no material issues of fact in question and therefore, summary judgment was properly granted to FMG.

[¶ 32.] 2. Were BDL’s constitutional rights violated when the trial court, under the terms of SDCL 15-2A-3, dismissed BDL’s cross-claim against FMG for indemnity or contribution.

[¶ 33.] Pursuant to SDCL 15-2A-3, the trial court granted summary judgment to FMG on BDL’s cross-claim for indemnity or contribution. This statute provides that “... [no] ... action for contribution or indemnity ... may be brought ... more than ten years after substantial completion of such construction.” It is undisputed by the parties that the cross-claim was made after the expiration of the ten-year statute of repose set out in SDCL 15-2A-3. Application of the express terms of SDCL 15-2A-3 requires dismissal of BDL’s cross-claim against FMG. However, BDL, who has assigned this cause of action to Homeowners, alleges that the statute is unconstitutional in violation of Article VI, § 20 of the South Dakota Constitution, our “open courts” provision, because it bars its cross-claim for contribution or indemnity before it has accrued.

[¶ 34.] In Green, 1996 SD 146, ¶7, 557 N.W.2d at 398, we addressed our standard of review for a challenge to the constitutionality of a statute. We stated:

‘There is a strong presumption that the laws enacted by the legislature are constitutional and the presumption is rebutted only when it clearly, palpably and plainly appears that the statute violates a provision of the constitution. Further, the party challenging the constitutionality of a statute bears the burden of proving beyond a reasonable doubt that the statute violates a state or federal constitutional provision.’

(additional citations omitted.)

[¶ 35.] In Daugaard v. Baltic Co-op Bldg. Supply Ass’n, which the Homeowners rely on for support, several injured plaintiffs brought personal injury suits against Baltic Builders and other defendants after a propane explosion at the Baltic Elevator Company. 349 N.W.2d 419, 421-24 (S.D.1984). Ten years before the explosion, Baltic Builders had installed the two underground propane gas lines. The trial court dismissed the plaintiffs’ complaints due to the six-year statute of limitation proscribed. in SDCL 15-2-9, which was SDCL 15-2A-3’s predecessor. However, on appeal, the South Dakota Supreme Court found SDCL 15-2-9 and SDCL 15-2-12.1 unconstitutional. Id. at 427. In so holding, the Court, in a split decision, overruled McMacken v. State, 320 N.W.2d 131 (S.D.1982), and held that these statutes violated the “open courts” provision of the South Dakota Constitution. Id. at 424. It did so declaring that “[o]ur constitution, as enacted by our forefathers and occasionally amended, is solid core upon which all our state laws must be premised. Clearly and unequivocally, our constitution directs that the courts of this state shall be open to the injured and oppressed.” Id. at 425.

[¶ 36.] More recent decisions by this Court have been in contrast to, and not supportive of, Daugaard’s holding. Knowles v. United States, 1996 SD 10, ¶ 83, 544 N.W.2d 183, 203, upheld a medical malpractice cap as constitutional against an open courts challenge. We adopted the analysis of the United States Supreme Court originally authored in the same era in which our open courts provision was enacted (1889) as part of our South Dakota Constitution:

A person has no property, no vested interest, in any rule of the common law ... Rights of property which have been created by the common law cannot be taken away without due process; but the law itself, as a rule of conduct, may be changed at the will, or even at the whim, of the legislature, unless prevented by constitutional limitations. Indeed, the great office of statutes is to remedy defects in the common law as they are developed, and to adapt it to changes of time and circumstance.

Id. ¶ 84, 544 N.W.2d at 203 (citing Munn v. Illinois 94 U.S. (4 Otto) 113, 134, 24 L.Ed. 77, 87 (1876)). This constitutional doctrine continues its viability. The “ ‘Constitution does not forbid the creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object.’ ” Id. (citing Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 88 n. 32, 98 S.Ct. 2620, 2638, 57 L.Ed.2d 595, 620) (quoting Silver v. Silver, 280 U.S. 117, 122, 50 S.Ct. 57, 58, 74 L.Ed. 221 (1929)).

[¶ 37.] Also in 1996, in Klinker, we applied SDCL 15-2A-3 to dismiss the plaintiffs case, which was brought after the ten-year limitation period. 1996 SD 56, ¶ 17, 547 N.W.2d at 576. In that case, we noted the South Dakota Legislature’s findings in regard to SDCL ch 15-2A. These statements can be found in SDCL 15-2A-l. Among these findings are that designers and contractors have no control over how property is used once construction is complete; and they have no right or opportunity to be made aware of how the property is being used and to take any action concerning maintenance or repairs.

[¶ 38.] The same year we decided Knowles and Klinker, this Court also decided Green, 1996 SD 146, 557 N.W.2d 396. In Green, we upheld the constitutionality of the legal malpractice action statutes of repose provided in SDCL 15-2-13 and 15-2-14.2. Id. ¶ 30, 557 N.W.2d at 404. We stated that “the law of this state provides that legal malpractice actions accrue when the alleged malpractice occurs,” not when it is discovered. Id. As a result, the plaintiffs’ claims were barred.

[¶ 39.] In Green, we cited to the North Carolina Supreme Court, which upheld a statute similar to the one at issue in this case. In finding its statute constitutional, that court stated:

For the legislature has not absolutely abolished all claims against builders and designers arising out of improvements they built or designed. Rather, it has established a time period beyond which such claims may not be brought even if the injury giving rise to the claim does not occur until the time period has elapsed.
We are confident that this condition to the legal cognizability of the claim does not violate the constitutional guarantee for that every ‘injury done’ there shall be a ‘remedy.’ The ‘remedy1 constitutionally guaranteed ‘for an injury done’ is qualified by the words ‘by due course of law.’ This means that the remedy constitutionally guaranteed must be one that is legally cognizable. The legislature has the power to define the circumstances under which a remedy is legally cognizable and those under which it is not.

Green, 1996 SD 146, ¶26, 557 N.W.2d at 403 (quoting Lamb v. Wedgewood South Corp., 308 N.C. 419, 444, 302 S.E.2d 868, 882 (1983)).

[¶ 40.] Moreover, we examined the historical context in which the open courts provision was enacted in South Dakota in 1889. We upheld the challenged statute as: (1) there is nothing in the constitutional debates of 1885 and 1889 supportive of the thesis that the open courts provision strikes down limitations upon actions, Green, 1996 SD 146, ¶ 17, 557 N.W.2d at 401; (2) statute of limitation and repose existed in this jurisdiction prior to 1889 and after statehood none of them were repealed with the enactment of the open courts provision, Id. ¶ 18, 557 N.W.2d at 402; and (3) early case law such as Moberg v. Scott, 38 S.D. 422, 161 N.W. 998 (1917), and McClain v. Williams, 10 S.D. 332, 73 N.W. 72 (1897), provided no support for a Daugaard type interpretation. Id. ¶¶ 19-20, 557 N.W.2d at 402.

[¶ 41.] In Wegleitner v. Sattler, 582 N.W.2d 688 (S.D.1998), we compared our open courts analysis in Green to that of surrounding states which also have open courts provisions in their constitutions. Typical was that of Montana:

[T]he Constitution was written and adopted in the light of the conditions and well-known laws ... as they then existed in Montana, and must be construed accordingly. The salutary declarations of section 6 simply recognize fundamentals of government dear to the American heart; they assert nothing new in the way of constitutional declaration, and clearly were not intended to affect statutory laws then existing.

1998 SD 88, ¶ 31, 582 N.W.2d at 698 (citing Conley v. Conley, 92 Mont. 425, 15 P.2d 922, 926 (1932)). In Wegleitner, we upheld a statutory limitation on actions for liquor violations against an open courts challenge. 1998 SD 88, ¶35, 582 N.W.2d at 699.

[¶ 42.] In Vilhauer v. Horsemens’ Sports, Inc., 1999 SD 93, 598 N.W.2d 525, a rodeo worker brought a personal injury-suit against the rodeo organizer, and various other individuals. We reversed the trial court’s decision that SDCL 42-11-1(6)(e), which provides a limited form of partial immunity to those who qualify as an equine activity sponsor, violated the open courts provision of the state’s constitution. 1999 SD 93, ¶ 26, 598 N.W.2d at 531-32. Based upon Knowles; Green and Wegleitner, we concluded that the proper parameters of the open courts provision are as follows:

Given the above nature of the understanding of the drafters of the constitutional provisions and its contemporary judicial interpretations, it is clear that these provisions in South Dakota and surrounding states were meant to allow unhindered access to the courthouse by a person who had a valid cause of action based on existing statute or the common law, timely and properly brought, who then would be allowed to present their case to a human fact finder. In other words under those conditions, a litigant was guaranteed its day in court ... [In past cases we have] found no basis for a claim that Art. VI, § 20 could by itself become a sword to create a cause of action or become a shield to prohibit statutorily recognized barriers to recovery such as a statute of limitations.

Vilhauer, 1999 SD 93, ¶ 17, 598 N.W.2d at 529 (quoting Wegleitner, 1998 SD 88, ¶ 33, 582 N.W.2d at 698). Furthermore, we have held that “the Legislature can put reasonable limits on remedies.” See, e.g., Peterson, 2001 SD 126, ¶ 44, 635 N.W.2d at 571 (citations omitted).

[¶ 43.] In Peterson, 2001 SD 126, ¶46, 635 N.W.2d at 572, we held that a three-year statutory limit for wrongful death did not extend the two-year medical malpractice statute of repose. In so doing, we concluded that Daugaard’s holding was not controlling, but rather cases such as Green were dispositive of the issue.

[¶ 44.] Under a Daugaard analysis, as advocated by Homeowners, if ten years is violative of “open courts” constitutional protection, what about 20 years, 50 years or 100 years or “any longer length of time into perpetuity”? Green, 1996 SD 146 at ¶ 28, 557 N.W.2d at 404.

Where the constitutional validity of a statute depends upon the existence of facts, courts must be cautious about reaching a conclusion respecting them contrary to that reached by the legislature; and if the question of what the facts establish be a fairly debatable one, it is not permissible for the judge to set up his opinion in respect of it against the opinion of the lawmaker.

Knowles, 1996 SD 10, ¶ 67, 544 N.W.2d at 197 (citing Radice v. New York, 264 U.S. 292, 294, 44 S.Ct. 325, 326, 68 L.Ed. 690, 694 (1924)).

[¶ 45.] Based on our above analysis since Daugaard, it can no longer be supported as a correct interpretation of Article VI, § 20 of the South Dakota Constitution. As such Daugaard is set aside in favor of our rulings in Knowles; Green; Klinker; Wegleitner and Peterson. If the people of this state wish an expanded scope for our open courts constitutional provision, the amendment process provides the appropriate avenue for that change.

[¶ 46.] In the case at hand, the Legislature did not abolish the right-to-sue design professionals. It simply limits that right to ten years after substantial completion of construction. FMG did not have any access to, or control over, the Mall once it was completed. Furthermore, since 1986, BDL knew there were indicators of ground movement that possibly could have been caused by construction of the Mall.

[1147.] We hold SDCL 15-2A-3 constitutional and therefore, affirm the trial court’s grant of summary judgment.

[¶ 48.] ZINTER and MEIERHENRY, Justices, and RUSCH, Circuit Judge, and MILLER, Retired Justice, concur.

[¶ 49.] RUSCH, Circuit Judge, sitting for SABERS, Justice, disqualified; and, MILLER, Retired Justice, sitting for KONENKAMP, Justice, disqualified.

      . We also had occasion to examine this concept in the earlier case of Taggart v. Ford Motor Credit, 462 N.W.2d 493 (S.D. 1990). Therein we concluded "[t]he first clause of SDCL 20-10-2(3) imposes liability for suppression of a fact only on 'one who is hound to disclose’ the fact. This court has never imposed a duty to disclose information on parties to an arm’s-length business transaction, absent an employment or fiduciary relationship.” Id. at 499 (citing Voeller v. Geisler, 77 S.D. 96, 86 N.W.2d 395 (1957)) (emphasis in original).

      . According to Peterson v. Burns, 2001 SD 126, ¶ 41, 635 N.W.2d 556, 570, a statute of repose is one that "bars all actions after a specified period of time has run from the occurrence of some event ...” Because the express words of SDCL 15-2A-3 limit direct claims, as well as claims for contribution or indemnity, to ten years after substantial completion, this statute operates as a statute of repose in this case because the claims were cut off before they accrued.

      . Article VI, § 20 of the South Dakota Constitution states:
      All courts shall be open, and every man for an injury done him in his property, person or reputation, shall have remedy by due course of law, and right and justice, administered without denial or delay.

      . The Legislature finds that subsequent to the completion of construction, persons involved in the planning, design and construction of improvements to real estate lack control over the determination of the need for, the undertaking of and the responsibility for maintenance, and lack control over other forces, uses and intervening causes which cause stress, strain, wear and tear to the improvements and, in most cases, have no right or opportunity to be made aware of or to evaluate the effect of these forces on a particular improvement or to take action to overcome the effect of these forces. Therefore, it is in the public interest to set a point in time following the substantial completion of the project after which no action may be brought for errors and omissions in the planning, design and construction of improvements to real estate, whether these errors and omissions have resulted or may result in injury or not, unless the person involved in the planning, design and construction of the improvements was guilty of fraud, fraudulent concealment, fraudulent misrepresentation, willful or wanton misconduct, or unless the person involved in the planning, design and construction of improvements to real estate expressly warranted or guaranteed the improvement for a longer time period. This legislation is determined to be in the public interest and in the interest of equating the rights of due process between the prospective litigants in the areas of planning, design and construction of improvements to real property in an equitable manner, while adjusting the standard of care so that persons attempting to bring actions under a general standard of care against persons involved in the planning, design and construction of improvements to real estate only have ten years to bring actions following substantial completion against those involved in the planning, design and construction, and following that ten-year time period actions may be brought against such persons only if they are guilty of fraud, fraudulent concealment, fraudulent misrepresentation, breach of express warranties or guarantees, or willful or wanton misconduct in the planning, design and construction of improvements to real estate.

      . We also cited to Sigman v. Seafood Ltd. Partnership I, 817 P.2d 527 (Colo.1991); Allen v. Pioneer Press Co., 40 Minn. 117, 41 N.W. 936 (1889); Pullen v. Novak, 169 Neb. 211, 99 N.W.2d 16 (1959); Malin v. La Moure County 27 N.D. 140, 145 N.W. 582 (1914); In re Lee, 64 Okla. 310, 168 P. 53 (1917); Neuhaus v. Clark County, 14 Wis.2d 222, 111 N.W.2d 180 (1961); and Flanders v. Town of Merrimack, 48 Wis. 567, 4 N.W. 741 (1880).

      . We have carefully examined the other constitutional claims of BDL and conclude they are without merit.


source: Caselaw Access Project

author: SABERS, Justice.

license: Public Domain

text:
    2003 SD 56
    In the Interest of T.A., Child, and concerning A.L. Mother, and J.L. Stepfather, Respondents.
    No. 22517.
    Supreme Court of South Dakota.
    Argued March 26, 2003.
    Decided May 14, 2003.

      George F. Johnson of Johnson, Eklund, Nicholson & Peterson, Gregory, for appellants A.L. & J.L.
    Lawrence E. Long, Attorney General, Kirsten E. Jasper, Assistant Attorney General, Pierre, for appellee State.
    Anita L. Fuoss, Murdo, for appellee child.
   SABERS, Justice.

[¶ 1.] A petition alleging abuse and neglect of T.A. was filed on October 10, 2001 and T.A. was removed from his home and placed in foster care. After an adjudicatory hearing, T.A. was adjudged abused and neglected. After a dispositional hearing, T.A. was placed in a residential facility where he attended school and received therapy. J.L., T.A.’s stepfather and A.L., T.A.’s mother (collectively Parents) appeal the trial court’s determination that T.A. was abused and neglected.

FACTS

[¶ 2.] At the time of the events in question, T.A. was twelve years old. He is a special needs child who has been diagnosed with Tourette’s Syndrome and Attention Deficit/Hyperactivity Disorder (ADHD). On October 6, 2001, T.A. and his family were moving into a new home which was located approximately fifty feet from their former home. T.A.’s mother and stepfather testified that throughout the day he was disrespectful and defiant, refusing to assist the family in the move. Toward the end of the day, T.A. was asked repeatedly by his mother to go to the old house and retrieve the trashcan. When he finally complied, he did so by emptying the trash onto the kitchen floor of the old house and tossing the trashcan onto the floor of the new house. His step-sister came to the new house and informed Parents that he had thrown the garbage on the floor. Stepfather testified that T.A. vehemently denied having done so and began crying and screaming. T.A.’s stepfather determined that the child was “out of control” so he took him by the wrist, led him to T.A.’s bedroom and proceeded to spank T.A. with a belt. Stepfather testified that he spanked the child eight to ten times with the belt.

[¶ 3.] Several days later, T.A.’s sister saw a large bruise on his thigh and reported it to his biological father, who reported it to the authorities. On October 9, 2001, agents from the Department of Social Services (DSS) and the Sheriffs office went to T.A.’s school to speak with him. The existence of the bruise was confirmed and T.A. was taken to a physician’s assistant, Diane Kranz, who found bruises on T.A.’s shins, thigh, posterior, his belt fine and his arms. T.A. told Kranz that his stepfather caused some of the bruises and others were caused when he fell running across his yard at night.

[¶ 4.] A petition alleging abuse and neglect was filed on October 10, 2001. The adjudicatory hearing was held on November 14 and 19, 2001 and January 18, 2002. The trial court filed the adjudication order on July 1, 2002. A dispositional hearing was held July 19, 2002 and a dispositional order was entered on August 20, 2002. The Parents appeal raising six issues for review:

1. Whether there is sufficient evidence to sustain the trial court’s finding of abuse and neglect.
2. Whether the trial court improperly joined the adjudicatory and disposi-tional hearings.
3. Whether the trial court abused its discretion in allowing Diane Kranz, the physician’s assistant, to testify as an expert.
4. Whether the trial court abused its discretion in admitting pictures of T.A.
5. Whether SDCL 26-8A-2 is unconstitutional.
6. Whether the trial court abused its discretion in allowing an amendment of the abuse and neglect petition.

We affirm the trial court on all issues.

STANDARD OF REVIEW

[¶ 5.] In reviewing abuse and neglect findings by the trial court, it is our duty to “uphold the trial court’s decision unless the findings of fact are ‘clearly erroneous’.” Interest of D.K., 245 N.W.2d 644, 649 (S.D.1976) (citing Matter of D.T., 89 S.D. 590, 237 N.W.2d 166 (S.D.1975); In re Estate of Hobelsberger, 85 S.D. 282, 181 N.W.2d 455 (1970)). Therefore, the trial court’s decision will be set aside only if after a review of all the evidence, we are left with a “definite and firm conviction that a mistake has been made.” Matter of A.M., 292 N.W.2d 103,105 (S.D.1980) (citations omitted).

[¶ 6.] 1. WHETHER THERE IS SUFFICIENT EVIDENCE TO SUSTAIN THE TRIAL COURT’S FINDING OF ABUSE AND NEGLECT.

[¶ 7.] Parents contend that the evidence presented at the adjudicatory hearing was insufficient to justify the trial court’s finding that T.A. was an abused and neglected child. We review a claim of insufficiency of evidence under the clearly erroneous standard. Matter of J.A.H., 502 N.W.2d 120, 123 (S.D.1993). Essentially, Parents contend that pursuant to SDCL 22-18-5, Stepfather’s spanking with a belt constituted reasonable force used by a parent. SDCL 22-18-5 provides in part:

[t]o use or attempt or offer to use force upon or toward the person of another is not unlawful if committed by a parent ... in the exercise of a lawful authority to restrain or correct his child or ward and if restraint or correction has been rendered necessary by the misconduct of such child or ward, or by his refusal to obey the lawful command of such parent ... and the force used is reasonable in manner and moderate in degree.

Based on this statute, Parents argue that the spanking administered by Stepfather was reasonable corporal punishment necessitated by a course of bad behavior by T.A. over the three months prior to October 6. Parents further argue that the trial court concluded that the force used by Stepfather was unreasonable based solely on the fact that Stepfather could not recall precisely how many times he hit T.A. with the belt on the evening in question. Parents argue that the trial court held that it is per se unreasonable for parents to spank unless the parents “keep[ ]an exact count on the number of spanks.” The record does not support these assertions.

[¶ 8.] The proper inquiry under SDCL 22-18-5 is first whether the restraint or correction was “rendered necessary” by T.A.’s action and second whether the force used by Stepfather was “reasonable in manner and moderate in degree.” Id. The record supports Parents’ assertion that T.A.’s behavior on the day in question was disrespectful and defiant. However, on the day the spanking was administered, Parents failed to intervene in any manner before resorting to spanking. No alternative discipline was attempted prior to the spanking. Furthermore, none of the witnesses in the home during this event testified, as Stepfather did, that T.A. was screaming or crying or otherwise “out of control” prior to the spanking. However, Stepfather contends that screaming and crying were the impetus for the spanking. Because the record does not support Parents' assertion that T.A. was “out of control” or that his behavior necessitated hitting him with a belt, there is no showing of error in the trial court’s determination that this punishment was not “rendered necessary” by T.A.’s behavior.

[¶ 9.] There was also no error in the determination that the force used by Stepfather was not “reasonable in manner” or “moderate in degree.” This spanking left bruises on T.A. that remained for several days. There were also bruises on the child’s arm that Kranz testified were consistent with finger-marks. The bruising on the child was consistent with T.A.’s account of the spanking. Even more significant is the fact that all of the bruising on the child’s posterior, belt-line and arm are consistent with Stepfather’s account of his own actions during the spanking. Specifically, Stepfather stated that he grabbed T.A.’s arm to take him into the bedroom, that he forced T.A. face-down on the mattress and that he held him there while he spanked him. Stepfather also stated that while spanking T.A., he accidentally hit him too high, resulting in a strike over the belt line and consistent with the bruise discovered by the physician’s assistant and DSS. Stepfather claimed that he apologized to T.A. for hitting him too high. Finally, Mother testified that she was aware that Stepfather spanked the child with a belt and that she felt such spanking was permissible, testimony which supports the allegations against Mother that she failed to provide proper parental care by failing to intervene on his behalf.

[¶ 10.] Parents argue that there was insufficient evidence because neither their expert, Dr. Knecht, nor the State’s expert, Diane Kranz, could say to a medical degree of certainty what caused the bruises on the child. The record supports the trial court’s finding that the majority of bruises were caused by the spanking. The testimony brought forth at trial supported the child’s account of the spanking and both experts testified that at least some of the bruising was consistent with spanking with a belt. Parents argued at the hearing that the bruises on the child were a likely result of the child being a “daredevil” who often fell while attempting bicycle and skate-board stunts. The trial court apparently found this testimony unconvincing and there is clear and convincing evidence in the record to support the child’s and State’s assertions that the bruises were a result of the spanking.

[¶ 11.] Parents’ assertion that there was insufficient evidence to support the finding that T.A. was abused and neglected is not supported by the record. The trial court is affirmed as to this issue.

[If 12.] 2. WHETHER THE TRIAL COURT IMPROPERLY JOINED THE ADJUDICATORY AND DIS-POSITIONAL HEARINGS.

[¶ 13.] At the adjudicatory hearing, the trial court heard cases-in-chief from the State and Parents. After State and Parents rested, the trial court, over Parents’ objection, allowed the attorney for the child to present T.A.’s case. Parents and State were permitted to cross-examine the child’s witnesses and at the close of child’s case-in-chief, the trial court offered Parents the opportunity for rebuttal. Parents contend that allowing the child’s attorney to present a case-in-chief at the adjudicatory phase improperly joined the dispositional and adjudicatory phases of the process and therefore violated the requirement that adjudicatory and dispositional phases be bifurcated.

[¶ 14.] SDCL 26-7A-1 defines “adjudicatory hearing” as:

a hearing to determine whether the allegations of a petition alleging that a child is abused or neglected are supported by clear and convincing evidence[.]

[¶ 15.] “Dispositional hearing” is defined as:

a hearing after adjudication at which the court makes an interim or final decision in the case[.]

SDCL 26-7A-56 provides in part that the rules of civil procedure and evidence apply to adjudicatory hearings but that “all other hearings shall be conducted under rules prescribed by the court.” The rules prescribed by the court in other hearings “may be designed by the court to inform the court fully of the exact status of the child and to ascertain the history, environment and the past and present physical, mental and moral condition of the child and the child’s parents ... as may be necessary or appropriate to enable the court to determine suitable disposition of the child[.]” SDCL 26-7A-56.

[¶ 16.] This Court has interpreted these and other statutes pertaining to dispositional and adjudicatory hearings to mean that in most cases, these proceedings should be bifurcated. See e.g. Interest of P.M., 299 N.W.2d 803, 806 (S.D.1980) (stating, “[i]n most cases, the distinctions between adjudicatory and disposi-tional hearings are important, and a failure to keep those distinctions in mind can cause the wrong issues to be litigated in the adjudicatory hearing”). Furthermore, the court is required to enter separate findings of fact and conclusions of law for each phase of the process. Matter of J.L.H., 299 N.W.2d 812, 814 (SD 1980). This is because the adjudicatory hearing looks to the past, e.g. whether there has been abuse or neglect, while the disposi-tional hearing looks to the child’s future. In the Matter of S.H., 337 N.W.2d 179,181 (S.D.1983) (citing Interest of P.M., 299 N.W.2d at 806). The focus of the adjudicatory hearing is to determine whether the allegations in the petition alleging abuse and neglect are supported by clear and convincing evidence. SDCL 26-7A-1(2). The focus of the dispositional hearing is the best interest of the child. Matter of S.H., 337 N.W.2d at 181.

[¶ 17.] In this case, the adjudicatory hearing was held on November 14, 2001, continued to November 19, 2001 and completed on January 18, 2002. The disposi-tional hearing was held on July 19, 2002. There were two separate hearings for each phase of the process, and the findings of fact and conclusions of law for the adjudicatory hearing were filed prior to the dis-positional hearing. However, Parents contend that by allowing child to present a case-in-chief at the adjudicatory hearing after the State and Parents rested, the trial court allowed dispositional evidence at the adjudicatory hearing, thus ignoring the statutory requirement of bifurcation. We disagree. These hearings were properly bifurcated, and the evidence allowed by the trial court during the adjudicatory hearing was permissible.

[¶ 18.] The South Dakota Code is clear that the trial court must appoint an attorney for any child alleged to be abused or neglected. SDCL 26-8A-18. Once appointed, we assume that the attorney will work zealously to protect the interests of the child. Accepting Parents’ assertion that the child should have been prevented from presenting evidence at the adjudicatory hearing would mean that the child’s interests are not presented to the court unless the child is found abused or neglected and a dispositional hearing is held. We do not agree with this result. The child’s interests should be protected throughout the proceedings and the child’s attorney is specifically charged with that duty. Furthermore, SDCL 15-14-2 provides, “[i]f several parties, having separate interests, appear by different counsel, the court must determine their relative order in the evidence and argument.” As noted above, rules of civil procedure apply to adjudicatory hearings. SDCL 15-14-2 is a discretionary rule of civil procedure under which the trial court was entitled to allow the child’s attorney to proceed after the State and Parents concluded their cases-in-chief. It was not error to permit the child’s attorney to present evidence at the adjudicatory hearing.

[¶ 19.] Having held that the child’s attorney is entitled to present evidence at the adjudicatory phase, it must be determined what type of evidence may be admitted. SDCL 26-7A-56 mandates that the rules of civil procedure apply to an adjudicatory hearing. SDCL 26-7A-83 expands the scope of permissible evidence at an adjudicatory hearing to include “information relating to the child’s mental, physical and social history” and “circumstances then affecting the child.” Therefore, information pertaining to the child’s life in and out of the home prior to the adjudicatory hearing is permissible. Furthermore, evidence relating to the current status of the child is also permissible as “circumstances then affecting the child.”

[¶ 20.] The majority of the testimony provided by the child’s witnesses was introduced in response to the Parents’ consistent and overriding assertion that T.A. was out of control and that the only way to regain control was to hit him with a belt. That testimony was provided by various adults in child’s life who stated that corporal punishment was not necessary to control his behavior. Those testifying included T.A.’s special education teacher, his foster father, his maternal grandparents and his caseworker from DSS. All of these witnesses testified regarding T.A.’s behavioral problems, his behavior both during and before his placement in foster care and his attitude toward his parents. They also testified that they had never needed to resort to physical punishment in order to control T.A.’s behavior.

[¶ 21.] This testimony was .all in direct response to Parents’ case-in-chief. The record reveals that Parents’ primary arguments were that 1) the child’s behavior was often uncontrollable; 2) the “only person in earth” who could keep the child’s behavior in check was Stepfather and 3) the only way Stepfather could control the child was if he was entitled to spank him with the belt. Parents invited testimony regarding whether the child could be controlled without belt spanking by raising SDCL 22-18-5, the corporal punishment statute, and T-.A.’s behavior as justification for the spanking. Parents have failed to show error in the trial court’s decision to allow this evidence.

[¶ 22.] 3. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING DIANE KRANZ, THE PHYSICIAN’S ASSISTANT, TO TESTIFY AS AN EXPERT.

[¶ 23.] After DSS took T.A. into custody, his caseworker took him to be examined by Diane Kranz, a physician’s assistant. Kranz viewed the bruising on T.A.’s body, took pictures and discussed the bruises with him. Kranz was the only medical person to view the bruises within days of the spanking. The State called Kranz to testify about the bruising and her opinions regarding the cause of the bruises. Parents objected to her qualification as an expert because she was not a physician and because she performed no tests to determine the cause of the bruising.

[¶ 24.] The trial court retains “broad discretion in ruling on the admissibility of expert opinions. [] We will not reverse a court’s evidentiary rulings absent a clear abuse of discretion.” Garland v. Rossknecht, 2001 SD 42, ¶ 9, 624 N.W.2d 700, 702 (internal and additional citations omitted). The trial court did not abuse its discretion in allowing Kranz’s testimony.

[¶ 25.] Parents’ first objection to admission of Kranz’s testimony was that the State failed to lay a foundation establishing her as an expert. On voir dire, Parents’ attorney established that as a physician’s assistant, Kranz was required to be supervised by a doctor because the doctor was the medical expert. This voir dire, Parents contend, established that Kranz was not an expert. The arguments offered in support of this assertion are: 1) that Kranz admitted on voih dire that she was not an expert in the medical field, and 2) that because she is not a doctor she cannot be qualified as an expert. Neither assertion stands in light of our rules of evidence on the admissibility of expert testimony.

[¶ 26.] The opinion of the witness regarding her own expertise is not controlling. The court must determine whether the witness will be considered an expert, and will make that determination independent of what the witness believes about his or her expertise. This witness was the only medically trained person to see the child within days of the spanking. Furthermore, SDCL 19-15-2 provides that a person “qualified as an expert by knowledge, skill, experience, training, or education may testify ... in the form of an opinion or otherwise.” In other words, there is no requirement that the person actually be a doctor in order to be qualified to give a medical opinion. The trial court need only determine “that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.” Estate of Dokken, 2000 SD 9, ¶ 40, 604 N.W.2d 487, 498 (citations omitted). These determinations were made by the trial court and there was no showing of abuse of discretion.

[¶ 27.] Parents next contend that under Daubert and Kumho, Kranz’s opinions should have been stricken from the record because she performed no tests in arriving at her opinions. See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993); Kumho Tire Co. Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). Parents’ argument misapprehends the applicability of these cases. This Court has stated that Daubert and its progeny “offer general guides for courts to consider in assessing reliability: testing, peer review, error rate and general acceptance!.] These factors cannot be applied in all settings. In some instances, reliability must focus on ‘knowledge and experience’.” Garland, 2001 SD 42, ¶ 11, 624 N.W.2d at 703 (internal citations omitted). Parents would have this Court create a requirement that the medical profession devise a test to determine how and why a child bruises in order for a medical professional to testify as to whether the child’s injuries are consistent with abuse. To our knowledge, there is no such test available and it strains common sense to create such a requirement. Kranz testified that in addition to her licensure as a physician’s assistant, she had also worked as a nurse. She was involved in numerous child protection cases and was familiar with blunt trauma injuries. This was sufficient to qualify Kranz to testify as an expert in the instant case and Daubert does not require more.

[¶ 28.] The trial court was entitled to accept or disregard the opinions of both experts in this case. Parents’ expert was a medical doctor rather than a physician’s assistant. However, he never examined the child, and testified only as to his opinion based on photographs of the bruises. His own testimony gives sufficient justification for rejection of his opinions. Specifically, he was testifying as to his opinion of how the bruises were caused based on pictures that he repeatedly stated were of poor quality. There is no showing that the trial court abused its discretion on this issue.

[¶ 29.] 4. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN ADMITTING PICTURES OF T.A.

[¶ 30.] Parents argue that the trial court abused its discretion in allowing the State to introduce pictures of T.A.’s bruises into evidence. Parents contend that they made several written requests for the pictures but did not get the pictures in time for their expert to view them before he testified. Relying on SDCL 26-7A-60, Parents argue that the State violated discovery rules and should have been prevented from entering the pictures into evidence.

[¶ 31.] SDCL 26-7A-73 provides in part that when a party fails to comply with discovery, the court “may order the party to permit the discovery or inspection, grant a continuance or prohibit the party from introducing evidence not disclosed or the court may enter another order that the court considers just under the circumstances.” The trial court denied Parents’ motion to exclude the pictures. Parents argue this was an abuse of discretion because they were prevented from having their expert view the pictures before he testified. They contend this was prejudicial because the State’s expert, who, due to scheduling difficulties, testified after Parents’ expert, relied on the pictures for her testimony, and Parents’ expert was unable to counter her testimony because he had no opportunity to view the pictures before he testified.

[¶ 32.] The record does not support Parents’ assertion that the pictures should have been excluded. First, Parents’ attorney viewed the pictures prior to the hearing and the record provides no evidence that the State’s Attorney prevented Parents’ access to the pictures. Second, although Parents’ attorney wrote letters to the State’s Attorney regarding the pictures, there was no motion to compel production of the pictures, although a motion to compel is not mandatory. Third, SDCL 26-7A-73 gives the court discretion to determine whether and how to sanction parties for failure to comply with discovery, and refusal to admit the evidence is only one possible option. Parents were offered a continuance, which they declined. Finally, Parents recalled their expert to attempt to rebut Kranz’s testimony therefore eliminating any claimed prejudice resulting from the delay in receiving the pictures. There is no showing that the trial court abused its discretion in denying the Parents’ motion to exclude the pictures.

[¶ 33.] 5. WHETHER SDCL 26-8A-2 IS UNCONSTITUTIONAL.

[¶ 34.] Parents argue that South Dakota’s child abuse statute, SDCL 26-8A-2 is unconstitutionally broad, vague and ambiguous. Parents acknowledge that the predecessor statute to SDCL 26-8A-2 has withstood several attacks on its constitutionality, but argue that this is the first case “with facts and circumstances that do not immediately and automatically lend themselves to a finding of abuse.” This Court has consistently upheld the constitutionality of South Dakota’s child abuse statute. Parents’ assertion that the facts of this case call its constitutionality into clear question for the first time presumes that this Court declared the statute constitutional based only on the specific facts of the previous cases. This is not supported by our precedent. We have held that the predecessor to this statute “convey[ed] sufficiently definite warning as to proscribed conduct when measured by common understanding and practice. Due process requires no more.” Matter of D.T., 89 S.D. 590, 596, 237 N.W.2d 166, 169 (1975) (citing U.S. v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877). The fact that Parents’ actions in this case are arguably less egregious than those of parents in prior cases does nothing to lessen the viability of our previous holdings concerning constitutionality. A reasonable person would be aware that forcing a child face down on a mattress, grabbing the child’s arm tight enough to leave bruises and beating him hard enough with a belt to leave bruises constitutes abuse rather than reasonable corporal punishment.

[¶ 35.] 6. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN ALLOWING AN AMENDMENT OF THE ABUSE AND NEGLECT PETITION.

[¶ 36.] On the day of the adjudicatory hearing, the State amended the abuse and neglect petition. One amendment added the allegation that the child had been subjected to repeated spankings over several months. The amendment also added to the original allegation that the spanking of October 6 resulted in bruises along T.A.’s belt-line, the bottom of his buttocks, his right hip, thigh and other bruises on his arms and wrist. The original petition named only the bruise on his right hip. Parents argue that allowing the State to proceed on the amended petition was abuse of discretion.

[¶ 37.] The State made no motion to amend but rather stated before the court that “I thought it was necessary to amend the petition, and so I amended, it, and immediately faxed a copy to [the other attorneys].” Parents objected to the amended petition, but the trial court overruled the objection noting that leave to amend should be freely given when justice requires. See SDCL 15-6-15(a). The trial court then offered Parents a continuance in order to prepare to better meet the amended petition. After discussion with their attorney, Parents declined the offer of a continuance.

[¶ 38.] We have held that a “trial court may permit the amendment of pleadings before, during and after trial without the adverse party’s consent.” Tesch v. Tesch, 399 N.W.2d 880, 882 (S.D.1987) (citations omitted). The court’s decision to allow an amendment will not be disturbed on appeal unless there is a clear abuse of discretion which results in prejudice to the non-moving party. Id. Parents allege that they were prejudiced by the amendment because the amendments “cured errors and inadequacies which were the basis for [Parents’] motions in limine” filed prior to the adjudicatory hearing. The amendments did address issues which Parents raised in their motions in limine, and having already raised those issues, they were presumably prepared to make those arguments again and were neither surprised nor prejudiced. Furthermore, Parents were offered the opportunity to continue the hearing and although they now claim they were surprised by the changes in the petition, they declined the opportunity. Finally, SDCL 26-7A-6 provides that courts are to construe rules liberally for the purpose of protecting the children. The State is required to file the original petition of abuse and neglect within forty eight hours of the time a child is taken into custody. SDCL 26-7A-14. Therefore, a thorough investigation is seldom complete at the time the original petition is filed. In order to better protect children in abuse and neglect proceedings, trial courts should allow amendment of petitions to conform to the subsequent investigation. Parents have failed to show that allowing the amendments to the original petition was an abuse of discretion.

[¶ 39.] Affirmed.

[¶ 40.] GILBERTSON, Chief Justice, and KONENKAMP, ZINTER and MEIERHENRY, Justices, concur.

      . While this case was pending on appeal, all parties requested a limited remand to allow the trial court to take evidence, and if appropriate, authorize T.A.’s return home. We granted the request. T.A.’s return home does not, however, moot this appeal because Parents are appealing the trial court’s finding of child abuse rather than the child's placement.

      . ADHD and its effects are discussed at length in footnote 3 and the surrounding text in Meldrum v. Novotny, 2002 SD 15, ¶ 40-45, 640 N.W.2d 460, 467-68.

      . Among the findings the trial court relied on in its determination that the child was abused and neglected were:
      1) J.L. admitted that he grabbed T.A.'s arm and forced him over onto the mattress to administer the spanking;
      2) J.L. admitted that he held T.A. down and hit him 8 to 10 times with a doubled over belt;
      3) J.L. admits that while he was hitting T.A. on the posterior, T.A. tried to squirm away and J.L. hit him on the lower back;
      4) During the beating, T.A. was wearing jeans;
      5) J.L. testified that when he spanks he continues to hit T.A. until T.A. relaxes and J.L. has control over him again;
      6) J.L. told the Deputy Sheriff that on the evening of October 6, T.A. "did get me rather riled”;
      7) Although Parents testified that they use numerous disciplinary tactics, on the day in question, none other than spanking were utilized;
      8) A.L. testified that she knew J.L. was going to hit T.A. with a belt and she approved;
      9) A.L. refused to ask J.L. to temporarily leave the house during pendency of the proceedings, forcing foster care placement for the child;
      10) Photographs of T.A.’s belt line showed bruising consistent with being hit with a belt;
      11) T.A. had bruising on his forearms and wrists that he received while trying to protect himself from the belt;
      12) J.L. admits that he did give T.A. a "whipping with the belt” and that he gave T.A. "a pretty good whomp with a belt.”;
      13) Although he testified he did not believe he left bruises with the spanking, J.L. admitted that he could have because he was "sure putting it on him good enough to get back in control of the situation.”

      . The exchange between Parents’ counsel and Kranz was as follows:
      Q: You are a P.A., correct?
      A: Yes, I am.
      Q: That means you are an assistant to a doctor?
      A: Yes.
      Q: And that means that the doctor has to supervise your work?
      A: Yes he does.
      Q: And the doctor supervises your work because he is an expert in the medical field?
      A: Yes.
      Q: And you have somebody supervise your work because you are not an expert in the medical field?
      A: Yes.

      . SDCL 26-7A-60 provides:
      On the written request of a respondent or a child, the State's Attorney shall permit the respondent or child to inspect and copy or photograph books, papers, documents, photographs ... which are in the possession, custody or control of the State's Attorney and which are material to the preparation of the respondent's or child's case, which are intended for use by the State's Attorney as evidence in chief at the hearing, or which were obtained from or belong to the respondent or child.

      . This allegation was dismissed at the close of the State's case because the State failed to prove the previous spankings occurred.


author: ZINTER, Justice.

text:
    2003 SD 61
    ACCOUNTS MANAGEMENT, INC., Plaintiff and Appellant, v. Jon NELSON, Barb Nelson, Robert Nelson, and Jane/John Does 1-5, Defendants and Appellees.
    No. 22578.
    Supreme Court of South Dakota.
    Considered on Briefs March 24, 2003.
    Decided May 21, 2003.
    Robert R. Nelson, Sioux Falls, for plaintiff and appellant.
    Gale E. Fisher, Sioux Falls, for defendants and appellees.
   ZINTER, Justice.

[¶ 1.] James Nelson was admitted to McKennan Hospital, where he remained until his death. Eight days prior to his admission, approximately $1.2 million was deposited into a trust for Nelson’s needs. Not knowing of the trust, McKennan applied for and received Medicare benefits on his behalf. After Nelson’s death, McKennan filed a claim against his estate for the remaining expenses not covered by Medicare. This claim was paid by the estate, and McKennan released the estate from all further claims. However, in a subsequent Medicare audit, it was learned that Nelson was not entitled to the Medicare benefits McKennan had received. Medicare therefore recouped the payment it made for Nelson’s hospital costs, and McKennan initiated this suit against Nelson’s adult children (hereinafter referred to as the children) for the hospital bill. McKennan asserted that the children were liable for their father’s hospital bill “in equity” and under a statute making adult children hable for support provided to a parent who is unable to provide for his or her own care. The circuit court granted the children’s motion for summary judgment concluding: (1) that McKennan should have filed an amended or contingent probate claim; (2) that James was not “unable to provide for himself’ within the meaning of the statute subjecting adult children .to liability for the support of their parents; and, (3) that the children were not otherwise liable for the hospital bill “in equity.” McKennan appeals, and we affirm.

FACTS AND PROCEDURAL HISTORY

[¶ 2.] James Nelson was hospitalized at McKennan Hospital from December 30, 1992, until his death on February 3, 1993. Eight days before James’ admission, Safe-co Insurance Company deposited approximately $1,200,000.00 into a trust for Nelson’s benefit. The money came from a settlement of Nelson’s personal injury claim. McKennan was apparently unaware of this money, and it submitted a claim for Medicare reimbursement on March 4,1993.

[¶ 3.] On March 23, 1993, McKennan received a Medicare payment of $15,657.85 on its total bill of $73,308.10. Under Part A of Medicare, McKennan was required to accept this payment as a complete satisfaction of all charges, except for certain deductible, non-covered and co-payment obligations. After the Medicare payment and all adjustments, Nelson’s account balance was $42.73.

[¶ 4.] The probate of Nelson’s estate was commenced by filing a petition for letters. of administration in Minnehaha County on March 31, 1993. McKennan submitted this claim of $42.73 to the estate. The claim was paid by the estate on or about August 2, 1994. In return, the hospital executed a release and satisfaction, which released and discharged the estate and the estate representative of all claims and demands.

[¶ 5.] However, in February 1995, after a hospital Medicare audit, McKennan was informed that prior to his hospitalization, Nelson had exhausted his “lifetime days” allowed under the Medicare Part A program. This disqualified Nelson from Part A benefits, and the Medicare payment to McKennan was recouped by set-off against McKennan’s other Medicare claims. After the set-off, Nelson’s bill at McKennan was $51,736.56.

[¶ 6.] On March 3, 1995, eighteen days before the estate was closed, McKennan received notice of the Medicare recoupment. Although McKennan had notice of Medicare’s intention to recoup while the estate was still open, McKennan did not attempt to amend its claim or seek other relief against Nelson’s estate. Instead, McKennan waited approximately thirteen months after the estate was closed before notifying the children of the current claim. McKennan eventually initiated this action against the children under SDCL 25-7-27. That statute requires adult children, having the financial ability, to provide necessary food, clothing, shelter or medical attendance for a parent “who is unable to provide for himself.” Id. McKennan also sought recovery on unspecified equity claims.

[¶ 7.] After a hearing, the circuit court granted summary judgment to the children. The circuit court held that the children were not hable because either Nelson or his estate was able to “provide for himself’ within the meaning of SDCL 25-7-27. The circuit court also found no authority to support McKennan’s unspecified equitable claims for relief. McKennan appeals.

STANDARD OF REVIEW

[¶ 8.] Our standard of review for the grant or denial of a summary judgment is well settled.

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 [established] 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.... Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied.

Braun v. New Hope Township, 2002 SD 67, ¶ 8, 646 N.W.2d 737, 739 (quoting South Dakota State Cement Plant Commission v. Wausau Underwriters Ins. Co., 2000 SD 116, ¶ 9, 616 N.W.2d 397, 400-01).

DECISION

[¶ 9.] “At common law, an adult child was not required to support a parent. Such an obligation could only be created by statute. Such statutes trace their beginnings from the Elizabethan Poor Law of 1601 in England. South Dakota adopted [a statute] in 1963.” Americana Healthcare Center v. Randall, 513 N.W.2d 566, 571 (S.D.1994) (internal citations omitted).

[¶ 10.] The South Dakota statute requires adult children, who are financially able, to provide necessary medical care to an “indigent” parent. Id.; SDCL 25-7-27. At the time McKennan’s action accrued, the statute provided:

Every adult child, having the financial ability so to do shall provide necessary food, clothing, shelter or medical attendance for a parent who is unable to provide for himself, provided that no claim shall be made against such adult child until notice has been given such adult child that his parent is unable to provide for himself, and such adult shall have refused to provide for his parent.

SDCL 25-7-27. (Emphasis added).

[¶ 11.] Applying this statute, there is no dispute that: Jon, Barbara, and Robert Nelson are James Nelson’s adult children; the adult children had the financial ability to provide necessary food, clothing, shelter or medical attendance for their father; that notice was given to the children of the claims made by McKennan under the provisions of SDCL 25-7-27; and, the children have refused to pay the debt to McKennan. The dispute is whether McKennan can show that Nelson was “unable to provide for himself’ when his estate or his trust had the financial ability to pay the claim.

[¶ 12.] When McKennan’s cause of action accrued, South Dakota had not adopted the Uniform Probate Code. Under the probate statutes in effect at that time, claimants had to file their claims within four months after the publication of notice to creditors, or within thirty days after the mailing of written notice.

All claims arising upon contract whether due, not due, or contingent, are barred if not filed within four months after the first publication of notice to creditors, or within thirty days after the mailing of notice required by § 30-21-13.1, whichever is later....

SDCL 30-21-17 (repealed).

[¶ 13.] McKennan argues that Nelson was indigent and unable to provide for himself because this filing deadline expired before McKennan received notice of the Medicare recoupment. However, the probate statutes in effect at that time also allowed McKennan to amend its claim. Under those statutes, a party who filed its initial claim within the time requirements of SDCL 30-21-17, could amend its claim after the initial time to file a claim had expired. SDCL 30-21-26 provided:

When any creditor has presented or filed his claim as provided in § 30-21-13, and within the time prescribed in § 30-21-17, the court may, for good cause shown, and on such notice as the court deems proper, and either before or after the expiration of the time for presenting or filing claims, permit such creditor to amend such claim, either in form or substance. No such defect in the form or contents of any claim presented or filed shall deprive a creditor of any rights whatsoever, if it satisfactorily appears that such, creditor acted in good faith, and if his claim is amended as provided by this section to conform with the requirements of this chapter.

(Emphasis added).

[¶ 14.] Here, McKennan timely filed an original claim for the amount it then thought was due. Moreover, it was notified of the Medicare recoupment eighteen days before the estate was closed. Because the estate was solvent and McKen-nan could have amended its claim, Nelson’s estate could have paid the bill. Therefore, Nelson was able to “provide for himself’ within the meaning of the support statute.

[¶ 15.] McKennan, however, argues that it would have been fruitless to file an amended claim when McKennan received notice of Medicare’s intention to recoup. McKennan contends that the release it signed would have defeated any other claim it may have made. McKennan further contends that the representative had already received authorization to disburse the balance of the estate at the time McKennan received the Medicare notice. Therefore, McKennan asserts that even if it had amended its claim, these obstacles-would have prevented it from collecting from the estate.

[¶ 16.] We are not persuaded by these hypothetical arguments. The statutes in effect at that time allowed McKennan to amend its original claim. If McKennan had done so, it could have confronted these “obstacles” before the estate was closed, and the probate court would have had an opportunity to rule on them. We decline to resolve such speculative arguments when McKennan failed to even file the appropriate claim against a solvent estate.

[¶ 17.] McKennan next argues that SDCL 25-7-27 does not specify that a parent must be “indigent,” but instead, only that a parent is “unable to provide for himself.” McKennan asserts that because Nelson was deceased at the time the bill became due, he was physically “unable to provide for himself.” McKennan argues that physical inability should be sufficient to sustain a cause of action under 25-7-27.

[¶ 18.] McKennan’s argument is without merit. As we specifically held in Americana, a plaintiff in an action arising under SDCL 25-7-27 must prove “the indigence of the person to whom [medical care] was furnished.” Americana, 513 N.W.2d at 571 (quoting Bismarck Hospital and Deaconesses Home v. Harris, 68 N.D. 374, 280 N.W. 423 (N.D.1938)). Here, Nelson’s solvent estate negates Nelson’s indigence irrespective of his physical ability to pay his bills.

[¶ 19.] McKennan also raises two arguments contending that Nelson was indigent in spite of the trust funds. It first argues that Nelson was indigent because he had no control over the trust. However, we believe that McKennan’s entitlement to the assets of the trust during Nelson’s lifetime is irrelevant. It is irrelevant because the assets were transferred to Nelson’s estate upon his death, and McKennan’s claim for the cost of Nelson’s last illness was a proper claim against the estate.

[¶ 20.] McKennan further argues that the terms of the trust prevented the trustee from using trust assets for hospital expenses. Again, however, it is undisputed that even if trust assets were unavailable, the trust assets were paid into the estate. That estate had cash exceeding $113,000, with expenses not exceeding $34,294.80, when McKennan could have asserted its amended claim. Therefore, at the time McKennan’s amended cause of action under SDCL 25-7-27 accrued, Nelson’s estate was solvent. Because Nelson’s estate was solvent, Nelson was not indigent, and the availability of trust assets was irrelevant.

[¶ 21.] McKennan finally argues that the trial court erred in not granting relief based upon “equity and social policy.” However, McKennan cites no authority for this argument. SDCL 15-26A-60 sets forth the requirements of an appellate brief submitted to this Court. SDCL 15-26A-60(6) provides in part “[t]he argument shall contain the contentions of the party with respect to the issues presented, the reasons therefore, and the citations to the authorities relied on.” It is well settled that the failure to cite supporting authority is a violation of SDCL 15-26A-60(6), and the issue is thereby deemed waived. State v. Pellegrino, 1998 SD 39, ¶22, 577 N.W.2d 590, 599 (quoting State v. Knoche, 515 N.W.2d 834, 840 (S.D.1994); Cooper v. Hauschild, 527 N.W.2d 908, 912 (1995); Kanaly v. State, 403 N.W.2d 33, 34 (S.D. 1987); Kostel Funeral Home v. Duke Tufty Co., 393 N.W.2d 449, 452 (S.D.1986)). This argument was waived.

[¶ 22.] We affirm.

[¶ 23.] GILBERTSON, Chief Justice, and KONENKAMP and MEIERHENRY, Justices, concur.

[¶ 24.] SABERS, Justice, deeming himself disqualified, did not participate.

      . On December 29, 1998, McKennan transferred James Nelson’s account to Accounts Management, Inc. Accounts Management and McKennan are collectively referred to as "McKennan.”

      . Under the terms of the trust, the trustee had . the discretion to make certain distributions of income and principal for the benefit of Nelson while he was living, and was further given discretionary power to pay the expenses of Nelson's last illness and funeral. Upon Nelson’s death, the trustee was directed to distribute and deliver the residue of the trust to Nelson's estate.

      .McKennan states in its brief that the children represented to McKennan that they were "applying for Medicaid assistance.” To support this claim, McKennan relies on an affidavit from Paul Stubbe in the McKennan Business Office. However, Stubbe’s affidavit does not make this assertion. Moreover, the children dispute McKennan’s assertion.

      . Notwithstanding the recoupment of the payment under Medicare Part A, McKennan received other payments under Medicare Part B for various ancillary services that a hospital is entitled to claim when a patient has exhausted his or her lifetime benefit days. As a result of these payments, Nelson’s balance was $51,736.56.

      . The trial court also held that McKennan had the option of filing a contingent claim against the estate, which may have been collectable in the event that Medicare recouped its payment. McKennan argues that such a claim would constitute Medicare fraud. McKennan also argues that contingent claims would tie up estates for up to ten years while it waited for potential audits. Because McKennan had time to amend its claim, we need not decide whether McKennan was required to file a contingent claim.

      . This contention appears to be incorrect under the terms of the trust.