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Wayne Masloskie and v. Century 21 American Real

August 1, 2012

WAYNE MASLOSKIE AND SANDRA MASLOSKIE,
v.
CENTURY 21 AMERICAN REAL ESTATE, INC., A SOUTH DAKOTA CORPORATION AND G. PAT BALDWIN, PLAINTIFFS AND APPELLANTS, DEFENDANTS AND APPELLEES.



APPEAL FROM THE CIRCUIT COURT OF THE FOURTH JUDICIAL CIRCUIT MEADE COUNTY, SOUTH DAKOTA THE HONORABLE JOHN W. BASTIAN Judge

The opinion of the court was delivered by: Zinter, Justice

#26225-rev & rem-SLZ

CONSIDERED ON BRIEFS ON MAY 21, 2012

[¶1.] Wayne and Sandra Masloskie sued real estate agent G. Pat Baldwin and Century 21 American Real Estate Inc. on a number of causes of action including actual fraud. Baldwin and Century 21 moved for summary judgment, arguing that all causes of action were barred by statutes of limitation governing realtor malpractice. The circuit court granted summary judgment dismissing all claims. Masloskies appeal the dismissal of their cause of action for fraud. Because that cause of action is subject to a longer statute of limitations, we reverse and remand that portion of the judgment.

Facts and Procedural History

[¶2.] We restate the facts in a light most favorable to Masloskies. In August 2006, Masloskies noticed a listing for a parcel of real property in Meade County. Masloskies contacted Baldwin, the listing agent who worked for Century 21. Baldwin showed Masloskies the property. Wayne Masloskie asked Baldwin how electricity would be supplied to the property. Baldwin represented that Masloskies could connect to a power pole 277 feet away on property owned by the United States Forest Service. Wayne asked Baldwin how he knew they would be able to connect to the power pole on Forest Service property. Baldwin responded that he had discussed the matter with Dave Zwitzeg of Butte Electric. Relying on Baldwin's representations, Masloskies purchased the property in October 2006.

[¶3.] When Masloskies began building a home on the property in the spring of 2007, they discovered that Baldwin's representations were not true. The Forest Service would not allow Masloskies to connect a private power line to the Forest Service's pole. Wayne then contacted Dave Zwitzeg of Butte Electric. Zwitzeg indicated that he never told Baldwin that a private party could connect a power line to the power pole on Forest Service property. Baldwin later admitted that he had not contacted the Forest Service to determine whether private purchasers of the property could cross Forest Service property and connect to its power pole. Because Masloskies could not connect to the Forest Service's power pole, they incurred substantial unanticipated expense connecting to an alternate power source more than a half mile away.

[¶4.] In June 2011, Masloskies brought suit against Baldwin and Century 21 (hereinafter collectively "Baldwin"). Masloskies asserted separate causes of action for fraud and deceit, negligent misrepresentation, breach of fiduciary duty, breach of contract, and breach of good faith and fair dealing. Masloskies also sought punitive damages.

[¶5.] Baldwin moved for summary judgment on all claims. Baldwin argued that Masloskies' claims were barred by SDCL 15-2-14.6 and SDCL 15-2-14.7, threeyear statutes of limitation for malpractice by realtors. Masloskies resisted the motion, arguing that SDCL 15-2-13(6), a six-year statute of limitations for fraud applied. The circuit court granted summary judgment ruling that all causes of action were time barred under the malpractice statutes.

Decision

[¶6.] Masloskies argue that the circuit court erred in applying the malpractice statutes of limitation to their claim for fraud. The construction and application of statutes of limitation presents a legal question that we review de novo. Jensen v. Kasik, 2008 S.D. 113, ¶ 4, 758 N.W.2d 87, 88.

[¶7.] SDCL 15-2-14.6 is the statute of limitations for realtor "malpractice, error, mistake, or omission." The statute 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 ...


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