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Zhang v. Rasmus

Supreme Court of South Dakota

July 24, 2019

ZHI GANG ZHANG, Plaintiff and Appellant,
v.
DAN RASMUS, AN INDIVIDUAL, RASMUS LAW OFFICE, LLC; TIM JAMES, AN INDIVIDUAL, JAMES LAW, PC; WILLIAM R. SKOLNICK, AN INDIVIDUAL, AMY D. JOYCE, AN INDIVIDUAL, SKOLNICK & SHIFF, P.A., Defendants and Appellees.

          CONSIDERED ON BRIEFS ON NOVEMBER 12, 2018

          APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT BROWN COUNTY, SOUTH DAKOTA THE HONORABLE SCOTT P. MYREN Judge

          DR. ZHI GANG ZHANG Pro Se plaintiff and appellant.

          ROBERT D. TRZYNKA of Cutler Law Firm, LLP Sioux Falls, South Dakota Attorneys for defendants and appellees Dan Rasmus and Rasmus Law Office, LLC.

          WILLIAM P. FULLER MOLLY K. BECK of Fuller & Williamson, LLP Sioux Falls, South Dakota Attorneys for Appellee Tim James and James Law, PC.

          DANIEL F. DUFFY BENJAMIN D. TRONNES of Bangs, McCullen, Butler, Foye & Simmons, LLP Rapid City, South Dakota Attorneys for Appellee William R. Skolnick, Amy D. Joyce and Skolnick & Shiff, P.A.

          SALTER, JUSTICE

         [¶1.] Dr. Zhi Gang Zhang, proceeding pro se, commenced this legal malpractice action against his former attorneys who were, themselves, engaged to prosecute a legal malpractice claim against Zhang's former divorce attorney. The circuit court granted one attorney's motion to dismiss for lack of personal jurisdiction and granted summary judgment in favor of all the former attorneys. Zhang appeals, arguing the circuit court erred when it granted the motion to dismiss and the summary judgment motions. Zhang further claims the court abused its discretion when it denied his request to amend his complaint and required him to seek court approval to use an interpreter. We reverse the circuit court's order dismissing the complaint for lack of personal jurisdiction and affirm the court's determinations of the remaining issues.

         Background

         [¶2.] Zhang is a physician who practices in Aberdeen. In September 2009, he retained Jodi Brown to commence a divorce action against his then-spouse. The parties were able to resolve the issues related to their divorce by agreement, with the exception of spousal support. The circuit court judge presiding over the divorce action conducted a court trial, and after reviewing the well-established alimony factors, awarded Zhang's ex-wife permanent spousal support in the amount of $7, 500 per month. Zhang did not appeal the court's order, but he viewed the result as adverse.

         [¶3.] In 2012, Zhang contacted attorney Tim James to explore a legal malpractice claim against Brown. Since James did not practice family law, he asked an experienced family law attorney for assistance with reviewing Zhang's divorce proceedings. Based upon the review, she advised James that she did not believe a malpractice action against Brown would be successful. James relayed the assessment to Zhang and advised that he would not pursue a legal malpractice claim against Brown. James also explained, however, that Zhang was free to obtain another opinion from a different attorney.

         [¶4.] Zhang was interested in a second opinion, and James referred him to Minneapolis attorney Dan Rasmus. Zhang retained Rasmus, who was admitted pro hac vice on July 9, 2013, with James serving as local counsel. Rasmus commenced a malpractice suit against Brown, and the case was eventually assigned to Retired Circuit Judge Gene Paul Kean.

         [¶5.] For reasons not relevant to this appeal, Rasmus and James sought Judge Kean's recusal from the case. They were not successful, however, and told Zhang it was in his interest to have a different law firm represent him. Zhang agreed and retained William R. Skolnick and Amy Joyce of the law firm Skolnick & Shiff, P.A. (Skolnick), also of Minneapolis. Zhang and Skolnick signed a retainer agreement that specifically acknowledged the pendency of the South Dakota malpractice action against Brown. In fact, Skolnick contacted the court and opposing counsel in South Dakota several times to advise of its representation and to reschedule a hearing. The court eventually allowed Rasmus and James to withdraw.

         [¶6.] Skolnick later reviewed the file in greater detail and told Zhang that the firm did not find any evidence that Brown had committed malpractice. Skolnick advised Zhang to dismiss the lawsuit since Brown had moved for sanctions, and he could be found responsible for Brown's attorney fees if she prevailed. Skolnick advised the court in an email that it would not be representing Zhang, citing an inability to arrange for local counsel. Zhang voluntarily dismissed his malpractice lawsuit against Brown on October 31, 2013.

         [¶7.] Acting pro se, Zhang then commenced the present action against James, Rasmus, and Skolnick (Appellees), alleging malpractice based upon their collective work on the Brown malpractice claim. Zhang specifically alleged breach of contract, negligence, "incompetent legal representation," and legal malpractice against the Appellees. In its answer, Skolnick affirmatively asserted that the circuit court lacked personal jurisdiction over it and that Zhang had failed to commence the lawsuit within the statute of limitations.

         [¶8.] Zhang captioned his complaint as "Complaint and Jury & Interpreter Demand," but the contents of the complaint did not contain a demand for a jury trial or an interpreter.[1] Zhang moved to continue a May 2017 hearing until October 6, 2017, stating he had previously filed a request for an interpreter and had tried to work with the court and the opposing parties to get an interpreter. In his amended notice of hearing, Zhang noted that he had not yet resolved the interpreter issue.

         [¶9.] On May 23, 2017, Zhang sent a letter to the circuit court requesting approval of Minnesota interpreter Dongfu Zhou, indicating the court administrator had not approved his request for an interpreter for the May 2017 hearing. The court addressed Zhang's interpreter concerns at the May hearing and explained that it is a party's responsibility in a civil case to arrange for an interpreter and to seek the court's approval. The court instructed Zhang to file a motion to allow the court to assess the interpreter's qualifications.

         [¶10.] Zhang moved for an order approving Zhou to act as his interpreter, and the court granted the motion during the October 6, 2017 hearing. Zhou, however, was not present, and Zhang expressed disappointment that he was not able to utilize an interpreter immediately at that hearing. The court advised that a hearing was necessary to consider Zhang's motion, and the interpreter could be used during subsequent hearings. Zhou was, in fact, present at the next motions hearing.

         [¶11.] The circuit court's scheduling order required Zhang to disclose his experts by October 2, 2017. Zhang filed an affidavit on the deadline, in which he stated he had "enough written evidence to prove his case[.]" He further stated that the facts and "evidence to be presented at trial will show the acts and omissions so clearly that a layman could reasonably conclude that they were negligent without the aid of expert testimony."

         [¶12.] Zhang also moved to amend and supplement his complaint to add claims for "malice," breach of fiduciary duty, deceit and fraud, withholding trust funds, and "continued malice." The court denied Zhang's motion, stating the matter was "significantly along," and finding Zhang did not explain why he was unable to make these claims in the original complaint.

         [¶13.] Skolnick moved to dismiss Zhang's malpractice claim, arguing the circuit court lacked personal jurisdiction. See SDCL 15-6-12(b). Alternatively, Skolnick moved for summary judgment, alleging Zhang's lawsuit was time-barred and also that there was insufficient evidence to support a legal malpractice claim against Brown. The court granted Skolnick's motion to dismiss, finding it lacked personal jurisdiction due to insufficient minimum contacts in South Dakota. The court did not initially address Skolnick's alternative motion for summary judgment.

         [¶14.] Zhang moved to reconsider Skolnick's dismissal. In its brief in opposition, Skolnick asked the court to grant its prior summary judgment motion if the court now found it had personal jurisdiction. Skolnick also joined Rasmus' separate summary judgment motion based upon Zhang's failure to disclose an expert witness. The court denied Zhang's motion for reconsideration and alternatively granted Skolnick's motion for summary judgment based on statute of limitations and the absence of a legal duty. The court also granted summary judgment to Skolnick and Rasmus due to Zhang's failure to disclose an expert witness, concluding it was fatal to his malpractice claim.

         [¶15.] James moved for summary judgment as well, claiming the transfer of representation to Skolnick removed any duty he owed to Zhang. The circuit ...


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