CONSIDERED ON BRIEFS ON NOVEMBER 12, 2018
FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT BROWN
COUNTY, SOUTH DAKOTA THE HONORABLE SCOTT P. MYREN Judge
ZHI GANG ZHANG Pro Se plaintiff and appellant.
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.
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 &
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
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.
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.
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.
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.
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.
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.
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. 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.
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
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
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."
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.
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.
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.
James moved for summary judgment as well, claiming the
transfer of representation to Skolnick removed any duty he
owed to Zhang. The circuit ...