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MARY ANN FORD,
Plaintiff and Appellant,
v.
ROBERT MOORE

and Moore & Kandaras, Attorneys at Law,
Defendants and Appellees.

South Dakota Supreme Court
Appeal from the Seventh Judicial Circuit, Pennington County, SD
Hon. Patrick J. McKeever, Judge
#19291 -- Reversed

Rick Johnson, Johnson, Eklund, Nicholson & Dougherty, Gregory, SD
Attorneys for Appellant.

Michael J. Schaffer, Davenport, Evans, Hurwitz & Smith, Sioux Falls, SD
Attorneys for Appellees.

Argued on March 13, 1996; Opinion Filed Sep 4, 1996


KONENKAMP, Justice.
[¶1] Mary Ann Ford sued her former attorney claiming he negligently omitted filing her federal tort claim within the two-year statute of limitations, and alternatively, the lawsuit he brought in state court was defective. The circuit court granted summary judgment for the attorney. We reverse.

FACTS
[¶2] On December 15, 1989, Ford was injured while a passenger in a vehicle driven by Molly Ann Lafferty, an employee of the Community Health Representative Program (CHRP) in Rapid City. Lafferty was driving Ford to a medical appointment under a health service contract between the United States of America, acting through the Indian Health Service (IHS), and the Rapid City Indian Health Advisory Board (Board). The contract required the Board to administer the CHRP for Native Americans, which included transporting individuals needing medical services.
[¶3] Ford first hired another lawyer to pursue her claim, but after becoming dissatisfied, employed attorney Robert Moore to represent her on June 17, 1991. The next day Moore's legal assistant sent him a memo stating, "[u]nless I have read the statute completely wrong, Ms. Ford has two years to file a FTCA [Federal Tort Claims Act] claim, or six months after receiving final denial of administrative relief on her claim." A note at the bottom of the memo warned: "statute runs 12-15-91." Moore nonetheless concluded Ford had no FTCA case. Following unsuccessful settlement negotiations, Moore brought suit on Ford's behalf against Lafferty and the CHRP in Pennington County Circuit Court on December 14, 1992. Distressed with the progress of her case, Ford replaced Moore with a different attorney on January 8, 1993.
[¶4] Lafferty and the CHRP moved for summary judgment contending the circuit court lacked subject matter jurisdiction. They argued the CHRP contract was authorized under the Indian Self-Determination and Education Assistance Act, 25 USC 450 et seq (ISDEAA), and because the federal government waived its sovereign immunity in contracts under this Act, jurisdiction belonged exclusively in federal court under the FTCA. Ford did not resist the motion, and the court granted summary judgment in favor of the CHRP and Lafferty, holding the state court lacked subject matter jurisdiction. After the order was entered on April 11, 1994, Ford did not appeal. By then the two-year statute of limitations for bringing a claim under the FTCA had long expired.
[¶5] Ford then retained her current attorney, who brought this legal malpractice action against Moore on September 26, 1994. Her complaint averred Moore was negligent in failing to file a federal tort claim within the two-year statutory period and alternatively, in bringing an invalid state action, due to insufficiency of process. Moore answered, denying negligence and asserting the underlying action was properly commenced in state court. He moved for summary judgment on the basis the CHRP contract was not a self

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