(concurring in part and dissenting in part).
I agree with the majority’s holding on jurisdiction. Moeller presents three arguments in his effort to succeed on his claim for damages. First, Moeller asserts that he was required to prove the invalidity of his conviction before bringing a claims action. Second, he argues that the doctrine of collateral estoppel prevented his claims action at any time before his conviction was removed. Third, Moeller presents a continuing tort theory for staying the statute until his conviction was held invalid.
Moeller’s three arguments are basically the same. He argues that in order to succeed in his claim for damages, he was first required to prove that the 1975 conviction was invalid. I agree, but note that nothing prohibited Moeller from bringing a claim based on his invalid conviction and damage action together.1 In doing so, Moeller would have avoided the issue of collateral estoppel which prohibits relitigating issues that could have been raised previously. Black Hills Jewelry Mfg. v. Felco Jewel Ind., 336 N.W.2d 153 (S.D.1983).
Moeller cites Dees v. Murphy, 794 F.2d 1543, 1545 (11th Cir.1986), wherein the court held that Dees, a federal prisoner, could not bring a civil rights action (42 U.S.C. § 1983) until he had first exhausted federal habeas corpus remedies. On the two occasions that Moeller attempted habe-as relief he was precluded from reaching any issues due to a moot claim. (He was not restrained or incarcerated.) Moeller I and II. In Moeller’s first two appeals, his singular goal, using the writ of habeas corpus, was to have the 1975 grand larceny conviction held null and void. On both occasions, habeas relief was inappropriate.
In Moeller’s application for writ of habe-as corpus in July of 1985, Moeller II, he urged the habeas court to adopt the law of the case doctrine based on the holding in Moeller I. The doctrine requires that a decision on a former appeal be followed in any subsequent proceedings unless newly discovered evidence exists which is substantially different. See First Western Bank v. Live Stock Yards Co., 466 N.W.2d 853 (S.D.1991); Western States Land & Cattle Co. v. Lexington Ins. Co., 459 N.W.2d 429 (S.D.1990); Shaffer v. Honeywell, Inc., 249 N.W.2d 251 (S.D.1974). Moeller argued in Moeller I that he had new evidence which addressed “the vital issue” that no transfer hearing was held in accordance with SDCL 26-11-4 and that such new knowledge, published as fact in Moeller I should be judicially noticed under the doctrine. In his legal memorandum in support of his second application for writ of habeas corpus he wrote:
Clearly the effects of the invalid conviction ... warrant review [through habeas corpus]....
Even though ten years have elapsed since the questioned conviction, [Moeller] can show that his application is one of a colorable claim of innocence and demonstrate that a significant miscarriage of justice has occurred and further show that his claim is based on ground which he couldn’t have had knowledge by the exercise of reasonable diligence and could not have discovered earlier.
In State v. St. Cloud, 465 N.W.2d 177, 179 (S.D.1991), this court affirmed that “ ‘[one] who has taken a position in a judicial proceeding may not later take a position inconsistent with his earlier position.’ ” (Brackets in original.) See Federal Land Bank of Omaha v. Johnson, 446 N.W.2d 446, 447 (S.D.1989). Although I would not decide this case on the basis of “judicial estoppel” as recognized in St. Cloud, I find Moeller’s awareness of his constitutional injury in 1985 determinative for purposes of SDCL 21-32-2. Moeller knew or should have known his damage claim arose at that *734time. See Deutz & Crow Co., Inc. v. State, 466 N.W.2d 631 (S.D.1991).
Moeller asserts the theory that he suffered a continuing tort2 so long as his conviction remained in existence, and the cause of action commenced only when “the wrong terminated.” Citing Tripplet v. Azordegan, 478 F.Supp. 872 (N.D.Iowa, W.D.1977), Moeller argues that each day he was deprived of his constitutional rights constituted a new violation. The wrong Moeller suffered was a due process violation of his transfer to adult court in 1975. The question is not whether there has been a termination of a wrong, but whether there has been a determination that the wrong existed. Even with the benefit of a discovery rule, our decision in Moeller I was handed down on February 27, 1985, and this is the last possible discovery date that Moeller had available for purposes of SDCL 21-32-2.
Although hindsight has given us an advantageous view on the statute of limitations question, Moeller’s legal strategy in light of his damage claim was not timely. Moeller could have brought a corum nobis at any time after his 1975 conviction or Moeller could have contested the use of the conviction in any subsequent habitual proceeding because an invalid conviction may not be used to support a supplemental information for habitual offender status. See Application of Garritsen, 376 N.W.2d 575 (S.D.1985). Moeller could have brought a claims action any time after his release from incarceration in 1975. This leads me to the long-held principle that ignorance of legal rights does not toll a statute of limitations. Larson v. American Wheel and Brake, Inc., 610 F.2d 506 (8th Cir.1979).
Whether this court applies the occurrence or the discovery rule, the record clearly reflects that Moeller was aware of the defect in his transfer hearing at least as early as 1985, but chose to sit idly by for four years before commencing this action. The mere fact that his conviction remained on the books should not exonerate Moeller from his inertness.
Commissioners grant of summary judgment should be affirmed as to Issue I.
. In Allen v. McCurry, 449 U.S. 90, 95, 101 S.Ct. 411, 415, 66 L.Ed.2d 308, 313 (1980), the United States Supreme Court held that where a party has not had a “full and fair opportunity" to contest or litigate a decision in an earlier case being pled as a bar to his present claim that the doctrines of res judicata and collateral estoppel could not be relied on to preclude relitigation of the prior decision. In this case, Moeller did not appeal his 1975 conviction, so there has been no ruling on the validity of his transfer to adult court in the 1975 proceeding.
. A continuing tort is based on continued unlawful acts and not on continuing ill effects from the original unlawful act. Collins v. United Airlines, Inc., 514 F.2d 594 (9th Cir.1975).