Antone v. Mirviss, No. A04-1367.

• Decision Date: 12 April 2005
• Docket Number: No. A04-1367.
• Citation: 694 N.W.2d 564
• Parties: Richard ANTONE, Appellant, v. Israel MIRVISS, Respondent.
• Court: Minnesota Court of Appeals

694 N.W.2d 564

Richard ANTONE, Appellant, v. Israel MIRVISS, Respondent.

No. A04-1367.

Court of Appeals of Minnesota.

April 12, 2005.

Jeffrey A. Olson, Jeffrey A. Olson, PLLC, Edina, MN, for appellant.

Edward F. Rooney, Minneapolis, MN, for respondent.

Considered and decided by SHUMAKER, Presiding Judge; DIETZEN, Judge; and CRIPPEN, Judge.¹

OPINION

GORDON W. SHUMAKER, Judge.

Appellant-client appeals the district court's dismissal of his legal malpractice action against respondent-attorney, contending that the district court erred when it held that the statute of limitations began to run when appellant and his former spouse got married in reliance on an antenuptial agreement respondent prepared and that appellant's action was commenced after the limitations period expired.

FACTS

This is a legal malpractice action in which appellant Richard Antone claims he sustained damages because his attorney, respondent Israel Mirviss, improperly drafted an antenuptial agreement that Antone and his former spouse entered. The district court ruled that the statute of limitations had expired before Antone commenced suit and granted Mirviss's motion to dismiss the action. Antone contends the district court erred as a matter of law.

As Antone prepared to marry for a second time, he consulted attorney Mirviss about how he might prevent his spouse from obtaining certain of his assets if he died or if the parties dissolved their marriage. Antone alleges that Mirviss advised that an antenuptial agreement would be the proper protective instrument and that Mirviss promised to draft an agreement "so that, in the event of marriage dissolution, Antone's fiancee would not benefit from any appreciation that occurred relative to Antone's premarital assets/properties."

Mirviss drafted an antenuptial agreement that both parties signed after consulting with their respective attorneys. The agreement disclosed the parties' assets and provided for a limitation on spousal maintenance in the event of a marriage dissolution, but it was silent as to property rights upon dissolution.

The parties married on December 21, 1986, one day after they signed the antenuptial agreement. Antone commenced a marriage dissolution proceeding nearly 12 years later, on September 25, 1998. He alleges that during the pendency of the dissolution he discovered for the first time that the antenuptial agreement did not address the division of the parties' assets and did not prevent his spouse from obtaining assets that Mirviss allegedly promised to protect.

On November 9, 2000, the district court entered judgment of dissolution, ruling that the antenuptial agreement did not affect the court's authority to order a property division that would include assets Antone alleged were to have been covered by the agreement. Nevertheless, the district court awarded all of the appreciated value of such assets to Antone. Ultimately, the supreme court remanded the issue to the district court, stating: "We hold as a matter of law that a portion of the market-related appreciation during the marriage is marital property." Antone v. Antone, 645 N.W.2d 96, 103 (Minn.2002). The supreme court's directive to the district court on remand was to determine the portion of the appreciated value Antone's former spouse was entitled to receive. The district court entered its amended judgment awarding a portion of that value on January 3, 2003.

Premised on theories of negligence, breach of fiduciary duty, and breach of contract, Antone started this action against Mirviss on September 11, 2003. Mirviss moved to dismiss the suit, arguing that the statute of limitations had expired before September 11, 2003. The district court agreed; ruled that the statute began to run on the date the parties married, about 16 years before Antone started the lawsuit; and granted the motion to dismiss. Antone appealed.

ISSUE

Appellant alleges that he retained respondent attorney to prepare an antenuptial agreement to prevent his spouse from obtaining certain assets in the event of a marriage dissolution. He alleges that respondent failed to prepare a proper agreement and that his spouse obtained a portion of such property in an award 16 years after the date of the marriage. Appellant started suit after the award.

Did the district court err by ruling that the statute of limitations began to run on the date of the marriage, and, thus, the legal malpractice action is time-barred?

ANALYSIS

Standard of Review

So that we can apply the correct standard of review, we first address the procedural posture of the case. Citing the statute of limitations but not citing any rule of civil procedure, Mirviss moved to dismiss the action. Antone's response treated the motion as one for summary judgment under Minn. R. Civ. P. 56. The district court based its order dismissing the action on Minn. R. Civ. P. 12.02(e), failure to state a claim on which relief can be granted.

Minn. R. Civ. P. 12.02(a)-(f) provides that if, on a motion based on a 12.02(e) defense, "matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56...." Both parties submitted various affidavits and other "matters outside the pleading[s]," and the district court did not exclude any of the exhibits. Therefore, the district court's dismissal was a summary judgment in favor of Mirviss under Minn. R. Civ. P. 56. Accordingly, the correct standard of review is that applicable to a summary judgment. In an appeal from summary judgment, the appellate court determines whether there is a genuine issue of material fact for trial and whether the district court erred in its interpretation or application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990)

.

Statute of Limitations Trigger

The sole question on appeal is this: "What event triggers the legal malpractice statute of limitations when the allegation is that the attorney improperly prepared an antenuptial agreement?" As to this question, the parties raise no genuine issue of material fact. When material facts are not in dispute, the question of when a statute of limitations begins to run is one of law, which this court reviews de novo. Ryan v. ITT Life Ins. Corp., 450 N.W.2d 126, 128 (Minn.1990).

Under Minn.Stat. § 541.05, subd. (1) (1998), the period of limitation within which a legal malpractice lawsuit must be started is six years. However, the statute is silent as to when that period begins to run. Here, possible triggering dates are the respective dates of the execution of the antenuptial agreement, the marriage, the commencement of the dissolution, the original district court judgment, the appellate court decisions, or the entry of the district court's amended judgment. The parties agree (1) that the statute of limitations begins to run when the legal malpractice cause of action accrues, and (2) that the cause of action is deemed to have accrued when it is able to survive a motion to dismiss for failure to state a claim on which relief may be granted. Herrmann v. McMenomy & Severson, 590 N.W.2d 641, 643 (Minn.1999). The parties also agree that the statute begins to run "after damage occurs, even though the ultimate damage is unknown or unpredictable." Sabes & Richman, Inc. v. Muenzer, 431 N.W.2d 916, 918 (Minn.App.1988).

Mirviss argues that Antone suffered "some damage" when he and his spouse signed the antenuptial agreement and married because Antone then lost the right to prevent his spouse from claiming and obtaining an interest in the assets in question if the parties eventually dissolved their marriage.

To survive a motion to dismiss a legal malpractice action, a plaintiff must allege sufficient facts to show "(1) the existence of an attorney-client relationship; (2) acts constituting negligence or breach of contract; (3) that such acts were the proximate cause of the plaintiff's damages; and (4) that but for defendant's conduct the plaintiff would have been successful in the prosecution or defense of the action." Blue Water Corp. v. O'Toole, 336 N.W.2d 279, 281 (Minn.1983). Here, Antone's lawsuit would survive a motion to dismiss if he alleged that, but for Mirviss's negligence and breach of contract, he would not have lost any portion of the appreciated value of the assets in question.

The "damages" element in the context of this action is the loss of some appreciated value. Antone's claim accrued at the point it was "possible on any evidence which might be produced, consistent with the pleader's theory, to grant the relief demanded." Martens v. Minn. Mining & Mfg. Co., 616 N.W.2d 732, 739-40 (Minn.2000) (quoting N. States Power Co. v. Franklin, 265 Minn. 391, 395, 122 N.W.2d 26, 29 (1963)) (emphasis added). Stated conversely, if it was not "possible on any evidence which might be produced, consistent with the pleader's theory, to grant the relief demanded," the claim will be dismissed. Id. The relief Antone demands in this action is money damages for his loss of appreciated value in the marriage dissolution. Thus, Mirviss's argument that Antone sustained "some damage" in the form of the loss of a right is tenable only if that loss of a right was ascertainable as money damages. It was not. Had Antone sued Mirviss at any time before it would have been possible to grant money damages consistent with evidence supporting Antone's theories of negligence or breach of contract, his lawsuit would have been dismissed for failure to state a claim upon which the relief he sought could have been granted.

At the time Antone and his former spouse solemnized their marriage, partly in reliance on the antenuptial agreement, damages for the allegedly faulty agreement were both contingent and unascertainable. They were contingent, by the terms of the very agreement now challenged, on an eventual marriage dissolution. They were contingent on the occurrence of an appreciation in...