Fontaine v. Steen, No. A07-2327.
| Decision Date | 27 January 2009 |
| Docket Number | No. A07-2327. |
| Citation | 759 N.W.2d 672 |
| Parties | Lady Jayne FONTAINE f/k/a Jayne Fraser, Appellant, v. Geraldine Carlen STEEN, et al., Respondents. |
| Court | Minnesota Court of Appeals |
Considered and decided by MINGE, Presiding Judge; SCHELLHAS, Judge; and JOHNSON, Judge.
Appellant challenges the district court's grant of summary judgment and dismissal of her legal-malpractice claim against respondents and the district court's judgment in favor of respondents on their counterclaim for unpaid legal services. We affirm.
James Fraser initiated a marriage dissolution action against appellant Lady Jayne Fontaine (f/k/a Jayne Fraser) in 2000, and appellant hired respondents Geraldine Carlen Steen and the Beckman & Steen Law Firm to represent her. James Fraser's father, Gerald Fraser, had financed the marital home pursuant to a purported contract for deed. During the dissolution proceeding, Gerald Fraser served a notice of cancellation of the contract for deed. On October 9, 2000, respondent Steen, on appellant's behalf, moved the district court to join Gerald Fraser as a third-party respondent in the divorce action and to enjoin him from canceling the contract for deed. At a November 13, 2000 hearing, the district court granted the motion and enjoined Gerald Fraser from canceling the contract for deed.
During the November 13 hearing, appellant alleges that she told respondent Steen that she had accumulated sufficient funds and was able to pay the outstanding arrears owed to Gerald Fraser on the contract for deed but that respondent Steen ignored her and "[gave] me a look that indicated to me that I should not talk to her while she was before the Judge." Respondent Steen denies that appellant ever told her that she was prepared to cure the default and observes that, even if she had, because James Fraser was under a district court order to make the payments to his father on the home pending completion of the dissolution proceeding, it was tactically not advisable for appellant to cure the default in the midst of the dissolution proceeding.
In the afternoon of November 22, 2000, the day before Thanksgiving, Gerald Fraser's attorney sent a settlement offer via fax and U.S. Mail to respondent Steen's office. The offer did not state that it would expire or be withdrawn unless accepted by a certain time. On Friday, November 24, 2000, Gerald Fraser's attorney sent a letter withdrawing the offer via fax and U.S. Mail. According to respondent Steen, she did not see either communication until Monday, November 27, 2000, because she was out of the office at appointments on Wednesday afternoon and her office was then closed until Monday due to the Thanksgiving holiday. Respondent Steen states that, upon receiving the letters, she forwarded them to appellant and notes that, in a deposition, appellant admitted that she "may have" received the letters. Appellant asserts that the settlement offer was never communicated to her.
Respondents represented appellant until approximately the end of January 2001, at which time appellant retained new legal counsel for both the dissolution proceeding and the controversy with Gerald Fraser over the default on financing the home. On January 30, 2001, the district court agreed to reconsider its November 13 joinder and temporary-injunction decisions. On March 30, 2001, the district court reversed itself on these matters.
Appellant sought review of those district court decisions. Ultimately, this court affirmed. We determined that the district court correctly ruled that it did not have authority to make Gerald Fraser a party to the marriage dissolution action for the purpose of enjoining him from canceling the contract for deed. But we remanded because we concluded that appellant was entitled to judicial review of her claim and that the contract for deed was actually an equitable mortgage that required foreclosure. Fraser v. Fraser, 642 N.W.2d 34, 40 (Minn.App.2002).
Appellant commenced this lawsuit in May 2006, alleging that the following conduct constituted legal malpractice: (1) attempting to join Gerald Fraser in the dissolution proceeding instead of filing a separate action; (2) disregarding appellant's willingness to pay Gerald Fraser the arrears on the contract for deed on the home; and (3) failing to promptly communicate Gerald Fraser's November 22, 2000 settlement offer. She claimed that, because of this malpractice, she incurred approximately $90,000 in litigation expenses. Appellant's pleading did not include an affidavit of expert review or an allegation that an expert was not necessary. Respondents denied appellant's allegations, counterclaimed for payment of outstanding legal bills, demanded that appellant comply with the expert disclosure requirements stated in Minn.Stat. § 544.42 (2006), and warned that, by statute, failure to comply with the expert-witness requirements could result in dismissal of appellant's action with prejudice. Despite the demand and warning regarding the expert, appellant still did not provide a timely affidavit of expert review, provide a list of experts who would testify at trial, or seek a waiver or modification of the requirements.
Both parties moved for summary judgment. The memorandum supporting appellant's motion addressed only the joinder issue; there was no mention of malpractice incident to her two settlement-related claims. Respondents addressed all three claims of malpractice in the memorandum supporting their motion, arguing that expert testimony was necessary to establish each claim and that failure to comply with expert-disclosure requirements required dismissal of appellant's lawsuit. Appellant replied to respondents' memorandum and argued that, because the court of appeals deemed the joinder of Gerald Fraser to be improper, an expert witness was not necessary to determine that it was malpractice. Appellant did not address why her two settlement-related bases for malpractice should be permitted to proceed without expert testimony. The district court granted respondents' motion and denied appellant's motion, holding that appellant's failure to provide an expert-review affidavit and an expert-identification affidavit to support her case required dismissal with prejudice.1
Respondents' counterclaim for unpaid legal fees proceeded to a bench trial. The district court found that appellant's failure to pay respondents' legal fees was a breach of contract, found that respondents established by a preponderance of the evidence that they were owed $6,953.85 for their services, and ordered judgment for respondents for that amount plus costs and the expense of collection. This appeal follows.
a prima facie case of legal malpractice without expert testimony?
The first issue is whether the district court erred when it determined that appellant could not establish a prima facie case of legal malpractice without expert testimony. On an appeal from summary judgment, if there are no genuine issues of material fact, this court asks only whether the district court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). Generally, whether a medical-malpractice claim requires expert testimony to establish a prima facie case is a question of law reviewed de novo on appeal. Tousignant v. St. Louis County, 615 N.W.2d 53, 58 (Minn. 2000). Although Tousignant does not explicitly refer to legal-malpractice actions, legal-malpractice actions are governed by a statute with provisions for expert review and witnesses that are nearly identical to expert-review provisions of the statute regarding medical malpractice. Compare Minn.Stat. § 544.42 with Minn.Stat. § 145.682 (2008). We have previously noted the similarity in professional malpractice proceedings. See Middle River-Snake River Watershed Dist. v. Dennis Drewes, Inc., 692 N.W.2d 87, 91 (Minn. App.2005) (); see also House v. Kelbel, 105 F.Supp.2d 1045, 1051 (D.Minn.2000) (). We conclude the same de novo review should be used in evaluating the need for an expert in legal-malpractice proceedings.
In reviewing the grant of summary judgment, this court considers factual questions in a light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn.1993). Nonetheless, a party must resist summary judgment by presenting more than mere assertions. DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). This court will generally not consider matters not argued to and considered by the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.1988). And issues not raised or argued in appellant's brief cannot be raised in a reply brief. McIntire v. State, 458 N.W.2d 714, 717 n. 2 (Minn.App.1990), review denied (Minn. Sept. 28, 1990).
The statute governing professional, nonmedical malpractice actions requires that in cases "where expert testimony is to be used ... to establish a prima facie case," a plaintiff serve two expert-witness disclosure affidavits on an adverse party. Minn. Stat. § 544.42, subd. 2. The first, an affidavit of expert review, must establish that an expert reviewed the case and reached the opinion that the defendant deviated from the applicable standard of care and that conduct caused plaintiff's injury. Id., subds. 2(1), 3(a)(1). The second, the...
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...section 544.42 requires a plaintiff to produce certain expert affidavits. Minn. Stat. § 544.42, subd. 2; see also Fontaine v. Steen, 759 N.W.2d672, 676 (Minn. App. 2009). If a plaintiff fails to comply with these requirements, he risks the dismissal of his legal-malpractice claim, with prej......