Guzick v. Kimball
| Decision Date | 06 October 2014 |
| Docket Number | A14-0429 |
| Parties | Timothy Guzick, as Personal Representative of the Estate of George J. Nyberg and as Trustee of the George Nyberg Trust, Appellant, v. Larry Alan Kimball, et al., Respondents, Colleen Bennett, Defendant. |
| Court | Minnesota Court of Appeals |
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2012).
Reversed and remanded
Cass County District Court
Lori J. Beck, Steven R. Peloquin, Peloquin Beck, P.A., Perham, Minnesota; and
Michael T. Feichtinger, Cally R. Kjellberg-Nelson, Quinlivan & Hughes, P.A., St. Cloud, Minnesota (for appellants)
Nicholas Ostapenko, Roy J. Christensen, Michele Miller, Johnson, Killen & Seiler, P.A., Duluth, Minnesota (for respondents)
Considered and decided by Connolly, Presiding Judge; Johnson, Judge; and Hooten, Judge.
UNPUBLISHED OPINION
Appellant challenges the district court's grant of summary judgment dismissing his legal-malpractice claim for failure to comply with the expert-disclosure requirements of Minn. Stat. § 544.42 (2012). Because appellant submitted an affidavit and subsequent interrogatory answers sufficient to satisfy the statute, we reverse and remand.
In December 2008, Tony Nyberg contacted Colleen Bennett, who was an acquaintance of Tony and a legal secretary working at attorney Larry Alan Kimball's law firm. Tony was seeking assistance to become attorney-in-fact for his mother, Geraldine Nyberg, and his elderly uncle, George Nyberg. At that time, George was 94 years old and recovering from a recent fall that fractured his neck. Using a template on the law firm's computer, Bennett drafted power-of-attorney forms for Geraldine and George naming Tony as their attorney-in-fact. The default setting for the form template, which Bennett did not alter, authorized the attorney-in-fact to transfer to himself title of the principal's property. This is the broadest possible authorization a principal may provide the attorney-in-fact. Bennett placed the forms in a file she created at the law firm and provided Tony with copies of the forms. Using the law firm's paper calendar, Bennett scheduled a phone call for Kimball to discuss George's power-of-attorney form and also scheduled an in-home appointment to deliver and execute the forms.
On December 11, 2008, Kimball met with Geraldine, Tony, and Tony's wife at his office where they discussed Geraldine's estate planning. Geraldine mentioned thatGeorge was also interested in executing a power-of-attorney form, but the meeting was focused primarily on Geraldine. At the end of that same day, Bennett took the forms from the office and met with Geraldine and George at Geraldine's home. George signed the power-of-attorney form created by Bennett, and Bennett notarized the form. Bennett did not ask George whether he understood the power-of-attorney form or whether it was tailored to meet his needs. Bennett was not sure whether the scheduled phone call regarding George's power-of-attorney form had occurred and did not recall asking Kimball about the forms before she left. Kimball did not recall reviewing George's power-of-attorney form, asking Bennett to draft the form, or talking to George at any point. Kimball Law Office generated a bill for George and Geraldine that same day. The bill was paid in July 2009.
Prior to and after George's death on January 7, 2009, Tony used the power of attorney to transfer $226,524.39 from George's bank accounts to his personal accounts. In December 2009, appellant Timothy Guzick, acting as personal representative of George's estate and trustee of George's trust, sued Tony for conversion of George's funds. The case was stayed when Tony filed for bankruptcy, but appellant was able to secure a nondischargeable judgment in the amount of $226,524.39 against Tony. In January 2012, appellant also sued Wells Fargo for breach of contract, breach of statutory duties, and negligence. Appellant's case against Wells Fargo was dismissed with prejudice in December 2012.
In February 2013, appellant initiated the current lawsuit against Kimball and Kimball Law Office, alleging legal malpractice for failing to advise George on the scopeof authorization provided by the power-of-attorney form. Appellant served an affidavit of expert review with the complaint, outlining an expert's opinion that Kimball's actions constituted legal malpractice. In May 2013, appellant amended the complaint to assert a claim of negligence against Bennett and to assert additional legal-malpractice claims against Bennett and Kimball and Undem (an alleged precursor to Kimball Law Office).
In September 2013, Kimball, Kimball Law Office, and Kimball and Undem (respondents) moved for summary judgment on the ground that appellant failed to comply with section 544.42, which requires certain pretrial expert-witness disclosures in a professional-malpractice case requiring expert testimony. In January 2014, the district court granted the motion. The district court reasoned that expert testimony is necessary to establish appellant's legal-malpractice claim, that appellant's expert disclosures were insufficient to comply with section 544.42, and that appellant was not entitled to cure deficiencies in his expert disclosures under the safe-harbor provision in section 544.42. This appeal follows.
A district court shall grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law." Minn. R. Civ. P. 56.03. "On appeal from summary judgment, we must review the record to determine whether there is any genuine issue of material fact and whether the district court erred in its application of the law." Dahlin v. Kroening, 796 N.W.2d 503, 504 (Minn. 2011).
We begin our analysis by quoting the late, great Tallulah Bankhead1: "There is less in this than meets the eye." The Yale Book of Quotations 43 (Fred R. Shapiro ed., 2006). An attorney is asked to draft a power of attorney for his elderly client. The document is drafted by a secretary. The lawyer never meets the client. Neither the lawyer nor the secretary ever discusses the ramifications of signing the document with the client. The document allows the attorney-in-fact to transfer all of the client's assets to himself. Days after the client signs the document, that is precisely what happens.
Appellant argues that the district court erred by concluding that expert testimony is required to establish all of the elements of a prima facie claim of legal malpractice. We agree.
To establish a prima facie claim of legal malpractice "not involving damage to or loss of a cause of action," the plaintiff must prove each of the following four elements: "(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." Jerry's Enters., Inc. v. Larkin, Hoffman, Daly & Lindgren, Ltd., 711 N.W.2d 811, 816, 819 (Minn. 2006).
In an action for legal malpractice in which expert testimony is required to establish any element of a prima facie case, 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 prejudice. Fontaine, 759 N.W.2d at 676; see also Minn. Stat. § 544.42, subd. 6(a)-(c). Expert testimony generally is required to establish the second, third, and fourth elements of a legal-malpractice claim. Id. at 677. Only the "rare" or "exceptional" case is capable of resolution without expert testimony. Id. But expert testimony is not necessary if "the conduct complained of can be evaluated adequately by a jury in the absence of expert testimony." Hill v. Okay Constr. Co., 312 Minn. 324, 337, 252 N.W.2d 107, 116 (1977). "[W]hether expert testimony is required depends on the nature of the question to be decided by the trier of fact and on whether technical or specialized knowledge will assist the trier of fact." Blatz v. Allina Health Sys., 622 N.W.2d 376, 388 (Minn. App. 2001) (), review denied (Minn. May 16, 2001); see also Minn. R. Evid. 702. This court reviews de novo whether expert testimony is necessary to establish a prima facie case of legal malpractice. Fontaine, 759 N.W.2d at 676.
The district court concluded that expert testimony is required to prove all four elements of appellant's malpractice claim. Appellant does not challenge the district court's conclusion with respect to the second element; appellant challenges only the district court's conclusion with respect to the first, third, and fourth elements. Accordingly, section 544.42 required appellant to make expert disclosures addressing, at a minimum, the second element of a prima facie case. Appellant's contention requires this court to determine whether expert testimony is also required to establish the first,third, or fourth elements in this case and, as a result, whether appellant was also required to make expert disclosures concerning any of these other three elements.
Appellant argues that expert testimony is not required to establish the existence of an attorney-client relationship. We agree.
To prove the existence of an attorney-client relationship, a party may rely on either a contract theory or a tort theory. Gramling v. Mem'l Blood Ctrs. of Minn., 601 N.W.2d 457, 459 (Minn. App. 1999), review denied (Minn....
To continue reading
Request your trial