Wartnick v. Moss & Barnett

• Decision Date: 02 October 1992
• Docket Number: No. C6-91-564,C6-91-564
• Citation: 490 N.W.2d 108
• Parties: Norman WARTNICK, Petitioner, Appellant, v. MOSS & BARNETT, et al., Respondents.
• Court: Minnesota Supreme Court

Page 108

490 N.W.2d 108

Norman WARTNICK, Petitioner, Appellant, v. MOSS & BARNETT, et al., Respondents.

No. C6-91-564.

Supreme Court of Minnesota.

Oct. 2, 1992.

Rehearing Denied Dec. 9, 1992.

Syllabus by the Court

1. The amendment of a statute, creating a new cause of action, is a superseding cause, and therefore an attorney's allegedly negligent advice was not the proximate cause of the client's damages suffered as a result of a special verdict in the new cause of action.

2. The presentation of conflicting expert testimony regarding whether an attorney's actions met the appropriate standard of care raises questions of material fact, making summary judgment inappropriate.

Jerry W. Snider, Steven L. Severson, Faegre & Benson, and Joseph S. Friedberg, Minneapolis, for appellant.

John M. Mason, Peggy L. Hicks, Dorsey & Whitney, Minneapolis, for respondents.

Heard, considered and decided by the court en banc.

GARDEBRING, Justice.

This case arises out of a malpractice action filed by Norman Wartnick against his attorney Phillip Gainsley and Gainsley's law firm Moss & Barnett. After Norman Wartnick's former employee and recent competitor Robert Nachtsheim, Sr. (the decedent) was murdered in May 1973, Wartnick retained Gainsley as counsel during the police investigation. Gainsley also advised and assisted Wartnick in recovering the proceeds of a life insurance policy Wartnick's company, Midwest Florist Supply Company (Midwest), had held on the decedent. Gainsley continued to represent Wartnick after Betty Nachtsheim (Nachtsheim), the decedent's widow, sued Wartnick and Midwest for unjust enrichment. Nachtsheim's suit was later consolidated with a wrongful death suit against Wartnick alone.

Gainsley represented Wartnick at the trial of the consolidated actions, in which the jury awarded Nachtsheim $350,000 in damages and $2,000,000 in punitive damages on the wrongful death action. The unjust enrichment action was dismissed. Gainsley also represented Wartnick in his appeal to the court of appeals in which the jury's verdict was affirmed.

In January 1988, Wartnick filed this malpractice action against Gainsley, charging Gainsley with several counts of malpractice. In two separate summary judgment proceedings, all the counts were dismissed. Wartnick appealed, and the court of appeals affirmed in Wartnick v. Moss & Barnett, 476 N.W.2d 166 (Minn.App.1991). This appeal followed.

The underlying facts of this matter are as follows: Norman Wartnick was a shareholder and officer of Midwest, where the decedent was a salesperson between 1959 and 1972. In 1970, Wartnick purchased from Prudential Life Insurance Company (Prudential) a $100,000 "key man" life insurance policy on the decedent's life, with Midwest as the named beneficiary. The decedent left Midwest's employ in August 1972, and started a competing business. On May 11, 1973, Wartnick paid the annual life insurance premium on the policy to keep it in effect, despite the fact that the decedent was no longer an employee of Midwest. On May 24, 1973, the decedent was shot in the head at close range, shortly after he arrived for work. No one was ever charged with the murder.

After the decedent's death, Wartnick retained Gainsley to represent him and Midwest in connection with the claim for the life insurance proceeds. Gainsley also represented Wartnick in the on-going police investigation of the murder, advising him not to take a lie detector test, and recommending that Wartnick hire a criminal lawyer to assist Gainsley. Prudential also investigated the murder and, after receiving notice that the Hennepin County Attorney's office would not be indicting Wartnick paid the life insurance policy proceeds to Midwest.

Nachtsheim hired an attorney to represent her in a suit to obtain the insurance proceeds from Wartnick and Midwest. She also wanted to sue Wartnick for wrongful death, because she believed that her husband had been killed for the insurance proceeds. Her attorney was reluctant to bring a suit for wrongful death with so little evidence, and inadvertently let the wrongful death statute of limitations expire before bringing suit. The attorney did, however, file a claim for unjust enrichment against Wartnick and Midwest in 1976.

During the discovery period of this civil suit, Wartnick was deposed. Gainsley and Wartnick have different accounts of the preparation and decisionmaking that took place prior to the deposition. Gainsley asserts that he researched the ramifications of having Wartnick plead the fifth amendment in response to any questions about the murder of the decedent. Gainsley also reports discussing the issue with other lawyers at his firm, and discussing it with Wartnick in "numerous phone conversations," and at a meeting several days before the deposition. Gainsley asserts that Wartnick made an informed decision to take Gainsley's advice and plead the fifth.

Wartnick does not remember meeting with Gainsley prior to the deposition, or receiving any information about the possible negative consequences of pleading the fifth. The only meeting or conversation he remembers regarding the decision to plead the fifth was a meeting in the men's room immediately prior to the deposition. There, according to Wartnick, Gainsley advised him to respond to any questions about the decedent's murder by asserting his fifth amendment privilege against self-incrimination. He gave Wartnick a card to read at the appropriate times. Wartnick followed Gainsley's advice.

Furnished with Wartnick's unresponsive answers in the deposition ¹, Nachtsheim's attorney proceeded to lobby the legislature to amend the wrongful death statute to remove any limitations period for actions to recover damages for "a death caused by an intentional act constituting murder." The attorney drafted and promoted this change as a victim's rights bill. After two unsuccessful attempts, and continued lobbying by the attorney, the bill passed. The amendment applied to "any death or cause of action arising prior to its enactment which resulted from an intentional act constituting murder." 1983 Minn.Laws c. 347 § 3 subd. 4.

No longer barred by the statute of limitations, Nachtsheim promptly brought a wrongful death action against Wartnick. The unjust enrichment and wrongful death actions were consolidated by stipulation. Prudential, a party in the unjust enrichment suit, settled with Nachtsheim prior to trial. While preparing for the case, Gainsley offered Wartnick for another deposition if opposing counsel would agree not to use the first one. Nachtsheim's attorney refused. Gainsley relied principally on the police file and a deposition of Nachtsheim to gather information about the decedent's murder and construct a defense.

In his opening arguments at trial, Gainsley revealed that although Wartnick had been asked to take a polygraph examination regarding the murder, and was willing, Gainsley had advised against it. Because of his lack of an independent investigation and his reliance on the police reports, during the trial Gainsley had some difficulty getting information into the record. Wartnick's responses in the deposition were read to the jury, and Wartnick testified at the trial. After being instructed that it could draw an adverse inference from Wartnick's fifth amendment assertions in the deposition, the jury found Wartnick had murdered or caused the murder of the decedent. However, the unjust enrichment claim was dismissed because the jury found for Midwest.

In his action against Gainsley, Wartnick asserts five counts of malpractice. These counts, as summarized in Wartnick's brief, are:

1) Instructing Wartnick to assert the Fifth Amendment privilege at his deposition without understanding the legal ramifications of that instruction;

2) Failing to permit Wartnick to make his own informed decision whether to assert the Fifth Amendment privilege;

3) Injecting inadmissible and highly prejudicial evidence into the trial by advising the jury in opening statement that Wartnick had refused to take a polygraph test when requested to do so by the police lieutenant investigating the Nachtsheim murder;

4) Failing to conduct a minimum adequate investigation into the Nachtsheim murder, including failing to interview and depose key witnesses and suspects in the murder;

5) Failing to mitigate the damage caused by his Fifth Amendment instruction by not offering Wartnick unconditionally for a second deposition * * *.

In support of his motion for summary judgment, Gainsley provided deposition testimony of two experts. One of them testified regarding all five malpractice counts, concluding that Gainsley's actions in representing Wartnick were not negligent. The other testified regarding Gainsley's introduction of the polygraph issue in the opening statement, stating that raising the issue himself was in accord with good trial practice. Wartnick provided deposition testimony of five experts, all of whom testified regarding the fifth amendment and polygraph issues, and all of whom believe that Gainsley's actions were negligent. Four of Wartnick's five experts testified on the failure to investigate and failure to mitigate counts, believing that Gainsley's conduct was negligent.

The role of this court in reviewing a trial court's grant of summary judgment is to determine whether there are any genuine issues of material fact and whether the trial court erred in its application of the law. Offerdahl v. Univ. of Minnesota Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn.1988). In making this determination, the evidence must be viewed in a light most favorable to Wartnick, the party against whom summary judgment was granted. See Grondahl v. Bulluck, 318 N.W.2d 240, 242 (Minn.1982). Any doubts as to whether an issue of material fact exists should also be resolved in favor of Wartnick. See Rathbun v. W.T. Grant Co., 300 Minn. 223, 230, 219 N.W.2d 641, 646 (1974).

Wartnick claims that but for Gainsley's...