Wartnick v. Moss & Barnett, C6-91-564

• Decision Date: 08 October 1991
• Docket Number: No. C6-91-564,C6-91-564
• Citation: 476 N.W.2d 166
• Parties: Norman WARTNICK, Appellant, v. MOSS & BARNETT, et al., Respondents.
• Court: Minnesota Court of Appeals

Page 166

476 N.W.2d 166

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

No. C6-91-564.

Court of Appeals of Minnesota.

Oct. 8, 1991.

Review Granted Nov. 26, 1991.

Syllabus by the Court

1. Where the limitations period for a wrongful death action has expired, a subsequent amendment to the Wrongful Death Act, which removes the limitations period for "intentional acts constituting murder," is a superseding cause which breaks the causal link between an attorney's alleged negligence and the client's damages.

2. The decision by respondent to not offer appellant unconditionally for a second deposition was a reasonable exercise of professional judgment.

3. Respondent's statement that appellant refused a polygraph test was a reasonable exercise of professional judgment.

4. Summary judgment was properly granted on appellant's failure to investigate claim because no genuine issues of material fact were presented on the issues of causation and negligence.

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

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

Considered and decided by PARKER, P.J. and FORSBERG and AMUNDSON, JJ.

OPINION

AMUNDSON, Judge.

Appellant Norman Wartnick appeals the grant of summary judgment for respondents Phillip Gainsley and Moss & Barnett on five legal malpractice claims. The malpractice claims arose out of Gainsley's representation of Wartnick in two actions--a wrongful death suit and an unjust enrichment suit--brought by Betty Nachtsheim, the widow of Robert Nachtsheim. Following a 1986 trial on the consolidated claims, the jury found Wartnick murdered or caused the murder of Robert Nachtsheim and awarded $2,350,000.00 to the Nachtsheim family. In 1988, Wartnick commenced this legal malpractice suit, alleging Gainsley negligently (1) instructed him to assert his fifth amendment privilege, (2) failed to permit him an informed decision about asserting the fifth amendment privilege, (3) failed to offer him for an unconditional second deposition, (4) mentioned during trial his refusal to take a polygraph test, and (5) failed to depose key witnesses and suspects. The trial court granted summary judgment on all claims and this appeal followed.

FACTS

On May 24, 1973, an unknown assailant shot Robert Nachtsheim shortly after he arrived at work. He died several days later. Appellant Norman Wartnick was a shareholder and officer of Nachtsheim's previous employer, Midwest Florist Supply Co. Respondent Phillip Gainsley represented Wartnick in several claims which arose from Nachtsheim's death. Gainsley's alleged negligent representation in two of these claims--an unjust enrichment claim and a wrongful death claim--forms the basis for this legal malpractice action.

Shortly after Nachtsheim's death, Wartnick contacted Gainsley because he feared he would be charged with Nachtsheim's murder. The threat of indictment was real because days before the murder Wartnick had renewed a "key man" insurance policy on Nachtsheim's life from Prudential Insurance Co., even though Nachtsheim had left Midwest nine months earlier. Midwest was the named beneficiary. During the murder investigation, Gainsley advised Wartnick not to take a polygraph test after the police requested it. Ultimately, the investigation led to no indictments and the case remains unsolved.

In August 1973, Wartnick and Midwest retained Gainsley to obtain the life insurance proceeds, which was successfully accomplished. Three years later, Nachtsheim's widow, Betty, commenced an unjust enrichment claim against Wartnick, Midwest and Prudential to recover the insurance proceeds. She alleged that Midwest had no insurable interest in Nachtsheim's life, that Nachtsheim had told Prudential not to renew the policy, and that Wartnick had murdered or procured the murder of her husband. Wartnick retained Gainsley as counsel. At a February 1979 deposition in this action, Wartnick followed Gainsley's instructions and asserted the fifth amendment privilege against self incrimination in response to two questions: "Do you admit personally murdering Robert Nachtsheim?" and "Do you admit hiring anybody or asking anybody to murder Robert Nachtsheim?" At the time of the deposition, the three year statute of limitations had already expired on a wrongful death action. See Minn.Stat. Sec. 573.02, subd. 1 (Supp.1973).

In 1983, the legislature amended the wrongful death statute to remove the limitations period for "intentional acts constituting murder." 1983 Minn.Laws ch. 347 Sec. 2-3 (effective June 15, 1983). The amendment was applied retroactively. Id. see Nachtsheim v. Wartnick 411 N.W.2d 882, 887 (Minn.App.1987), pet. for rev. denied (Minn. Oct. 28, 1987) (holding retroactive application of the amendment did not impair Wartnick's due process rights). With this development, Betty Nachtsheim commenced a wrongful death action against Wartnick and Midwest. Gainsley was retained as counsel.

The unjust enrichment and wrongful death claims were consolidated and tried before a jury in April 1986. During his trial preparation, Gainsley reviewed the criminal police file, interviewed Lieutenant Krueger, the investigating officer, and deposed Betty Nachtsheim. In February 1986, Gainsley offered Wartnick for a second deposition on the condition the 1979 deposition not be used at trial. Nachtsheim's counsel never responded. At the trial, during Gainsley's opening statement he referred to the fact Wartnick had refused to take the requested polygraph test. Wartnick took the stand and verified each assertion of the fifth amendment privilege to deposition questions about his involvement in Nachtsheim's murder. The jury was instructed it may draw adverse inferences from Wartnick's fifth amendment pleas.

After the trial, the jury by special verdict found Wartnick had murdered or caused the murder of Nachtsheim and awarded Betty Nachtsheim $350,000 in compensatory and $2,000,000 in punitive damages. The trial court dismissed the unjust enrichment claim because the jury found for Midwest.

In January 1988, Wartnick commenced this legal malpractice action against respondents. In October 1988, the prior trial court judge denied Gainsley's summary judgment motion, concluding genuine issues of material fact existed as to four claims: (1) negligent assertion of fifth amendment privilege; (2) informed decision to assert the fifth amendment privilege; (3) prejudice of the admission of the polygraph refusal; and (4) negligent failure to depose or interview key witnesses. After the order, Wartnick served respondents with an amended complaint, which included the four claims above, plus a claim that Gainsley did not mitigate the damage by offering Wartnick for a second deposition on an unconditional basis. After extensive discovery, a second summary judgment motion was heard. Ultimately, the subsequent trial court judge granted summary judgment on each of the five claims and this appeal followed.

ISSUES

1. Did the trial court err by granting summary judgment to respondents on the fifth amendment claim?

2. Did the trial court err by granting summary judgment to respondents on the failure to mitigate claim?

3. Did the trial court err by granting summary judgment to respondents on the polygraph claim?

4. Did the trial court err by granting summary judgment on the failure to depose key witnesses and suspects claim?

ANALYSIS

Standard of Review

In reviewing a grant of summary judgment, this court must determine: (1) whether genuine issues of material fact exist, and (2) whether the trial court erred in applying the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn.1988). The evidence is viewed in the light most favorable to the party against whom summary judgment was granted. Grondahl v. Bulluck, 318 N.W.2d 240, 242 (Minn.1982).

There are four elements of a legal malpractice claim: (1) the existence of an attorney-client relationship; (2) attorney conduct amounting to negligence or breach of contract; (3) the conduct was the primary cause of the damages; and (4) but for the attorney's negligence the plaintiff would have prevailed in the underlying action. Blue Water Corp. v. O'Toole, 336 N.W.2d 279, 281 (Minn.1983). It is undisputed that Gainsley represented Wartnick. The disposition of each claim turns on whether there are issues of material fact concerning Gainsley's alleged negligence or causation.

I

Wartnick first argues the trial court erred by granting summary judgment to Gainsley on the two fifth amendment claims: (1) Gainsley failed to know or consider the consequences of advising Wartnick to assert the fifth amendment privilege at the 1979 deposition; and (2) Gainsley failed to inform Wartnick of the ramifications of pleading the fifth amendment. Without reaching the question of Gainsley's alleged negligence, we hold the trial court properly dismissed the two claims on the grounds the 1983 amendment to the wrongful death limitations period broke the chain of causation between Gainsley's conduct and Wartnick's damages. ¹ The amendment was, in short, a superseding cause which would eliminate any liability even if Gainsley had been negligent.

There are four elements of a superseding cause: (1) its harmful effects occurred after the original negligence; (2) it must not be brought about by the original negligence; (3) it works to bring about a result not otherwise following from the original negligence; and (4) it was not reasonably foreseeable by the original wrongdoer. Regan v. Stromberg, 285 N.W.2d 97, 100 (Minn.1979).

The 1983 amendment of the wrongful death act's limitation period satisfies the elements of a superseding cause. First, the harmful effects of the amendment--creating Wartnick's liability for Nachtsheim's wrongful death--occurred four years after Gainsley's alleged negligent advice. Moreover, the...