Opinion
No. C6-97-1467.
Filed January 13, 1998.
Appeal from the District Court, Hennepin County, File No. 9516390.
Edward J. Schwartzbauer, (for appellants)
Ted E. Sullivan, William L. Davidson, Lind, Jensen Sullivan, P.A., (for respondents Hertogs, et al.)
Lewis A. Remele, Jr., Charles E. Lundberg, Mary L. Galvin, Bassford, Lockhart, Truesdell Briggs, P.A., (for respondents Diamond, et al.)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellants in this legal malpractice action challenge the district court's grant of summary judgment in favor of attorney respondents. We affirm.
FACTS
This case arises from the probate of the estate of Martin J. Hellman, who died in 1986. Leo Wolk, the personal representative for the estate, hired the law firm of Kaplan, Strangis and Kaplan (KSK) to help administer the estate. Hellman's second wife, Margaret E. Hellman (now Lundberg), and Hellman's three daughters from his first marriage, appellants Marilyn J. Hellman, Georgean Swartz, and Geraldean Goldberger, were the beneficiaries of the estate.
Appellants hired respondent Samuel H. Hertogs and the law firm of Hertogs, Fluegel, Sieben, Polk, Jones Laverdiere (Hertogs) to represent them during the probate proceedings. In 1988, on Hertogs' advice, appellants and Lundberg signed a stipulation that appellants would receive two-thirds of the estate and Lundberg would receive the remaining one-third. In 1990, again on Hertogs' advice, appellants signed a stipulation settling a dispute with Wolk and KSK regarding fees charged to the estate. Dissatisfied with Hertogs' representation and the way the estate was being settled, appellants retained respondent Richard I. Diamond and the law firm of Diamond Grady, P.A. (Diamond) to bring suit against Hertogs, Wolk and KSK. In 1993, Diamond unsuccessfully brought suit against Wolk and KSK. Diamond did not bring suit against Hertogs.
Appellants brought the present malpractice action against Hertogs and Diamond in 1995. Appellants allege that Hertogs was negligent in his treatment of the 1988 and 1990 stipulations. They also allege that Diamond allowed the statute of limitations to run on certain of their claims against Hertogs and that he brought a frivolous lawsuit against Wolk and KSK. The district court granted respondents' motion for summary judgment, and this appeal followed.
DECISION
On appeal from summary judgment, a reviewing court must determine: "(1) whether there are any genuine issues of material fact; and (2) whether the lower court erred in its application of the law." Lubbers v. Anderson , 539 N.W.2d 398, 401 (Minn. 1995). "A reviewing court is not bound by a district court's determination of a purely legal issue." Summit House Co. v. Gershman , 502 N.W.2d 422, 423-24 (Minn.App. 1993).
To establish a cause of action for legal malpractice in Minnesota, 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; (4) that but for the 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). There is no dispute that an attorney-client relationship existed between appellants and both Hertogs and Diamond.
To establish that an attorney acted negligently, the plaintiff must show the applicable standard of care and that the attorney did not meet that standard. Prawer v. Essling , 282 N.W.2d 493, 495 (Minn. 1979). Parties who oppose summary judgment motions in legal malpractice cases must present expert testimony establishing that standard of care and that the standard was breached. Wartnick v. Moss Barnett , 490 N.W.2d 108, 116 (Minn. 1992); Spannaus v. Larkin, Hoffman, Daly Lindgren , 368 N.W.2d 395, 399 (Minn.App. 1985), review denied (Minn. Aug. 20, 1985).
Appellants argue that they presented expert testimony that established both the standard of care and that respondents were not in compliance with that standard. Respondents contend that the testimony presented by appellants in response to the summary judgment motion was inadmissible because it was not in proper form.
The record shows that respondents moved for summary judgment in February 1997. In response, appellants provided the court with a "Submission" in opposition to respondents' motions for summary judgment. Attached to the "Submission" was a 2-volume, 655-page appendix that included undated, unsigned documents entitled "Anticipated Testimony of Faith Ohman" and "Anticipated Testimony of Howard Bard, Esq.," and letters from experts Thomas M. Conlin and Jerry G. Dygert. According to appellants, these are the documents and reports by which appellants established respondents' negligence.
Appellants admit that respondents objected to the form of these documents at the summary judgment hearing. Also at the hearing, the district court verbally ordered the parties to complete their expert depositions by April 20, 1997, and ordered respondents to submit proposed findings by May 1, 1997.
In their response to respondents' proposed findings, appellants advised the court:
The plaintiffs' experts have all been deposed by the defendants' lawyers and have fully supported under oath the unsworn reports contained in the appendix to Plaintiffs' Submission in Opposition to the Motions for Summary Judgment. Therefore, the assertion that the plaintiffs have not submitted expert testimony opposing the motions is not accurate.
Although appellants provided excerpts from these depositions, they did not submit the depositions nor did they submit any expert affidavits with their response. The district court granted respondents' motions for summary judgment by order dated May 28, 1997. On June 3, 1997, appellants moved for reconsideration. Included in the materials submitted with the motion for reconsideration were the depositions of appellants' four expert witnesses.
According to Minn.R.Civ.P. 56.03, summary judgment is appropriate 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.
On a motion for summary judgment, a court must disregard materials that would not be admissible at trial. Murphy v. Country House, Inc. , 307 Minn. 344, 349, 240 N.W.2d 507, 511 (1976). Further, this court has held that expert reports may not be considered in opposing a summary judgment motion if they are not submitted in proper affidavit form. Kay v. Fairview Riverside Hosp. , 531 N.W.2d 517, 520 (Minn.App. 1995), review denied (Minn. July 20, 1995); see also Itasca County Soc. Servs. v. Milatovich , 381 N.W.2d 497, 498 (Minn.App. 1986) (trial court erred in granting summary judgment based on report not in evidence or affidavit form). Because the expert reports presented by appellants in response to the motion for summary judgment were not in proper affidavit form, the district court was correct in not considering them. Without the expert letters, the record shows that there was no evidence before the court establishing the standard of care and that respondents had failed to meet that standard.
Appellants contend on appeal that there is "abundant evidence of negligence that precludes summary judgment." Appellants then go on to excerpt from "the extensive and detailed deposition testimony" given by their experts. The deposition testimony, presented to the district court as part of appellants' motion to reconsider, came to the court too late. After a district court has made its order granting summary judgment, "the record does not remain open for the submission of new evidence." Midway Nat'l Bank v. Bollmeier , 462 N.W.2d 401, 404 (Minn.App. 1990), aff'd , 474 N.W.2d 335 (Minn. 1991).
Appellants' reliance on Rathbun v. W.T. Grant Co. , 300 Minn. 223, 219 N.W.2d 641 (1974), is misplaced. In Rathbun , the supreme court accepted the defendant's use of affidavits after summary judgment to challenge the factual basis of the district court's decision. 300 Minn. at 238, 219 N.W.2d at 651. The court, however, specifically stated that the district court, in considering defendant's motion for amended findings, "must apply the evidence as submitted during the trial of the case. It may neither go outside the record, nor consider new evidence." Id. In other words, a party may use an affidavit to challenge a summary judgment decision; the affidavit, however, does not become a part of the record to be considered by the court in making its decision on a post-summary judgment motion. There, as here, the court is limited to the record established at the time summary judgment is entered.
Appellants also contend that the district court, by granting an extension of time for the expert depositions, "(apparently) correct[ed] any technical deficiency that may have existed in the record." The court, however, provided only an extension of time; it did not excuse appellants from the requirement that they provide admissible expert testimony.
Appellants further contend that, because of the court's "fast-track" scheduling and "unavoidable delay" by their experts, they were not able to provide the sworn reports prior to the summary judgment hearing. But appellants could have sought a continuance pursuant to Minn.R.Civ.P. 56.06. Alternatively, appellants could have submitted expert affidavits, if not by the hearing date then at least by May 9, 1997, the date their response to respondents' proposed findings was due. Appellants clearly failed to establish the applicable standard of care and that respondents breached that standard, and therefore failed to establish a cause of action for legal malpractice. See Blue Water Corp. , 336 N.W.2d at 282 (failure to prove any one of the four elements necessary to establish a cause of action for legal malpractice defeats recovery). The district court did not err in granting summary judgment on appellants' legal malpractice claims against Hertogs and Diamond.
Although it is not clear when appellants received copies of the depositions taken of their four experts, appellants did provide pages of the deposition testimony of experts Conlin and Dygert to the district court on May 9, 1997. If pages were available to appellants, this court can only conclude that the depositions were available to appellants and could have been provided to the district court at that time.
Because we determine that appellants did not establish a cause of action for legal malpractice, we do not reach appellants' argument that respondents' decisions in negotiating settlements and in determining what actions to pursue did not represent the reasonable exercise of professional judgment. Nor do we address appellants' argument that their claims were not time barred, other than to note that the Minnesota Supreme Court has not yet adopted the continuous representation rule. See Fletcher v. Zellmer , 909 F. Supp. 678, 685 (D.Minn. 1995), aff'd 105 F.3d 662 (8th Cir. 1997) (continuous representation rule is not controlling).
Respondents both have moved this court to strike from appellants' appendix the documents submitted with appellants' motion for reconsideration. Materials submitted with an unsuccessful motion for reconsideration of summary judgment may not be considered on appeal because they are not part of the record. Sullivan v. Spot Weld, Inc. , 560 N.W.2d 712, 715-16 (Minn.App. 1997), review denied (Minn. Apr. 24, 1997). Nor may materials submitted with a motion for amended findings after summary judgment be considered on appeal. Bohdan v. Alltool Mfg., Co. , 411 N.W.2d 902, 906 (Minn.App. 1987), review denied (Minn. Nov. 13, 1987). Granting respondents' motions would not change the result on appeal, and we decline to address them.