Virgil Fuchs, et al., Appellants, vs. Ronald H. Schneider, et al., Respondents.

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This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-97-1975

Virgil Fuchs, et al.,

Appellants,

vs.

Ronald H. Schneider, et al.,

Respondents.

Filed July 7, 1998

Affirmed

Randall, Judge

Kandiyohi County District Court

File No. C0-97-0439

Brian M. Olsen, Brian M. Olsen Law Office, P.O. Box 927, Cokato, MN 55321 (for appellants)

Kevin A. Spellacy, Dyan J. Ebert, Quinliven, Sherwood, Spellacy & Tarvestad, P.A., 400 South First Street, Suite 600, P.O. Box 1008, St. Cloud, MN 56302 (for respondents)

Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Schumacher, Judge.

U N P U B L I S H E D O P I N I O N

RANDALL, Judge

Appellant challenges the district court's summary judgment awarded to respondents in this action for legal malpractice and misrepresentation. We affirm.

FACTS

Appellants Virgil and Jane Fuchs first became involved with respondent Ronald H. Schneider in the mid-1970s when he represented them in condemnation proceedings regarding their land, which at that time was subject to condemnation for the installation of electric lines. The Board of Commissioners awarded the Fuchses $29,047 for their land, and Schneider filed a notice of appeal on the Fuchses' behalf. The Fuchses were concerned that they would be exposed to electromagnetic radiation from the lines, but the parties agreed to delay pursuing their claim regarding the radiation until they had further scientific evidence. The Fuchses later pursued their challenge to the Board's decision with separate counsel. Ultimately, they settled for the amount originally awarded by the Board, plus interest.

On July 27, 1984, Virgil Fuchs collided with a motor vehicle while riding his motorcycle. The Fuchses met with Schneider to discuss settlement offers proposed by Federated Insurance, the motor vehicle driver's insurer. Schneider informed the Fuchses that their personal injury claim could be worth up to two million dollars. Schneider and the Fuchses entered into a formal retainer agreement for the personal injury case on November 27, 1987. The Fuchses agreed to pay Schneider $85 an hour and to pay expenses. The Fuchses brought suit in the personal injury action on December 23, 1987.

During their personal injury case preparation, the Fuchses discussed with Schneider Virgil Fuchs's conviction for criminal damage to property. Schneider felt that evidence of this conviction would not be admissible in the personal injury trial. However, the district court admitted the evidence at trial over Schneider's objection.

The personal injury trial commenced in January 1990. On January 20, in mid-trial, Schneider sent the Fuchses a letter stating that they owed his firm $36,407.49 and demanding $24,000 by Monday, January 22, or he would not continue as trial counsel. The parties signed a modified retainer agreement on January 22, agreeing to pay Schneider one-third of any recovery, in addition to expenses. The trial continued, and the jury ultimately found both Virgil Fuchs and the automobile driver negligent and divided liability between the parties.

The Fuchses commenced this attorney malpractice action in January 1996, asserting negligence, breach of contract, and misrepresentation. Schneider moved for summary judgment, and the district court granted this motion. The Fuchses filed a notice of appeal. Schneider filed a notice of review, asserting that the district court erred by not addressing the application of the professional judgment standard to appellants' allegations of malpractice.[1]

D E C I S I O N

On appeal from summary judgment, the reviewing court must determine whether there are genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The appellate court reviews the evidence in the light most favorable to the party against whom the district court awarded summary judgment. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

I. Malpractice

A plaintiff must establish four elements to prevail in a legal malpractice action:

(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 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).

The district court determined that the parties had an attorney-client relationship during the time period in question. The parties agree on this issue for purposes of appeal.

To prove negligence, the plaintiff must demonstrate the standard of care and prove that the plaintiff did not meet this standard. Wartnick v. Moss & Barnett, 490 N.W.2d 108, 112 (Minn. 1992). Attorneys are bound only "'to exercise that degree of care and skill that is reasonable under the circumstances, considering the nature of the undertaking.'" Id. (quoting Prawer v. Essling, 282 N.W.2d 493, 495 (Minn. 1979)). Mere error in judgment by an attorney will not create liability if the error was "'within the bounds of an honest exercise of professional judgment.'" Id. at 113 (quoting Cook v. Connolly, 366 N.W.2d 287, 292 (Minn. 1985)). The failure of a professional to use reasonable care in obtaining the information needed to exercise a professional judgment is negligence, however, even if the professional acted in good faith. Id. Generally, expert testimony is required to establish the applicable standard of care for an attorney who has allegedly been negligent and to establish that the attorney's conduct deviated from that standard. Hill v. Okay Constr. Co., 312 Minn. 324, 337, 252 N.W.2d 107, 116 (1977). There is an exception to the general rule when the conduct is such that it could be adequately evaluated by a jury without expert testimony. Id.

The Fuchses did not introduce expert testimony to support their claims. The district court found that without such testimony, a jury would be unable to determine the standard of care and whether Schneider breached this standard. Absent this testimony, the district court concluded there were no genuine issues of material fact as to whether Schneider breached a duty.

The district court noted five areas in which the Fuchses asserted Schneider was negligent in his representation:

(1) valuing [Virgil's] personal injury case; (2) determining the admissibility of evidence during trial; (3) failing to prosecute the appeal of the condemnation action; (4) failure to collect all of [Virgil's] medical records prior to the expert depositions; and (5) failing to offer the testimony of Dr. Farber at trial.

On appeal, the Fuchses do not address the collection of medical records or the failure to offer Dr. Farber's testimony. At the summary judgment hearing, and on appeal, the Fuchses pointed out that they were never informed of a $30,000 settlement offer made by the defendants during the personal injury trial. The district court did not address this settlement offer in its summary judgment order.

The Fuchses assert that because they were pro se until respondents served the summary judgment motion and because current counsel did not have the opportunity to get expert testimony, the district court inappropriately based summary judgment on the Fuchses' failure to provide an expert witness. The Fuchses further assert that an expert opinion was unnecessary in this case, as it is common knowledge that quitting in the middle of a trial and seeking a revised fee agreement is malpractice.[2] They also argue that it is common knowledge that failing to convey a settlement proposal is inappropriate and arguable negligence per se.

The Fuchses did not demonstrate the standard of care required under the circumstances as to any of their claims addressed by the district court. They did not submit any expert testimony as to the standard of care, and Schneider's conduct could not be evaluated by a jury without such testimony. Although the Fuchses point to their pro se status prior to the summary judgment motion as a justification for why they did not submit expert testimony, pro se appellants have the duty and responsibility to know the legal requirements applicable to their claims. See Franklin Auto Body v. Wicker, 414 N.W.2d 509, 512 (Minn. App. 1987) ("A court will not modify ordinary rules and procedures because a pro se party lacks the skills and knowledge of an attorney."). The district court may give latitude to a diligent pro se party. See Kasson State Bank v. Haugen, 410 N.W.2d 392, 395 (Minn. App. 1987) (stating district court must ensure fairness to pro se party "by allowing reasonable accommodations so long as there is no prejudice to the adverse party"). Here, Fuchses' counsel admitted at the summary judgment hearing that he had told the Fuchses that they would need an expert opinion to support their allegations. At the hearing, their counsel also stated that attorneys in his office helped the Fuchses draft their complaint and their memorandum in opposition to respondents' summary judgment motion. Further, their counsel conceded that they "probably [did] need expert testimony" for all of their claims except for the alleged failure of Schneider to relay a settlement proposal to the Fuchses during trial. Finally, there is no evidence that the Fuchses or their counsel moved to continue the summary judgment hearing to permit them time to get expert testimony.

There may be a question of fact as to whether Schneider relayed to the Fuchses the personal injury defendants' final settlement offer of $30,000. The district court did not address this claim in its order or attached memorandum, however, and the Fuchses did not move for amended findings. Therefore, there is no issue before this court for review. See Frank v. Illinois Farmers Ins. Co., 336 N.W.2d 307, 311 (Minn. 1983) (stating

where there is neither conclusion nor finding on an issue and no motion is made for amended findings, there is nothing for this court to review on appeal).

The Fuchses do not raise any separate arguments on appeal as to breach of contract. They have, therefore, waived any breach of contract arguments. See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (holding unsupported assignment of error is waived unless prejudicial error is obvious on mere inspection).

Because we conclude that that the Fuchses' negligence and breach of contract claims are unsupported, we need not address whether Schneider's actions were the proximate cause of the Fuchses' damages or whether the Fuchses would have been successful in their condemnation or personal injury actions but for Schneider's actions.

The district court did not err in awarding respondents summary judgment on the Fuchses' legal malpractice claim. The Fuchses did not provide any expert testimony regarding the standard of care required in this case and such testimony was necessary here. Further, although there may be a material issue of fact as to whether Schneider was negligent in not informing the Fuchses of a settlement offer, this issue was not addressed by the district court and is not properly before this court.

II. Misrepresentation

To establish an intentional misrepresentation claim, a plaintiff must prove:

(1) there was a representation; (2) the representation was false; (3) the representation had to do with a past or present fact; (4) the fact was material; (5) the fact was susceptible of knowledge; (6) the representor knew the represented fact to be false, or, in the alternative, asserted it as his or her own knowledge without knowing whether it was true or false; (7) the representor intended to have the other person induced to act or justified in acting upon it; (8) that person was so induced to act or so justified in acting; (9) that person's action was in reliance upon the representation; (10) that person suffered damage; and (11) the damage was attributable to the misrepresentation.

Hanks v. Hubbard Broadcasting, Inc. 493 N.W.2d 302, 308 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993).

The district court determined that the Fuchses alleged a separate claim of misrepresentation and awarded summary judgment to respondents on this issue, as well as on the legal malpractice issue. The Fuchses do not address the misrepresentation issue separately in their appellate brief, but, rather, address issues of misrepresentation within their arguments regarding legal malpractice.

The district court noted that the Fuchses asserted Schneider made the following misrepresentations: (1) that the personal injury action had a two million dollar value; (2) that he would cease representing the Fuchses in the middle of the trial unless they paid him $24,000 within two days; and (3) that they had a possible claim against the helmet manufacturer. On appeal, the Fuchses do not address the helmet manufacturer claim, and they did not argue that Schneider's statement that he would quit the trial was a misrepresentation.

The district court concluded that the Fuchses failed to provide evidence that Schneider knew the facts he represented were false or that Schneider asserted them as his knowledge without knowing if they were true or false. We agree. An attorney's pretrial conjecture as to what a case "might be worth," and with that evaluation coming before discovery had been completed, is, by definition, conjectural and speculative. On these facts, conjecture, by itself, is not an actionable misrepresentation. More often than not, clients ask personal injury attorneys for pretrial estimates as to what "they might get." The district court found that the Fuchses did not provide evidence that they suffered damages attributable to the misrepresentation. The district court acted properly.

We conclude, as did the district court, that the Fuchses are relying on straightforward assertions and have not presented any evidence to support their claims. We agree with the district court that the record contains no evidence indicating genuine issues of material fact for trial. See Hunt v. IBM Mid Am. Employees Fed. Credit Union, 384 N.W.2d 853, 855 (Minn. 1986) (holding to successfully oppose summary judgment, nonmoving party cannot rely on mere general statements of fact but must provide specific facts showing there is genuine issue of fact). Thus, the district court did not err in granting summary judgment on the misrepresentation issue.

Affirmed.

[ ]1 Although Schneider filed a notice of review, which asserts that the district court erred in not addressing the professional judgment rule, he makes no specific arguments and cites no authority for this assertion in his brief. Thus, this court need not address this issue. See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (holding assignment of error unsupported by argument or authorities is waived unless prejudicial error is obvious on mere inspection).

[ ]2 Although ambiguous, it appears that the Fuchses' statements regarding Schneider's threat to quit the trial are related to the Fuchses' argument that Schneider was negligent in valuing their personal injury claim.