Douglas Olson, individually, and as assignee of Michael J. Stoderl, Appellant, vs. John E. Daubney, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-874

 

Douglas Olson,

individually, and as assignee of Michael J. Stoderl,

Appellant,

 

vs.

 

John E. Daubney,

Respondent.

 

Filed March 9, 2004

Affirmed in part and Remanded in part

Kalitowski, Judge

 

Ramsey County District Court

File No. C3-03-000205

 

Marian Mimi Hasselbalch, Hasselbalch Law Office, 4910 Highway 61, White Bear Lake, MN 55110 (for appellant)

 

John E. Daubney, c/o 1217 West Seventh Street, St. Paul, MN 55102 (attorney pro se)

 

            Considered and decided by Kalitowski, Presiding Judge; Shumaker, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Douglas Olson challenges the district court's grant of summary judgment in this legal malpractice action.  Appellant argues that the district court erred in finding that respondent John Daubney's actions were not the proximate cause of appellant's loss.  Because the district court correctly determined that the actions of appellant and his business partner, rather than any actions by respondent, caused the district court to dissolve its temporary restraining order, we affirm summary judgment on that issue.  But because the district court failed to address appellant's second allegation of legal malpractice by respondent, we remand in part.

D E C I S I O N

I.

            When reviewing a grant of summary judgment, this court determines whether there are any genuine issues of material fact and whether the district court erred in applying the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  In a legal malpractice action, the plaintiff must prove that (1) an attorney-client relationship existed between the parties; (2) the defendant attorney's actions amounted to negligence or breach of contract; (3) the actions were the proximate cause of plaintiff's damages; and (4) but for the attorney's conduct, plaintiff would have prevailed in the underlying action.  Rouse v. Dunkley & Bennett, P.A., 520 N.W.2d 406, 408 (Minn. 1994). 

            Appellant argues that the district court erred in finding that appellant failed to prove that respondent's actions were the proximate cause of appellant's loss and that, but for respondent's actions, appellant would have succeeded in the underlying contract-for-deed action.  Appellant claims that respondent failed to advise his clients to make the contract for deed at issue current before the June 28, 1996, hearing, and failed to inform them of the importance of bringing "good" funds to that hearing.  Appellant claims this failure caused him and his business partner to fail to comply with the court's orders and lose their building. 

An act is the proximate cause of an injury if the act is one which the party ought, in the exercise of ordinary care, to have anticipated was likely to result in injury to others.  Wartnick v. Moss & Barnett, 490 N.W.2d 108, 113 (Minn. 1992) (quotation omitted).  Here, the district court stated that the dissolving of the temporary restraining order, enjoining the cancellation of the contract for deed, was "clearly a result of failure of Mr. Stoderl to provide good funds to bring the Contract for Deed current as he promised the Court."  The court explained that the transcript of the June 28, 1996, hearing made clear that Michael Stoderl and his accountant Douglas Barthel made affirmative statements to the court that they could make the contract for deed current by the end of the day.  Quoting the transcript, the district court noted that Stoderl and Barthel agreed in open court that, "all of this business is premised on the notion that all of these funds are good funds."  Thus, the district court properly concluded that regardless of any of respondent's actions, it was the actions of Stoderl and Barthel at the hearing that caused the district court to dissolve the temporary restraining order.  And because respondent could not have reasonably foreseen that Stoderl and Barthel would fail to fulfill the commitment they made to the court, the district court properly determined that respondent's actions prior to, and at the hearing, were not the proximate cause of appellant's loss.

II.

Appellant also alleged in the district court that respondent failed to inform him and Stoderl that after the temporary restraining order was dissolved, they had 15 days to redeem the contract for deed under Minn. Stat. § 559.211, subd. 1 (2002), and that this failure constituted a separate act of legal malpractice.  Because the district court did not address this allegation in its order granting summary judgment, we remand for consideration of this issue in such further proceedings as the district court deems appropriate.  We express no opinion on the merits of the claim.

Finally, we note that because respondent Daubney has died since the filing of this appeal, appropriate amendments to the complaint must be made in district court in conjunction with any further proceedings. 

Affirmed in part and remanded in part.