This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Duke Hamilton, Sr.,





Roger Stageberg and James Lockhart, et al.,



Filed March 20, 2001


Kalitowski, Judge


Hennepin County District Court

File No. 9918219


Duke Hamilton, Sr., 66401 Westchester Circle North, Golden Valley, MN 55427 (pro se appellant)


Lewis A. Remele, Jr., Kevin P. Hickey, Bassford, Lockhart, Truesdell & Briggs, P.A., 3550 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for respondent)


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

U N P U B L I S H E D   O P I N I O N


In this action alleging legal malpractice, appellant challenges the summary judgment in favor of respondents, contending the district court erred in determining that:  (1) appellant failed to show he would have recovered more money but for respondents’ alleged negligence; and (2) a prior unfavorable court ruling rejecting appellant’s attempt to rescind the settlement collaterally estopped this legal malpractice action.  We affirm.


            On appeal from summary judgment, this court considers whether there are any 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) (citation omitted).  No genuine issue of material fact exists “‘[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.’”  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)).  This court views “the evidence in the light most favorable to the party against whom [summary] judgment was granted.”  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted). 


To survive summary judgment in a legal malpractice case, a plaintiff must show: 

(a)   the existence of an attorney-client relationship;

(b)  acts amounting to negligence or breach of contract;

(c)  that such acts were the proximate cause of the plaintiff’s damages; and

(d)  that but for defendant’s conduct, the plaintiff would have been successful in the action.


Rouse v. Dunkley & Bennett, P.A., 520 N.W.2d 406, 408 (Minn. 1994) (citation omitted).  Failure to prove any one of the elements defeats the malpractice claim.  Blue Water Corp. v. O’Toole, 336 N.W.2d 279, 282 (Minn. 1983). 

            Appellant contends the district court erred in determining appellant failed to show that he would have gained more money by going to trial than he received under the settlement agreement.  We disagree. Appellant’s expert concluded, “there was a reasonable probability” appellant would have obtained more money if he had gone to trial.  But the Minnesota Supreme Court in Rouse stated that evidence showing that a plaintiff “more likely than not” would have prevailed, is inadequate.  520 N.W.2d at 409-10 (rejecting the “more likely than not” standard enunciated in Carlson v. Fredrikson & Byron, P.A.,475 N.W.2d 882 (Minn. App. 1991), review denied (Minn. Oct. 31, 1991)).  Instead, the Rouse court held that the proper standard is that the plaintiff “would have” prevailed.  Id. at 410; see also Blue Water Corp., 336 N.W.2d at 282 (reversing district court’s decision not to grant judgment notwithstanding the verdict where the corporation was unable to show that the commerce commission “would have” granted it a bank charter).

            Moreover, the district court’s decision here is consistent with the supreme court’s rejection of legal malpractice cases that call into question the amount of a settlement.  See Glenna v. Sullivan, 310 Minn. 162, 170, 245 N.W.2d 869, 873 (1976) (“To allow a client who becomes dissatisfied with a settlement to recover against an attorney solely on the ground that a jury might have awarded them more than the settlement is unprecedented.” (citations omitted)); Rouse, 520 N.W.2d at 410 n.6 (reiterating Glenna court’s dissatisfaction for a client recovering against his or her attorney by contesting amount of settlement).

            We conclude that the statement of appellant’s expert, that there was a “reasonable probability” that appellant would have obtained more money if he had gone to trial instead of settling, is inadequate to prove the causation element of legal malpractice.


            Appellant claims the district court erred in determining that he is collaterally estopped from claiming his attorneys committed malpractice either by pressuring him into settling or by ignoring his request to rescind the settlement.  We disagree.  “On a given set of facts the appellate court applies de novo review to questions of collateral estoppel.”  G.A.W., III v. D.M.W., 596 N.W.2d 284, 287 (Minn. App. 1999) (citations omitted), review denied (Minn. Sept. 28, 1999).  If this court “determine[s] that collateral estoppel is available, the decision to apply the doctrine is left to the trial court’s discretion.”  Regents of the Univ. of Minn. v. Medical, Inc., 382 N.W.2d 201, 207 (Minn. App. 1986), review denied (Minn. Apr. 18, 1986).

            For collateral estoppel to apply, the following elements must be present:

(1) the issue was identical to one in a prior adjudication;  (2) there was a final judgment on the merits; (3) the estopped party was a party or in privity with a party to the prior adjudication; and (4) the estopped party was given a full and fair opportunity to be heard on the adjudicated issue. 


A&H Vending Co. v. Commissioner of Revenue, 608 N.W.2d 544, 547 (Minn. 2000) (quotation omitted).  Before applying collateral estoppel, the previous issue must have been decided by a judgment on the merits.  Parker v. MVBA Harvestore Sys.,491 N.W.2d 904, 906 (Minn. App. 1992).  “A judgment based on a settlement agreement is a final judgment on the merits, but only with respect to those issues and claims actually settled.”  Goldberger v. Kaplan, Strangis & Kaplan, P.A., 534 N.W.2d 734, 736 n.1 (Minn. App. 1995) (citation omitted), review denied (Minn. Sept. 28, 1995).

            Here, appellant alleged in a postjudgment attempt at rescission of the settlement agreement that he was forced into the settlement and that his attorneys failed to process his request for rescission.  The district court denied appellant’s motion to rescind, finding that appellant was personally involved in the settlement negotiations, was aware of the terms and conditions of the settlement, and at all times was competently represented by counsel.  The court also found that appellant’s attempt at rescission was inadequate because he did not follow the provisions for rescission outlined in the settlement agreement.  These are the identical issues appellant is attempting to raise as the basis for his legal malpractice claim.  We conclude the district court properly determined that appellant’s claims are barred by collateral estoppel. 

            Finally, appellant attempts to argue that the district court’s decision to deny his request for rescission was incorrect, or, in the alternative, that the district court that decided this motion was not impartial.  Because appellant did not exercise his right to bring a timely appeal of this decision, these issues are not properly before us.