This opinion will be unpublished and

may not be cited except as provided by

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






Larry L. Seaburg,





Allan H. Caplan, et al.,



Filed July 31, 2001


Parker, Judge*


Hennepin County District Court

File No. MP 99-11723


Larry Lee Seaburg, P.O. Box 700, Federal Prison Camp, Yankton, SD  57078 (pro se appellant)


Gary Stoneking, Stoneking Law Office, 3605 France Avenue North, Robbinsdale, MN  55422-2337 (for respondents)


            Considered and decided by Schumacher, Presiding Judge, Anderson, Judge, and Parker, Judge.

U N P U B L I S H E D   O P I N I O N


            Pro se appellant Larry Seaburg challenges the district court’s order dismissing his case with prejudice.  Seaburg argues that the court erred by concluding that (a) a six-year statute of limitations barred his legal malpractice, fraudulent misrepresentation, fraudulent concealment, breach of fiduciary duty, and breach of contract claims against respondents Allan Caplan and Harlan Goulett, his attorneys, and (b) appellant failed to comply with the certification of expert review requirement under Minn. Stat. § 544.42 (2000).  Appellant also argues that the district court erred by denying (a) appellant’s request to withdraw his complaint without prejudice, (b) his motions for an evidentiary hearing and to reverse the court’s decision to dismiss his case with prejudice, and (c) his motions for continuances and to stay proceedings.  Finally, appellant asserts that respondents and their attorney violated a multitude of rules of professional responsibility and civil procedure, including a violation of rules of civil appellate procedure by filing an informal brief without first seeking this court’s permission and by failing to file a separate statement of the case.  Because we conclude that all of appellant’s claims were time-barred by a six-year statute of limitations and his other assertions lack merit, we affirm.


I.          Rules of Civil Appellate Procedure

            A.        Informal Brief

            “Informal briefs may be authorized by the appellate court and shall contain a concise statement of the party’s arguments on appeal * * * .”  Minn. R. Civ. App. P. 128.01, subd. 1.

Seaburg argues that Caplan and Goulett’s brief should be stricken in its entirety because they failed to seek this court’s permission to file an informal brief.  Seaburg is correct that Caplan and Goulett should have moved this court to allow them to file an informal brief.  Typically, this court will refuse to accept an informal brief that has been submitted without our permission and require the party to refile its brief following proper procedure.  A review of Caplan and Goulett’s brief demonstrates that it is adequately bound together and their argument is sufficiently presented for this court’s use.  Thus, we conclude that Seaburg has not been prejudiced by Caplan and Goulett’s informal brief and choose not to strike their brief.

            B.        Statement of the Case

            A “respondent may serve on all parties” a statement of the case “clarifying or supplementing the appellant’s statement.”  Minn. R. Civ. App. P. 133.03.  If the respondent agrees with the particulars set forth in the appellant’s statement, no additional statement need be filed.”  Id.

            Seaburg argues that rule 133.03 requires Caplan and Goulett to file their own statement of the case.  He also appears to assert that because Caplan and Goulett did not file their own statement of the case, they have conceded to the merits of Seaburg’s arguments, and thus, this court should remand.

The main purpose of the statement of the case is to state whether the appeal is from an order or a judgment; the type of litigation; a description of the claims, defenses, and issues litigated in district court; and the issues raised on appeal.  The statement is for informational rather than jurisdictional purposes, and often, respondents do not file their own statement.  Rule 133.03 states that a respondent may file its own statement but does not require the party to do so.  By not filing their own statement of the case, Caplan and Goulett were only agreeing to the issues to be litigated rather than conceding to the merits of Seaburg’s claims.  Further, Caplan and Goulett submitted a brief in which they argue the merits of the case.  We conclude that Caplan and Goulett have neither conceded to the merits of Seaburg’s arguments nor violated Minn. R. Civ. App. P. 133.03.

II.        Dismissal of Seaburg’s Case

            Caplan and Goulett set forth a summary judgment standard of review in their brief. In his reply brief, Seaburg challenges this standard, asserting that Caplan and Goulett set forth the standard “in an effort to mislead-confuse this Court on material facts and issues on appeal.”

            In district court, Caplan and Goulett moved to dismiss Seaburg’s case with prejudice, arguing that his claims were barred by the statute of limitations and that he failed to provide an affidavit by an expert witness as required by Minn. Stat. § 544.42, subd. 2 (2000).  A review of the record demonstrates that this was a motion for judgment on the pleadings.  On such a motion, if matters outside the pleadings are presented to and not excluded by the district court, this court reviews the district court’s decision under a summary judgment standard.  McAllister v. Independent Sch. Dist. No. 306, 276 Minn. 549, 551, 149 N.W.2d 81, 83 (1967).

The record demonstrates that the district court considered matters outside of the pleadings in granting Caplan and Goulett’s motion to dismiss.  For instance, the court’s order indicated that it considered a letter Seaburg had written to the court after the pleadings had been filed.   Accordingly, Caplan and Goulett have set forth the appropriate standard of review.

            On appeal from summary judgment, this court determines “(1) whether there are any genuine issues of material fact and (2) 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).  The evidence must be viewed “in the light most favorable to the party against whom judgment was granted.”  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted).

A.        Statute of Limitations

            The applicability and construction of a statute of limitations is a question of law, which this court reviews de novo.  Benigni v. County of St. Louis, 585 N.W.2d 51, 54 (Minn. 1998).  All five of Seaburg’s claims raised in district court (legal malpractice, fraudulent misrepresentation, fraudulent concealment, breach of fiduciary duty, and breach of contract) have a six-year statute of limitations, meaning the actions must be commenced within six years.  Minn. Stat. § 541.05, subd. 1(1), (6) (1992).  The limitation period begins to run when the cause of action accrues, unless a statute provides otherwise.  Minn. Stat. § 541.01 (2000).  A cause of action generally accrues when a party may bring suit without dismissal for failure to state a claim.  Levin v. C.O.M.B. Co., 441 N.W.2d 801, 803 (Minn. 1989).  The statute is not tolled by ignorance of the cause of action unless fraudulent concealment is involved. Herrmann v. McMenomy & Severson, 590 N.W.2d 641, 643 (Minn. 1999).  If fraudulent concealment is involved, the statute of limitations period is tolled until the concealment is or could have been discovered through reasonable diligence.  Wild v. Rarig, 302 Minn. 419, 450, 234 N.W.2d 775, 795 (1975).

            To determine whether the limitation period time-barred Seaburg’s claims, the district court looked at the chain of events that led to Seaburg’s claims against Caplan and Goulett.  In 1992, Seaburg was indicted for manufacturing a controlled substance. Seaburg retained Caplan and Goulett before trial in federal district court to replace his original counsel.  Seaburg was found guilty of the charged offense on January 14, 1993. In its order filed on August 1, 2000, which dismissed Seaburg’s case with prejudice, the district court determined that, because Seaburg was found guilty on January 14, 1993, and his current cause of action was commenced on August 24, 1999, all of Seaburg’s claims were barred by the six-year statute of limitations.

Seaburg argues that the pertinent date for determining whether his claims were time-barred was in November 1993 because that was the last time Caplan and Goulett had represented him by filing a rehearing petition.  He also asserts that Caplan and Goulett fraudulently concealed information from him, thus tolling the limitation period.

To establish fraudulent concealment

a plaintiff must prove there was an affirmative act or statement which concealed a potential cause of action, that the statement was known to be false or was made in reckless disregard of its truth or falsity, and that the concealment could not have been discovered by reasonable diligence.


Haberle v. Buchwald, 480 N.W.2d 351, 357 (Minn. App. 1992), review denied (Minn. Aug. 4, 1992) (citation omitted).  The circumstances constituting fraud must be stated with particularity.  Minn. R. Civ. P. 9.02.

            The record demonstrates that Seaburg has not set forth sufficient facts to establish that Caplan and Goulett fraudulently concealed information from him.  More importantly, Seaburg did not set forth sufficient facts to demonstrate why the alleged concealment could not have been discovered by reasonable diligence.  Seaburg merely asserted to the district court that he did not discover the concealment until he received his file from Caplan and Goulett.  But, through reasonable diligence, Seaburg could have requested to view his file sooner than 1997 and thus would have discovered any alleged concealment. Therefore, even viewing the record in the light most favorable to Seaburg, he should not have the benefit of having the statute of limitations tolled.  Although the district court did not make specific findings on this issue, “[f]indings of fact * * * are unnecessary on decisions on motions pursuant to Rules 12 or 56 or any other motion except as provided in Rule 42.01.”  Minn. R. Civ. P. 52.01 (emphasis added).

            Further, Seaburg’s argument that his claims should accrue from the date that Caplan and Goulett filed a rehearing petition is misplaced.  Seaburg’s argument is based on his assertion that Caplan and Goulett failed to timely file a pretrial motion and file the appropriate brief in federal district court.  Accordingly, if these alleged failures were detrimental to his case, Seaburg would have been damaged when he was found guilty on January 14, 1993, because, at that point, his cause of action would have survived a motion to dismiss if he had stated a claim upon which relief could be granted.  Thus, the appropriate accrual date is the date Seaburg was found guilty of the charged offense.

            Even when viewing the evidence in the light most favorable to Seaburg, the date he was found guilty in federal district court is the date he sustained “damage” because all of his claims stemmed from the same chain of events.  Because January 14, 1993, was the date Seaburg was damaged and he did not commence this action until August 24, 1999, over six years and seven months later, we conclude that the district court did not err by determining that all of Seaburg’s claims were barred by the six-year statute of limitations and dismissing his case with prejudice.

            B.        Certification of Expert Review

            We need not address this issue because we conclude that Seaburg’s claims were barred by the six-year statute of limitations.

III.       Seaburg’s Other Arguments on Appeal

            In light of our conclusion that Seaburg’s claims were time-barred, his other challenges to the district court’s orders are now moot.  We have reviewed each of Seaburg’s assertions that respondents and their attorney violated various rules of professional responsibility and civil procedure and find them to be without merit.


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.