This opinion will be unpublished and

may not be cited except as provided by

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






Donald Fulton,


Daniel W. Schermer and Judith K. Schermer,
individually and as co-partners,



Filed April 2, 2002


Stoneburner, Judge


Hennepin County District Court

File No. 003966



Richard P. Mahoney, Victor E. Lund, Mahoney, Dougherty and Mahoney, P.A., 801 Park Avenue, Minneapolis, MN 55404 (for respondent)


Frederick E. Finch, Anne C. Towey, Bassford, Lockhart, Truesdell & Briggs, P.A., 3550 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for appellants)



††††††††††† Considered and decided by Harten, Presiding Judge, Anderson, Judge, and Stoneburner, Judge.


U N P U B L I S H E D† O P I N I O N


††††††††††† Appellants Daniel W. Schermer and Judith K. Schermer appeal from the district courtís award of attorney fees to respondent Donald Fulton in this legal malpractice action.† Because attorney fees are not recoverable in a legal malpractice action, we reverse.



††††††††††† In 1990, Fulton, represented by the Schermers, obtained a right-to-sue letter from the Equal Employment Opportunity Commission so that he could be joined as a named plaintiff in an existing Title VII race-discrimination class action against Northern States Power.† Fulton had 90 days from receipt of the right-to-sue letter to bring an action against NSP.† NSP stipulated that the pending action could be amended to include Fulton.† The Schermers, however, failed to file or serve the amended complaint until well beyond the 90-day time limitation.† The federal district court dismissed Fultonís claims against NSP as untimely.†

††††††††††† Subsequently, NSP settled the class action for $2.1 million.† Because the settlement could not be distributed until Fultonís right to appeal the dismissal of his claim was resolved, counsel for the class negotiated a settlement with Fulton, who agreed to give up his right to appeal the dismissal for $26,120.[1]†† Fulton then initiated this suit against the Schermers for legal malpractice.† Fulton claimed that the Schemers breached their professional duty to and their contract with Fulton, which resulted in the dismissal of Fultonís claim against NSP.

††††††††††† Fultonís case was tried to a jury.† Counsel for the class testified at his deposition that had Fulton been a named plaintiff in the suit against NSP, the settlement value of his case would have been approximately $130,000.† The jury was asked only to decide the issues of proximate cause and what Fulton would have recovered had he participated in the settlement as a named plaintiff.† The jury found proximate cause and that Fulton would have received $32,500 if he had participated in the settlement as a named plaintiff.† After an offset for the amount actually received, Fultonís net recovery was $6,380.

Following the verdict, Fulton moved for attorney fees and costs.† The district court awarded Fulton attorney fees in the amount of $18,375.04.† The Schmerers appeal the award of attorney fees and Fulton filed a notice of review claiming that the district court abused its discretion by reducing Fultonís request for attorney fees by more that one-half.††††††††



††††††††††† The Schermers contend that the district court erred by awarding attorney fees to Fulton because, under Minnesota law, attorney fees are not recoverable in legal malpractice actions.† We agree.† A prevailing party in a Minnesota legal malpractice action is not entitled to an award of attorney fees.† See Hill v. Okay Constr. Co., 312 Minn. 324, 347, 252 N.W.2d 107, 121 (1977) (ďAttorney[] fees and expenses are not generally included in the measure of recoverable damages for negligence.Ē); Whitney v. Buttrick, 376 N.W.2d 274, 281 (Minn. App. 1985) (holding that the district court did not err in failing to award attorney fees to a prevailing party in a legal malpractice claim, in part, because attorney fees are not recoverable in malpractice claims unless authorized by statute or case law), review denied (Minn. Jan. 23, 1986).†

If Fulton had been required to prove his underlying discrimination claim, he may have been entitled to attorney fees incurred as a result of proving up his underlying claim in the malpractice action.† See Lorenzetti v. Jolles, 120 F. Supp. 2d 181, 190 (D. Conn. 2000) (permitting a prevailing party to recover those attorney fees incurred as a result of proving an underlying claim in a legal malpractice claim); Fitzgerald v. Walker, 121 Idaho 589, 594, 826 P.2d 1301, 1306 (1992) (affirming denial of attorney fees in malpractice case involving underlying antitrust claim because fees pursuant to underlying claim are part of measure of damages and must be submitted as part of proof of damages, not by post-trial affidavit); Admiral Merchs. Motor Freight, Inc. v. OíConnor & Hannan, 494 N.W.2d 261, 267 (Minn. 1992) (ďIn Minnesota malpractice cases, attorney fees incurred in the underlying dispute constituting the alleged malpractice may be recovered.Ē); Glamann v. St. Paul Fire and Marine Ins. Co., 424 N.W.2d 924, 927 (Wis. 1988) (awarding attorney fees to prevailing party in legal malpractice action for portion of claim that went to proving underlying employment discrimination claim).† But Fulton requested attorney fees for the malpractice action, thereby denying the district court of the opportunity to determine whether he was entitled to attorney fees incurred in proving up the underlying claim; therefore, we decline to address the issue.† Likewise, we decline to address the issue, raised by the Schermers for the first time on appeal, of whether an award of attorney fees for the underlying action is part of the damages claim that must be submitted to the jury rather than requested from the court after a jury verdict.† Although these questions need to be answered, they are not the issues in this case.†††††††

††††††††††† Because the district court erred as a matter of law in granting attorney fees incurred by Fulton in this legal malpractice action, we also decline to address whether the district court abused its discretion in determining the amount of attorney fees.

††††††††††† Reversed.


[1] No portion of Fultonís recovery was designated as attorney fees and no part of his recovery was taken as attorney fees.