This opinion will be unpublished and

may not be cited except as provided by

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







William T. Burgmeier, et al.,





Gary Bjur, et al.,



Julie Wertish,




Filed January 7, 2003

Klaphake, Judge


Kandiyohi County District Court

File No. C901803



Lawrence H. Crosby, Jay D. Olson, Crosby & Associates, 630 Roseville Professional Center, 2233 Hamline Avenue North, St. Paul, MN  55113 (for appellants)


Kevin A. Spellacy, Kenneth H. Bayliss, Quinlivan & Hughes, P.A., 400 South First Street, 600 Wells Fargo Center, St. Cloud, MN  56302-1008 (for respondent)


            Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellants William Burgmeier and the B & P Living Trust (collectively Burgmeier) challenge the grant of summary judgment to respondent Julie Wertish, dismissing claims of negligence and slander of title.  Burgmeier also argues that the district court abused its discretion by denying his motion to amend the complaint to add attorney Stephen Hettig as a party.  Because Burgmeier failed to establish the basic elements of negligence and slander of title, the district court did not err in granting summary judgment to Wertish.  Because Burgmeier’s claim against Hettig is based on the same allegations as those against Wertish, an amendment to the complaint would be futile; thus, the district court did not abuse its discretion in denying the motion to amend.


            Summary judgment is granted where there are no genuine issues of material fact and one party is entitled to judgment as a matter of law.  Minn. R. Civ. P. 56.03.  No genuine issue of material fact exists

when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.


DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). 

            1.         Negligence

            In order to maintain a negligence action, an injured party must demonstrate (1) a duty; (2) breach of that duty; (3) that the breach of duty is the proximate cause of the injury; and (4) an injury.  Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 157 (Minn. 1982).  Burgmeier urges this court to find negligence per se, where violation of a regulation or statute causes harm to a person intended to be protected by that statute and the harm suffered is of the type intended to be avoided by the regulation or statute.  Alderman’s Inc. v. Shanks, 536 N.W.2d 4, 8 (Minn. 1995).  Violation of such a protective statute establishes duty and breach of duty and assumes proximate cause.  Id.  Burgmeier apparently bases his negligence per se claim on Minn. Stat. § 609.64 (2002), which prohibits the filing of a false or forged instrument affecting real property.

            The major flaw in this argument is that Wertish has not filed a false or forged instrument affecting real property.  By recording a quitclaim deed in Burgmeier’s favor, Wertish makes no claim to and is incapable of transferring any of Burgmeier’s property.

 [A] quitclaim deed passes all of the estate which the grantor can convey by deed of bargain and sale.  * * *  [T]he grantor does not propose to be held responsible for the condition of the title, and, when [the grantor] thus conveys, it is immaterial to him whether he has title or not.  It passes such rights and interests as the grantor possesses at the time, but by its execution and delivery a grantor does not affirm that he is possessed of any title whatsoever.


Caughie v. Brown, 88 Minn. 469, 473, 93 N.W. 656, 657 (1903).  By recording a quitclaim deed, Wertish did nothing more than grant any interest she may have acquired, even if purely speculative or non-existent, to Burgmeier. 

            Nor has Burgmeier established a duty based on an attorney-client relationship.[1]  An attorney-client relationship can exist under either a contract theory, where there is an explicit agreement to provide services, or a tort theory, where a person “seeks and receives legal advice from a lawyer under circumstances in which a reasonable person would rely on the advice.”  Veit v. Anderson, 428 N.W.2d 429, 432 (Minn. App. 1988) (quotation omitted).  Although attorney Hettig, Wertish’s employer, proposed a quiet title procedure to Burgmeier in a letter, Burgmeier did not respond to or rely on the contents of the letter.

            Because Burgmeier has failed to present sufficiently probative evidence with respect to essential elements of his negligence claim, the district court did not err in granting summary judgment to Wertish on this cause of action.

            2.         Slander of Title

            To prove slander of title, a plaintiff must show (1) a false statement about real property owned by the plaintiff; (2) publication of the false statement; (3) malicious publication; and (4) pecuniary loss to the plaintiff in the form of special damages.  Paidar v. Hughes, 615 N.W.2d 276, 279-80 (Minn. 2000).  Filing an inoperative document, if done maliciously, may constitute slander of title.  Id. at 280.  Special damages may include attorney fees incurred to remove a cloud on the title.  Id. at 281.

            The district court determined not only that Burgmeier failed to produce evidence on each of these elements, but that he barely pled sufficient facts to “satisfy the minimal requirements of notice pleading.”  We agree. 

            First, the Wertish-Burgmeier quitclaim deed is not a false statement; it merely conveys to Burgmeier any interest that Wertish may have in the described real property and has no other effect.  Because it is not false, there can be no publication of a false statement.  

            Next, a statement is malicious if made with no probable cause.  Quevli Farms, Inc. v. Union Sav. Bank & Trust Co., 178 Minn. 27, 30, 226 N.W. 191, 192 (1929); cf. Black’s Law Dictionary 968 (7th ed. 1999) (defining “malice” as including “the intent, without justification or excuse, to commit a wrongful act [or] [r]eckless disregard of the law or of a person’s legal rights.”).  Because the statement here consists of the quitclaim deed, which merely conveys any interest hypothetically acquired by Wertish to Burgmeier, there is no malice.

            Finally, Burgmeier has failed to show he incurred specific damages.  While he characterizes the costs he incurred while defending himself against charges under Minn. Stat. § 609.64 and the fine he paid on conviction as special damages, these expenses were incurred not as a result of the filing of the Wertish-Burgmeier deed, but because Burgmeier sought to record deeds claiming title to his neighbors’ property.  Although Burgmeier has incurred attorney fees in the quiet title action, the underlying boundary disputes predate the Wertish-Burgmeier deed and would most likely have been incurred anyway. 

            In the absence of proof on essential elements of a claim, a defendant is entitled to judgment as a matter of law.  Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995). The district court thus did not err in granting summary judgment to Wertish on Burgmeier’s slander of title claim.

            3.         Motion to Amend

            After the initial service period, a party may amend a complaint only with leave of the court or written permission of the other parties.  Minn. R. Civ. P. 15.01.  Although permission is to be freely given when justice requires, the decision is within the discretion of the district court and is overturned only for an abuse of discretion.  Id.; Copeland v. Hubbard Broadcasting, Inc., 526 N.W.2d 402, 405 (Minn. App. 1995), review denied (Minn. May 29, 1995). 

It is not an abuse of discretion to deny a motion to amend a complaint to assert a claim that is not legally recognized * * * [or] to deny a motion to amend when the movant fails to establish evidence to support its claims.


Copeland, 526 N.W.2d at 405. 

            Burgmeier’s claim against Hettig rests on the same factual and legal basis as his causes of action against Wertish.  Thus, he would be no more successful against Hettig.  The district court did not abuse its discretion in denying the motion to amend.



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

[1] The issue of whether Wertish, a legal assistant, could have an attorney-client relationship was not discussed.