This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-901

 

J. Trent Mosby,
Appellant,

vs.

Paul Engh,
Respondent.

 

Filed May 2, 2006

Affirmed

Peterson, Judge

 

Olmsted County District Court

File No. C6-03-4174

 

J. Trent Mosby, P.O.B. 4000 F.M.C., Rochester, MN  55903 (pro se appellant)

 

William L. French, 627 Woodhaven Court Northeast, P.O. Box 6323, Rochester, MN  55903-6323 (for respondent)

 

            Considered and decided by Peterson, Presiding Judge; Klaphake, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

In this appeal from summary judgment, appellant J. Trent Mosby argues that the district court erred by (1) dismissing his claims for breach of contract and fraud; (2) denying his motion to amend his complaint; (3) suspending discovery; and (4) denying his motion to compel alternative dispute resolution.  We affirm.

FACTS

Mosby was convicted of conspiracy to manufacture and distribute methamphetamine and retained respondent Paul Engh as his attorney to pursue postconviction relief in the United States Supreme Court.  Engh prepared and filed a petition for a writ of certiorari, which was denied on October 7, 2002. 

            On October 6, 2003, Mosby sued Engh, alleging breach of contract, fraud, breach of fiduciary duty, and professional negligence.  On November 17, 2003, Mosby filed a motion asking the district court to waive the expert-affidavit requirement of Minn. Stat. § 544.42 (2002).  On November 21, 2003, Engh responded to requests for admissions, and on December 9, 2003, Engh filed his answer and moved to dismiss Mosby’s complaint for failure to file an expert affidavit.  In December 2003, the district court denied Mosby’s motion to waive the expert-affidavit requirement.  Mosby then asked for 60 days to comply with the requirement. 

On December 22, 2003, Mosby filed a document titled “Plaintiff’s Certification of Expert Review,” which states that Bill Golden reviewed Mosby’s file and believed that Mosby’s professional-negligence claim would succeed.  An attachment identifies Golden as a legal assistant but provides no additional information about Golden’s professional qualifications.  On December 31, 2003, Mosby filed a motion to compel discovery, and on January 6, 2004, he filed a document titled “Plaintiff’s Motion to Apprise [the Judge] of Compliance with 544.42.”  The document states that Mosby retained attorney Stephen M. Wheeler as an expert.  The document provides no information about Wheeler’s professional background and no basis for his opinion.  The document states that Wheeler “is presently preparing his expert opinion of the case.” 

On January 27, 2004, Engh responded to Mosby’s requests for production of documents.  On March 18 and 22, 2004, Engh requested that the court defer ruling on Mosby’s discovery requests until after Engh’s motion to dismiss could be filed and heard.  On April 23, 2004, Engh responded to supplemental requests for admissions.  On March 22 and April 27, 2004, Mosby filed more documents attempting to compel discovery. 

On May 22, 2004, the district court denied Mosby’s December 31, 2003 motion to compel discovery and ordered the parties to file informational statements.  On June 16, 2004, Mosby filed another motion to compel discovery, and on June 25, 2004, he filed a request for sanctions for Engh’s failure to comply with the court’s order to file an informational statement and failure to reply to discovery requests in a timely manner. 

On July 13, 2004, Mosby filed a motion to dismiss his professional-negligence claim and requesting court-ordered alternative dispute resolution (ADR) under Minn. R. Gen. Pract. 114.  On August 12, 2004, Engh filed a motion for summary judgment.  Also on August 12, the district court heard Mosby’s July 13 motion and his motions regarding discovery and sanctions.  On September 28, 2004, Mosby filed a motion to amend his complaint to include a claim for defamation.   

In an October 18, 2004 order, the district court granted Mosby’s motion to dismiss his professional-negligence claim and ordered discovery suspended until the court ruled on Engh’s summary-judgment motion.  On December 6, 2004, the district court heard Engh’s summary-judgment motion, Mosby’s motion to amend his complaint, and the outstanding motions regarding discovery and ADR.  On March 14, 2005, the district court granted Engh’s motion for summary judgment and denied all of Mosby’s pending motions.  Judgment was entered, and this appeal followed.

D E C I S I O N

I.

Mosby argues that the district court erred when it granted Engh summary judgment based on Mosby’s failure to comply with the expert-affidavit requirements of Minn. Stat. § 544.42, subd. 2 (2002). 

On appeal from a summary judgment, this court examines the record to determine whether any genuine issues of material fact exist and whether the district court erred in applying the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  This court must view the evidence in the light most favorable to the party against whom judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  

            In an action against a professional alleging negligence or malpractice in rendering a professional service where expert testimony is to be used by a party to establish a prima facie case, the party must:

                        (1) . . . serve upon the opponent with the pleadings an affidavit as provided in subdivision 3; and

                        (2) serve upon the opponent within 180 days an affidavit as provided in subdivision 4.

 

Minn. Stat. § 544.42, subd. 2; see also Minn. Stat. § 544.42, subd. 1(1) (2002) (defining “professional” to include a licensed attorney). 

            The affidavit that a party must serve with the pleadings under Minn. Stat. § 544.42, subd. 2(1), is an affidavit drafted by the party’s attorney that states that the attorney has reviewed the facts of the case “with an expert whose qualifications provide a reasonable expectation that the expert’s opinions could be admissible at trial and that, in the opinion of this expert, the defendant deviated from the applicable standard of care and by that action caused injury to the plaintiff.”  Minn. Stat. § 544.42, subd. 3 (2002). Failure to comply with Minn. Stat. § 544.42, subd. 2(1), “within 60 days after demand for the affidavit results, upon motion, in mandatory dismissal of each cause of action with prejudice as to which expert testimony is necessary to establish a prima facie case.”  Minn. Stat. § 544.42, subd. 6(a) (2002). 

            The affidavit that a party must serve within 180 days under Minn. Stat. § 544.42, subd. 2(2), is an affidavit signed by the party’s attorney that identifies any experts that the attorney expects to call as an expert witness at trial and states the substance of each expert’s testimony and a summary of the grounds for each of the expert’s opinions. Minn. Stat. § 544.42, subd. 4 (2002).  Failure to comply with Minn. Stat. § 544.42, subd. 2(2), “results, upon motion, in mandatory dismissal of each action with prejudice as to which expert testimony is necessary to establish a prima facie case . . . .”  Minn. Stat. § 544.42, subd. 6(c); see Middle River-Snake River Watershed Dist. v. Dennis Drewes, Inc., 692 N.W.2d 87, 90-91 (Minn. App. 2005) (stating that plain meaning of Minn. Stat. § 544.42, subd. 6, mandates dismissal of professional-negligence claim for failure to comply with expert-affidavit requirements).

            When Engh filed his motion for summary judgment, more than eight months had passed since the district court denied Mosby’s motion to waive the expert-affidavit requirements,[1] and it is undisputed that Mosby failed to provide the required affidavits.  Therefore, the district court was required to dismiss each claim that required expert testimony to establish a prima facie case. 

Mosby argues that because he voluntarily dismissed his professional-negligence claim, and he does not need expert testimony to prove his breach-of-contract and fraud claims, the district court erred in granting summary judgment on those claims.  Mosby contends that the district court judge who heard his motion to waive the expert-affidavit requirements “made a ruling that no expert was needed to sustain the claims of contractual breach and fraud[.]”  But Mosby misconstrues the judge’s statement.  In denying Mosby’s motion to waive the expert-affidavit requirements, the district court stated with respect to the breach-of-contract and fraud claims:

Now, on the other two, just so we’re also clear, I’m distinguishing those other two causes of action in which I think Mr. Mosby is essentially saying that he had a contract with this attorney to do job ‘A’.  Job ‘A’ didn’t get done.  And I’m not persuaded that that cause of action requires expert testimony.  . . .  So at least arguably, I think, there is a cause of action that does not require expert testimony.  . . .  I’m finding that at least part of the case does require expert testimony and I’m denying Mr. Mosby’s motion[.]

 

(Emphasis added.)  The district court did not rule that no expert was needed to prove the breach-of-contract and fraud claims; the judge determined that the professional-negligence and breach-of-fiduciary-duty claims required expert testimony and denied the waiver motion on that basis. 

            “[W]hether expert testimony is required depends on the nature of the question to be decided by the trier of fact and on whether technical or specialized knowledge will assist the trier of fact.”  Blatz v. Allina Health Sys., 622 N.W.2d 376, 388 (Minn. App. 2001); see Minn. R. Evid. 702 (providing that when specialized knowledge will assist the trier of fact to understand evidence or determine facts at issue, a qualified expert may testify and give an opinion). 

            In legal-malpractice cases, “[e]xpert testimony should be generally required to establish the standard of care applicable to an attorney whose conduct is alleged to have been negligent and further to establish that his conduct deviated from that standard.”  Hill v. Okay Constr. Co., 312 Minn. 324, 337, 252 N.W.2d 107, 116 (1977).  That rule is “subject to the exception that such expert testimony is not necessary in cases where the conduct complained of can be evaluated adequately by a jury in the absence of expert testimony.”  Id. 

            Mosby argues that his breach-of-contract claim should have survived summary judgment because, without expert testimony, he can prove that he contracted with Engh to prepare a certificate of appealability, and, instead, Engh prepared a writ of certiorari.  But 

[i]n an action against an attorney for negligence or breach of contract, the client has the burden of proving the existence of the relationship of attorney and client; the acts constituting the alleged negligence or breach of contract; that it was the proximate cause of the damage; and that but for such negligence or breach of contract the client would have been successful in the prosecution or defense of the action. 

 

Christy v. Saliterman, 288 Minn. 144, 150, 179 N.W.2d 288, 293-94 (1970).

 

            Even if Mosby were able to prove the existence of the attorney-client relationship and the terms of the contract without an expert, proving that Engh’s actions constituted a breach would require expert testimony.  In the absence of expert testimony, a layperson could not adequately evaluate whether there is a difference between a certificate of appealability and a writ of certiorari in the specialized area of federal postconviction relief.  Only expert testimony could establish whether preparing a writ of certiorari was a breach of Mosby’s contract with Engh and whether Mosby would have been successful in his appeal, but for Engh’s actions.  See Blue Water Corp. v. O’Toole, 336 N.W.2d 279, 282-83 (Minn. 1983) (holding that even if attorney conceded negligence for failing to file application, absent proof that plaintiff would have received bank charter if application had been filed, attorney was entitled to judgment); Hill, 312 Minn. at 338, 252 N.W.2d at 117 (noting that when client alleges attorney destroyed the cause of action, client must prove original claim had merit).

The fraud claim presents a similar problem.  The elements of fraud are

(1) there was a false representation by a party of a past or existing material fact susceptible of knowledge; (2) made with knowledge of the falsity of the representation or made as of the party’s own knowledge without knowing whether it was true or false; (3) with the intention to induce another to act in reliance thereon; (4) that the representation caused the other party to act in reliance thereon; and (5) that the party suffered pecuniary damage as a result of the reliance.

 

Sit v. T & M Properties, 408 N.W.2d 182, 185-86 (Minn. App. 1987). 

Mosby argues that he does not need expert testimony to prove that Engh fraudulently misrepresented his level of expertise in the area of federal postconviction relief.  But the claim in Mosby’s complaint labeled “fraud,” asserts

[Engh] willfully and intentionally deceived [Mosby] and won [Mosby’s] trust by making numerous declarations of his skill, knowledge and experience in the federal post-conviction appellate process.  Because [Mosby] relied on those assurances, [Engh] was able to obtain $8,500.00 from [Mosby] for legal fees to file a [certificate of appealability]. The final work product produced and filed by [Engh] proves that he was not competent in the specialized area and did not even file the appeal under the correct legal statute for review.

 

The claim asserts that the final work product that Engh produced proves that Engh’s declarations of his skill, knowledge, and experience were false.  But Mosby does not explain how, without expert testimony, a jury could evaluate Engh’s final work product to determine whether Engh’s declarations of his skill, knowledge, and experience were false. 

Although Mosby presents his claim as a “fraud” claim, the gravamen of the claim is that Engh did not exercise the same degree of skill and learning that an appellate specialist would use.  Mosby cannot avoid the expert-affidavit requirements by recasting what is essentially a malpractice claim into a fraud claim by asserting that Engh said that he had the skill, knowledge, and experience of an appellate specialist, but the statement was false.

            Mosby also argues that summary judgment should not have been granted because genuine issues of material fact exist.  But none of the disputed facts that Mosby identifies regarding the attorney-client contract and the alleged breach or fraud are material with respect to the motion for summary judgment.  Contrary to Mosby’s argument, his claims do not fall within the limited category of legal-malpractice cases that can be proved without expert testimony.  See Hill, 312 Minn. at 337, 252 N.W.2d at 116 (explaining when expert testimony is needed); see also Meyer v. Dygert, 156 F. Supp. 2d 1081, 1091 (D. Minn. 2001) (stating that unlike a claim involving obviously missed deadlines or stealing client funds, claims involving information not within common knowledge of jury, such as conflicts of interest, require expert testimony).

Because each of Mosby’s claims would require expert testimony to establish a prima facie case, Mosby was required to comply with the expert-affidavit requirements of Minn. Stat. § 544.42, and the district court did not err in granting Engh summary judgment because Mosby failed to comply with these requirements.

II.

Mosby argues that the district court erred in denying his motion to amend his complaint to add a defamation claim.  After an answer is served, “a party may amend a pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.”  Minn. R. Civ. P. 15.01.  “A court, however, may properly deny such amendments ‘when the additional alleged claim cannot be maintained.’” Stead-Bowers v. Langley, 636 N.W.2d 334, 341 (Minn. App. 2001) (quoting Hunt v. Univ. of Minn., 465 N.W.2d 88, 95 (Minn. App. 1991)), review denied (Minn. Feb. 19, 2002).  The district court has broad discretion to grant or deny leave to amend a complaint, and its ruling will not be reversed absent a clear abuse of discretion.  Fabio, 504 N.W.2d at 761.

 “In order for a statement to be considered defamatory it must be communicated to someone other than the plaintiff, it must be false, and it must tend to harm the plaintiff’s reputation and to lower him in the estimation of the community.”  Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 255 (Minn. 1980).  Because Mosby failed to present any evidence that Engh’s alleged statements harmed Mosby’s reputation, the district court did not clearly abuse its broad discretion by denying Mosby leave to amend.

III.

Mosby argues that the district court erred in suspending discovery.  “[T]he trial judge has wide discretion to issue discovery orders and, absent clear abuse of that discretion, normally its order with respect thereto will not be disturbed.”  Shetka v. Kueppers, Kueppers, Von Feldt & Salmen, 454 N.W.2d 916, 921 (Minn. 1990).  Also, the district court “has great discretion to determine the procedural calendar of a case.”  Rice v. Perl, 320 N.W.2d 407, 412 (Minn. 1982)

The district court ordered discovery suspended until the court ruled on Engh’s summary-judgment motion, which was based on the threshold issue of whether Mosby’s claims must be dismissed because Mosby failed to comply with the expert-affidavit requirements of Minn. Stat. § 544.42.  Because any further discovery would be unnecessary if the court granted Engh’s summary-judgment motion, the district court did not abuse its discretion by suspending discovery until after the court ruled on the motion.

IV.

Mosby argues that the district court erred by failing to compel ADR.  See Minn. R. Gen. Pract. 114.01 (stating that all civil cases are subject to ADR process).  But ADR is not mandatory in all cases.  See Minn. R. Gen. Pract. 114.04(b) (noting that district court may find ADR is not appropriate).  The district court heard Mosby’s motion to compel ADR on the same day that Engh filed his summary-judgment motion.  Because the summary-judgment motion was pending, it was not an abuse of discretion for the district court to postpone ruling on Mosby’s motion to compel ADR.  See Rice, 320 N.W.2d at 412 (stating that district court has broad discretion to determine procedural calendar of case).  After granting Engh summary judgment, the district court did not abuse its discretion by denying Mosby’s pending motions.

Affirmed.



[1] The district court denied Mosby’s motion to waive the expert-affidavit requirements in December 2003.  When the district court denies a motion to waive the expert-affidavit requirements, the affidavit of expert review must be served within 60 days, and the affidavit identifying experts must be served within 180 days.  Minn. Stat. § 544.42, subd. 3(c).