This opinion will be unpublished and

may not be cited except as provided by

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








James LaBorde, et al.,





Frank Castleman,



Jacqueline Castleman,



Bruce Bundgaard d/b/a/ Bundgaard Law Office,





Filed July 25, 2006


Lansing, Judge



Crow Wing County District Court

File No. C7-05-505



John F. Bonner, III, Robyn K. Johnson, Bonner & Borhart, LLP, 1950 U.S. Bank Plaza, 220 South Sixth Street, Minneapolis, MN 55402 (for appellants)


Richard J. Thomas, Chad J. Hintz, Burke & Thomas, P.L.L.P., 3900 Northwoods Drive, Suite 200, St. Paul, MN 55112 (for respondent Bruce Bundgaard d/b/a Bundgaard Law Office)


            Considered and decided by Lansing, Presiding Judge; Willis, Judge; and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N


James and Kathryn LaBorde appeal from dismissal of their legal-malpractice claim, arguing that the district court erred by dismissing the action based on their failure to file an expert-review affidavit under Minn. Stat. § 544.42 (2004).  Because their claim required expert testimony, because they failed to file the required expert-review affidavit, and because the district court did not abuse its discretion by declining to extend the deadline for filing the affidavit, we affirm.


            James and Kathryn LaBorde hired Bruce Bundgaard in 1998 to represent them in an action to quiet title on property that they had purchased earlier in the year.  After undertaking representation of the LaBordes, Bundgaard ascertained that a person named Henry Hand had a possible interest in the property.  The sellers indicated that Hand’s whereabouts were unknown.  Bundgaard initiated service by publication, but neither personally served Hand nor filed an affidavit stating that Hand’s residence was unknown.  The quiet-title action concluded in 1999, and the LaBordes acquired a deed to the property.

            In 2000 Bundgaard received information that Hand intended to assert his interest in the property.  Bundgaard became concerned that his failure to serve Hand might result in a legal-malpractice action and contacted his insurance provider.  In his letter to the insurance provider, he stated that, in 1999, he “did not file an affidavit residence unknown, although [he] could have done so.”

            Under a reservation of rights, the insurance provider paid the LaBordes’ mortgage interest on the property and the attorneys’ fees for a substitute attorney to represent them in their litigation against Hand.  Hand eventually prevailed on his claim, and the district court determined that Hand owned a one-half interest in the property.

            In a complaint dated January 27, 2005, the LaBordes alleged that Bundgaard committed legal malpractice.  They asserted that his failure to properly serve Hand caused them to suffer damages, including attorneys’ fees, interest on their mortgage, costs resulting from their inability to resell the property, and lost business opportunities. 

Bundgaard wrote the LaBordes on February 9, 2005, and demanded that they provide an expert-review affidavit based on Minn. Stat. § 544.42 (2004).  When he filed his answer on February 25, he  again demanded that the LaBordes file the affidavit. 

The LaBordes failed to file the affidavit, and Bundgaard served a motion to dismiss on April 20, 2005.  The district court heard arguments on the motion and dismissed the legal-malpractice claim with prejudice.  The LaBordes appeal from this judgment, asserting that their claim did not require expert testimony and that the district court should have granted them an additional thirty days to file the affidavit.


            When a claim of legal malpractice requires expert testimony to establish a prima facie case, the claimant must serve two expert affidavits on the opposing party.  Minn. Stat. § 544.42, subds. 1, 2 (2004).  The claimant’s first affidavit, an affidavit of expert review must be served with the complaint.  Id., subds. 2(1), 3(a) (2004).  This affidavit must provide that an expert has reviewed the facts of the case and that, “in the opinion of the expert, the defendant deviated from the applicable standard of care and by that action caused injury to the plaintiff.”  Id., subd. 3(a)(1).

Failure to file an expert-review affidavit within sixty days after a demand for the affidavit results, upon motion, in mandatory dismissal with prejudice of each cause of action for which expert testimony is necessary to establish a prima facie case.  Id., subd. 6(a) (2004); see also Broehm v. Mayo Clinic Rochester, 690 N.W.2d 721, 726 (Minn. 2005) (addressing failure to file expert-review affidavit in support of medical-malpractice claim).  Although acknowledging the harshness of the remedy, courts have consistently held that dismissal with prejudice is mandated when a party fails to comply with an expert-affidavit requirement.  See, e.g., Middle River-Snake River Watershed Dist. v. Dennis Drewes, Inc., 692 N.W.2d 87, 91 (Minn. App. 2005) (requiring strict compliance with section 544.42); see also House v. Kelbel, 105 F. Supp. 2d 1045, 1049-51 (D. Minn. 2000) (dismissing claim when plaintiff did not timely comply with section 544.42).  We review a district court’s dismissal of a malpractice claim for noncompliance with expert disclosure under an abuse-of-discretion standard.  See Broehm, 690 N.W.2d at 725 (reviewing dismissal of medical-malpractice claim for abuse of discretion when plaintiff failed to file expert affidavit).

            The LaBordes assert that the expert-testimony statute does not apply to their claim because their cause of action for legal malpractice does not require expert testimony to establish a prima facie case.  A claim of legal malpractice that does not allege loss of or damage to an underlying claim has three elements.  Fiedler v. Adams, 466 N.W.2d 39, 42 (Minn. App. 1991), review denied (Minn. Apr. 29, 1991).  The plaintiff must establish (1) the existence of an attorney-client relationship giving rise to a duty, (2) the negligent provision of advice or exercise of judgment on which the plaintiff detrimentally relied, and (3) the proximate-cause nexus between the negligence and the plaintiff’s damages.  Id. 

Expert testimony is required to establish the professional standard of care and the breach of the standard.  Admiral Merchs. Motor Freight, Inc. v. O’Connor & Hannan, 494 N.W.2d 261, 266 (Minn. 1992); Spannaus v. Larkin, Hoffman, Daly, & Lindgren, Ltd., 368 N.W.2d 395, 399 (Minn. App. 1985), review denied (Minn. Aug. 20, Sept. 26, 1985).  Expert testimony must also demonstrate that the attorney’s negligence was the proximate cause of damages.  Walton v. Jones, 286 N.W.2d 710, 715 (Minn. 1979); see also Thomas A. Foster & Assocs., LTD v. Paulson, 699 N.W.2d 1, 8 (Minn. App. 2005) (stating that litigation of attorney-malpractice claim required expert testimony on “complicated issues of causation and damage”).  Expert testimony, however, is not required when the jury can evaluate the relevant conduct without the assistance of an expert.  Hill v. Okay Constr. Co., 312 Minn. 324, 337, 252 N.W.2d 107, 116 (1977).

            The LaBordes’ claim requires expert testimony to establish a prima facie case.  Although a jury is likely to understand that the rules of service required Bundgaard to personally serve Hand and that, by his own admission, he did not complete this service, the jury may not be equipped to evaluate whether his conduct violated the applicable standard of care.  Expert testimony would enable the jury to understand both the significance of service and the reasonable steps necessary to ensure proper service and would also assist the jury in evaluating whether Bundgaard’s conduct fell short of this standard.  While the rules of service apply equally to pro se parties and are therefore within a layperson’s comprehension, a claim of legal malpractice requires more than a showing that the lawyer violated a rule of civil procedure.  The LaBordes must also establish that an attorney exercising reasonable judgment would have obtained Hand’s address or properly effected service by publication if his address could not be obtained.

            Furthermore, expert evidence is also necessary to establish causation, a prima facie element in a legal-malpractice claim.  Section 544.42 expressly requires that the expert-review affidavit include an expert’s assessment that the attorney’s negligence caused damages.  Minn. Stat. § 544.42, subd. 3(a)(1).  Because proximate cause in a legal-malpractice case is a complex issue, the jury would likely need expert assistance to determine whether Bundgaard’s failure to properly serve Hand affected the LaBordes’ legal interest in the property. 

A jury could not reasonably assess whether Hand would have maintained his one-half interest in the property had he been properly served or whether proper service would have enabled the LaBordes to acquire the deed free of his interest in the property.  Without expert testimony to explain the underlying claim and the effect that improper service had on both the property rights of Hand and the LaBordes, the jury would have no means of evaluating proximate cause.  Consequently, expert testimony is necessary to establish the LaBordes’ prima facie case.

            We therefore conclude that the district court did not abuse its discretion by dismissing the LaBordes’ legal-malpractice claim for failure to file an expert-review affidavit.  Bundgaard demanded, on February 9, 2005, that the LaBordes file an expert-review affidavit and made a second demand for compliance in his answer, which he filed on February 25, 2005.  The LaBordes did not file the required affidavit within sixty days after this demand and, in fact, never complied with the requirement.  According to the plain language of the statute and the applicable caselaw, dismissal in these circumstances was mandatory.

            The LaBordes assert that, despite their failure to file a timely affidavit, the court abused its discretion by dismissing their claim because it should have extended the time limit for filing the affidavit by thirty days to permit them to comply.  A court may, for good cause shown, extend the filing deadlines for an expert-review affidavit.  Id., subd. 4(b) (2004) (permitting extension of time limits for good cause shown); Minn. R. Civ. P. 6.02 (stating that court, for cause, may extend time for filing). 

We conclude that the district court did not abuse its discretion by determining that the LaBordes failed to demonstrate good cause for a time extension.  The LaBordes’ only stated basis for failing to file the affidavit is their belief that expert testimony was unnecessary.  While they may have believed in good faith that expert testimony was unnecessary, they had the opportunity to request a waiver of expert review by filing an application for waiver with their complaint.  See Minn. Stat. § 544.42, subd. 3(c) (2004) (permitting waiver of affidavit “upon an application served with commencement of the action”).  They did not avail themselves of this option and have provided no explanation for their failure to request waiver.  Furthermore, the record does not indicate that they attempted to ascertain whether expert testimony would be required by the court before the time limit expired.  In the absence of a showing of good cause for an extension of time, we cannot conclude that the district court abused its discretion by dismissing the claim.


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