This opinion will be unpublished and

may not be cited except as provided by

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








Lyle Berman,





Maslon, Edelman, Borman & Brand, LLP,




Filed December 19, 2006


Toussaint, Chief Judge


Hennepin County District Court

File No. 27-CV-05-012341



Kevin C. Quigley, Hamilton Quigley & Twait PLC, W1450 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101-1314 (for appellant)


Lewis A. Remele, Jr., Kevin P. Hickey, Bassford Remele, P.A., 33 South Sixth Street, Suite 3800, Minneapolis, MN 55402-3707 (for respondent)



            Considered and decided by Toussaint, Chief Judge; Halbrooks, Judge; and Harten, Judge.*

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Appellant Lyle Berman challenges the judgment dismissing his legal-malpractice action for failure to comply with the expert-review statute.  Because the district court did not err in its application of the statute and did not abuse its discretion in ruling that no good cause existed to allow an extension of the filing deadline, we affirm.


In 1983, appellant retained respondent Maslon, Edelman, Borman & Brand, LLP, to draft an antenuptial agreement.  The agreement limited any future marital-dissolution award to the lesser of $1,030,000 or an amount equal to 10% of appellant’s net worth at the time of the dissolution.  The day after signing the agreement, the parties to the agreement were married. 

Nineteen years later, appellant was represented by respondent in a marital-dissolution proceeding.  His wife challenged the validity of the antenuptial agreement, claiming that the notary was not present when the document was executed.  In June 2003, the dissolution court determined that the agreement was invalid under Minn. Stat. § 519.11, subd. 2, which required execution of the antenuptial agreement in the presence of a notary.  The dissolution matter was settled. 

On April 13, 2005, appellant commenced, by service of the summons and complaint, this action for legal malpractice against respondent.  Appellant alleged two counts of legal malpractice, one count of misrepresentation for failing to disclose that the execution of the agreement was invalid, and one count of consumer fraud.  On May 3, 2005, respondent served its answer and demanded compliance with the expert-review statute, Minn. Stat. § 544.42 (2004).  Appellant served respondent with an affidavit of expert review on August 17, 2005 and filed his summons, complaint, and application for a waiver of the affidavit on August 24, 2005.

Respondent moved to dismiss the action for failure to comply with the expert-review statute. The district court granted the motion and dismissed with prejudice the legal-malpractice and misrepresentation claims for failure to comply with the expert-review statute; the consumer fraud claim was voluntarily dismissed without prejudice. 



Legal-malpractice actions are subject to the expert-review statute, Minn. Stat. § 544.42 (2004), which was modeled after the nearly identical expert-review statute applicable to medical-malpractice actions.  See Middle River-Snake River v. Drewes, Inc., 692 N.W.2d 87, 91 (Minn. App. 2005) (stating that analysis “parallels the reasoning used in construing [the medical-malpractice expert-review statute,] Minn. Stat. § 145.682 (2004)”).  The statute, like the medical-malpractice statute, applies to claims “where expert testimony is to be used by a party to establish a prima facie case [of malpractice].”  Minn. Stat. § 544.42, subd. 2.  The party must serve an affidavit on the opponent with the pleadings and certify that a qualified expert has opined that “the defendant deviated from the applicable standard of care and by that action caused injury to the plaintiff.”  Minn. Stat. § 544.42, subd. 3(1).   This certification may be waived or modified if, “upon an application served with commencement of the action,” the court determines “that good cause exists for not requiring the certification.”  Id.

It is undisputed that appellant failed to serve the required affidavit with the pleadings and also failed to timely apply for a waiver or modification of the affidavit on commencement of the action.  Appellant argues that the statute is inapplicable because he does not need to use expert testimony to establish his prima facie case of legal malpractice.

The statute’s applicability is an issue of statutory interpretation which is a question of law to be reviewed de novo.  Tousignant v. St. Louis County, 615 N.W.2d 53, 58 (Minn. 2000) (considering applicability of medical-malpractice statute).  

            “[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 trier of fact to understand evidence or determine facts at issue, qualified expert may testify and give  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).  The general 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.  The exception is for the “rare” and “exceptional” case.  Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 191 (Minn. 1990).

            To bring a successful claim of legal malpractice, a plaintiff must show

(1) the existence of an attorney-client relationship; (2) acts constituting negligence or breach of contract; (3) that such acts were the proximate cause of the plaintiff’s damages; [and] (4) that but for defendant’s conduct the plaintiff would have been successful in the prosecution or defense of the action. 


Blue Water Corp. v. O’Toole, 336 N.W.2d 279, 281 (Minn. 1983).[1]  Appellant contends that his prima facie elements of legal malpractice will be established through (1) the dissolution court’s finding that the antenuptial agreement was invalid; (2) the anticipated testimony of the attorney representing appellant on the antenuptial agreement; and (3) appellant’s testimony that, as a consequence of respondent’s failure to obtain proper execution of the antenuptial agreement, appellant was forced to negotiate a dissolution settlement in excess of the terms of the agreement. 

Appellant cites no authority for his assertion that the dissolution court’s ruling regarding the antenuptial agreement would be determinative of any issue or fact in this legal-malpractice action.  Therefore, this court declines to address the issue.  See Ganguli v. Univ. of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (declining to address allegations unsupported by analysis or citation).   We note, however, that courts "do not apply collateral estoppel rigidly and focus instead on whether an injustice would be worked upon the party upon whom the estoppel is urged."  Nelson v. Am. Family Ins. Group, 651 N.W.2d 499, 511 (Minn. 2002).   

Appellant argues that the failure to have a notary present was such a “patent” error that it constitutes res ipsa loquitur negligence and that “it is a matter of common experience of a lay person that a pre-marriage agreement not properly notarized as required by law will be unenforceable.”  These arguments do not dispose of the need for expert opinion.  First, appellant did not plead res ipsa loquitur.  The complaint alleges legal malpractice by failing to take “all proper and legal steps.” Expert opinion is required to show the standard of care and its breach. Second, the law of antenuptial agreements is not commonly known to laypersons.  Specialized knowledge will assist the trier of fact to determine if there was a breach of a legal duty and whether it proximately caused damage.  See, e.g., McKee-Johnson v. Johnson, 444 N.W.2d 259, 267 (Minn. 1989) (evaluating procedural and substantive fairness of antenuptial agreement, including consideration of changed circumstances since execution of agreement).  Appellant’s offer of his own lay testimony to provide evidence of causation will not assist the jury.   See, e.g., Blue Water Corp., 336 N.W.2d at 282-83 (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).

Appellant misplaces reliance on the anticipated testimony of his former attorney to establish the prima facie elements of breach of the standard of care and damages.  Respondent strongly disputes that the anticipated testimony will be offered. 

Not only do appellant’s offers of evidence fail to establish his prima facie case, but he also fails to distinguish his case from a typical legal-malpractice case in which expert testimony assists the trier of fact in establishing the appropriate standard of care, compliance or breach, and proximate cause of damages.  The district court correctly determined that expert testimony was needed and that appellant failed to comply with the expert-review statute.


Failure to comply with the affidavit requirements 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 (emphasis added).

The district court dismissed appellant’s misrepresentation claim as “essentially an extension of Plaintiff’s professional malpractice claim.”  Appellant argues that his misrepresentation claim is “independent of and not derivative of [his] legal malpractice claims.” 

Appellant’s misrepresentation claim alleges that respondent “knew that Plaintiff’s 1983 antenuptial agreement was not signed in the presence of a notary, and that, therefore, his 1983 antenuptial agreement was invalid and unenforceable under Minnesota law.”  To prevail on this claim, appellant must establish the same allegations made in his legal-malpractice claims and show that respondent concealed its negligence.   By its clear language, the expert-review statute applies to “each cause of action” for which expert testimony is required.  As the misrepresentation claim is directly tied to the legal-malpractice claim, both depend on expert testimony and are subject to the statute.  Therefore, the district court did not err in dismissing appellant’s related misrepresentation claim.


We review the denial of an extension of the expert-disclosure deadline for an abuse of discretion.  Broehm v. Mayo Clinic Rochester, 690 N.W.2d 721, 727 (Minn. 2005) (applying identical language in medical malpractice expert-review statute).

The district court specifically found that appellant “failed to establish any reasonable excuse for failing to meet the statutory deadlines and failed to proceed with due diligence after the demand made by [respondent].” Appellant claims that his challenge to the applicability of the statute constitutes “good cause.” 

Here, appellant had ample time to comply with the affidavit or seek waiver of the requirement.  He first learned of the alleged malpractice in 2003, but did not commence this action for nearly two years after the dissolution court ruling.  Appellant failed to comply with two requirements of the statute:  serving the affidavit on defendant and applying for a waiver upon commencement of the action.  He also failed to comply within 60 days of respondent’s demand.  Under these circumstances, the district court did not abuse its discretion in finding no good cause for an extension and dismissing the action for failure to comply. 


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

[1] The fourth element, “but for defendant’s conduct,” was recently modified by the Minnesota Supreme Court in legal-malpractice claims in transactional matters.  Jerry’s Enters., Inc. v. Larkin & Lindgren, 711 N.W.2d 811, 819 (Minn. 2006) (stating that fourth element “is modified to require a plaintiff to show that, but for defendant’s conduct, the plaintiff would have obtained a more favorable result in the underlying transaction than the result obtained”).  But see Antone v. Mirviss, 720 N.W.2d 331, 335 (Minn. 2006) (applying all four Blue Water elements in transactional case involving antenuptial agreement).  Jerry’s was decided on April 6, 2006, after the district court’s December 2005 decision in this case applied the fourth Blue Water element.