This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).







Dean Holtan,





Kevin T. Duffy, Esq., et al.,



Filed June 5, 2007


Hudson, Judge


Pennington County District Court

File No. C4-05-422


Keith D. Johnson, Law Offices of Keith D. Johnson, P.L.L.C., Barristers Trust Building, 247 Third Avenue South, Minneapolis, Minnesota 55415 (for appellant)


Randall S. Hanson, Scott Jensen, Camrud, Maddock, Olson & Larson, Ltd., 401 DeMers Avenue, Suite 500, P.O. Box 5849, Grand Forks, North Dakota 58206-5849 (for respondents)


            Considered and decided by Dietzen, Presiding Judge; Randall, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


            In this legal malpractice action, appellant Dean Holtan challenges the district court’s order granting respondents’ motion for summary judgment.  Because we conclude that appellant commenced this action after the applicable statute of limitations expired, we affirm.


Appellant was a party to a custody proceeding, which took place in January and February 1998.  On the last day of trial, the guardian ad litem testified about a recent conversation with appellant, during which he intimated that he had acquired confidential information about her adopted children.  The guardian explained that she feared that appellant was investigating her, or would possibly disclose the information at trial.  Due to her concerns, the guardian contacted the district court and informed the court of appellant’s comments.  The court asked the guardian to write a letter to the court about the incident, which she did.  The district court also advised the guardian that it would appoint counsel for her.  Prior to the trial, neither appellant nor respondent was informed of the guardian’s communications with the district court, but following the guardian’s testimony, the district court allowed the parties’ attorneys to review the guardian’s letter and offered both attorneys the opportunity to “follow up on it.”  Neither attorney took any further action.  Respondent Kevin Duffy, appellant’s attorney at the time, did not object to the guardian’s testimony or to the guardian’s earlier ex parte communications with the district court. 

On May 1, 1998, the district court issued its findings of fact, conclusions of law, and order, granting appellant’s ex-wife sole legal and physical custody of their minor child, and ordering appellant to pay $873 monthly child support.  In its memorandum, the district court stated that appellant “lacks credibility” and “attempted to intimidate or control the guardian ad litem.” 

Respondent Duffy moved for a new trial, but he failed to raise the issue of whether the ex parte communications rendered the district court biased against appellant or otherwise improperly influenced the district court’s decision.  On June 19, 1998, the district court denied the new-trial motion.  On April 20, 1999, this court affirmed, holding that appellant’s “failure to object to errors occurring during trial that he alleges show judicial bias precludes review.”  Holtan v. Holtan, No. C6-98-1348, 1999 WL 231677 at *7 (Minn. App. Apr. 20, 1999).  However, this court stated that the “alleged bias and unfairness, if it existed, did not result in legal injury.”  Id. at *7.  Neither party filed a petition for further review with the Minnesota Supreme Court. 

On April 14, 2005, appellant initiated this cause of action, alleging that respondent Duffy “breached his fiduciary duty [to appellant] and negligently and carelessly represented [appellant]” due to misconduct occurring prior to or during trial.  The complaint alleged that respondent Duffy’s misconduct caused the district court to rule against appellant.  Respondent moved for summary judgment, arguing that the statute of limitations had expired.  The district court granted the motion, concluding that appellant’s cause of action, if any, accrued on June 19, 1998, and was time-barred.  This appeal follows.


            Appellate courts will not reverse a grant of summary judgment unless the record shows that there is a genuine issue of material fact or the district court failed to properly apply the law.  Hyduke v. Grant, 351 N.W.2d 675, 677 (Minn. App. 1984), review denied (Minn. Oct. 16, 1984).  “When the material facts surrounding a statute of limitations question are not in dispute, our review is limited to whether the trial court erred in its application of the law.”  Herrmann v. McMenomy & Severson, 590 N.W.2d 641, 643 (Minn. 1999).  “The construction and applicability of statutes of limitations are questions of law that [appellate courts] review de novo.”  Noske v. Friedberg, 670 N.W.2d 740, 742 (Minn. 2003) (quotation omitted). 

Six years is the statute of limitations for a legal malpractice action.  Minn. Stat. § 541.05, subd. 1(5) (2006); Noske, 670 N.W.2d at 742.  The limitation period begins to run when a cause of action accrues; in other words, when the cause of action can survive a motion to dismiss for failure to state a claim upon which relief can be granted.  Herrmann, 590 N.W.2d at 643.  A claim will be dismissed “if it is not possible on any evidence which might be produced . . . to grant the relief demanded.”  Noske, 670 N.W.2d at 743 (quotation omitted).

A claim of attorney malpractice accrues when the plaintiff has sufficient facts to allege: “(1) the existence of an attorney-client relationship, (2) acts constituting negligence or a breach of contract, (3) that those acts were the proximate cause of the plaintiff’s damages, and (4) that but for the attorney’s negligence, the plaintiff would have been successful in the prosecution or defense of the action.”  Hyduke, 351 N.W.2d at 677.  “Failure to establish any one of these elements defeats the entire claim.”  Noske, 670 N.W.2d at 743. 

            Appellant argues that genuine factual issues exist as to (1) when respondent Duffy committed misconduct, and (2) when the misconduct caused harm.  Appellant cites as error respondent Duffy’s failure to bring a posttrial motion preserving for appeal the issue of judicial bias.  Respondent Duffy avers that any negligence occurred during trial when he failed to object to the guardian’s ex parte communications with the district court.  In our view, this dispute is irrelevant and does not raise a genuine issue of material fact because each act of alleged misconduct occurred prior to the district court’s denial of the new-trial motion on June 19, 1998—the date appellant arguably suffered some compensable harm. 

Our position is supported by the relevant caselaw.  Under Minnesota law, the statute of limitations is not dependent on the plaintiff’s ability to ascertain the exact amount of damages.  Herrmann, 590 N.W.2d at 643.  A cause of action accrues when “some” damage has resulted from the alleged malpractice.  Id. (quotation omitted).  “Some” damage materializes upon the “occurrence of any compensable damage, whether specifically identified in the complaint or not.”  Antone v. Mirviss, 720 N.W.2d 331, 336 (Minn. 2006).  Thus, the district court correctly found that appellant suffered “some” harm on June 19, 1998, when appellant “lost both legal and physical custody of his son and he was ordered to pay $873 monthly for child support.”  Moreover, respondent Duffy’s failure to raise the issue of judicial bias to the district court through a motion for new trial inflicted further  harm upon appellant’s legal interests.  Thus, on June 19, 1998, sufficient evidence of damage existed to allow appellant to withstand a motion to dismiss for failure to state a claim upon which relief can be granted.  Appellant’s malpractice action, commenced on April 14, 2005, is thus barred by the six-year statute of limitations.[1]

But appellant argues that the ex parte communications violated his right to due process, rendering the judgment void.  Because a void judgment is legally ineffective, Mesenbourg v. Mesenbourg, 538 N.W.2d 489, 494 (Minn. App. 1995), appellant claims he did not suffer harm until April 20, 1999—the date this court affirmed his appeal on the merits.  Holtan, 1999 WL 231677 at *7.  Appellant’s argument is unpersuasive.

“A void judgment is one rendered in the absence of jurisdiction over the subject matter or the parties.”  Matson v. Matson, 310 N.W.2d 502, 506 (Minn. 1981).  But appellant does not claim that the district court lacked subject-matter or personal jurisdiction.  Nor does appellant cite any binding authority supporting the proposition that the appearance of judicial bias voids a judgment.  Accordingly, we find no merit in appellant’s position.



[1]  We are aware of the supreme court’s decision in Noske v. Friedberg, 670 N.W.2d 740 (Minn. 2003), wherein the court held that the legal malpractice cause of action against a criminal defense attorney did not accrue until the client obtained habeas corpus relief from the underlying criminal conviction.  For at least two reasons, Noske does not dictate a different result.  First, the supreme court in Noske held that a criminal defendant is not permitted to collaterally attack his criminal conviction in a civil proceeding.  640 N.W.2d at 744.  As such, a cause of action for attorney malpractice could not accrue until the plaintiff’s criminal conviction was overturned.  Id.  Only then could the plaintiff present sufficient evidence tending to prove but-for causation.  Id.  But here, the issue is not the presence of but-for causation; the issue is the occurrence of compensable damage, and that damage plainly occurred when the trial court issued its June 19, 1998 order.  At that point, appellant’s claim could have survived a rule 12.02 motion to dismiss.  In addition, there is no general policy preventing appellant from collaterally attacking a custody judgment.  For all these reasons, we conclude that the supreme court’s reasoning and analysis in Antone and Herrmann are dispositive of the statute-of-limitations issue presented here.