This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Kevin T. Duffy, Esq., et al.,
Filed June 5, 2007
Pennington County District Court
File No. C4-05-422
Keith D. Johnson, Law Offices of
Keith D. Johnson, P.L.L.C.,
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.”
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
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 (
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.
position is supported by the relevant caselaw.
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 (
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 (
 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.