This opinion will be unpublished and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
Richard J. Haefele,
Kimberly Franson, et al.,
Karina Van Beusekom d/b/a Auntie Mur’s Attic,
Filed June 26, 2007
Hennepin County District Court
File No. 27-CV-05-011198
Michael J. Tomsche, Bryan B. Carroll, Tomsche, Sonnesyn & Tomsche, P.A., 610 Ottawa Avenue North, Minneapolis, MN 55422 (for respondent)
Alfred M. Stanbury, Stanbury Law
Considered and decided by Peterson, Presiding Judge; Shumaker, Judge; and Ross, Judge.
U N P U B L I S H E D O P I N I O N
Appellants challenge the district court’s orders granting summary judgment and dismissing their claims, arguing that the district court erred by (1) granting summary judgment on claims for legal malpractice, defamation, and punitive damages; (2) dismissing a breach-of-contract claim; and (3) dismissing a breach-of-fiduciary-duty claim. Appellants also argue that the district court abused its discretion in procedural matters and in its discovery orders. Because the record supports the district court’s summary judgment and dismissal of appellants’ claims, and because the district court did not abuse its discretion procedurally during the litigation, we affirm.
Respondent attorney Richard Haefele owned residential and commercial property. Appellant Kimberly Franson lived in one of Haefele’s buildings, and she and her business partner, Karina Van Beusekom, operated a retail business in another. Both occupancies were under oral leases.
After her aunt died, Franson was appointed personal representative of the decedent’s estate. During the probate administration, Franson had the roof on the decedent’s home replaced. When the new roof leaked and caused mold damage to the house, Franson hired Haefele to sue the roofing company. When Franson later decided to assert a personal-injury claim for illness from the mold in the buildings she leased from Haefele, he withdrew from the case.
Haefele then sued Franson, as personal representative of her aunt’s estate, for fees incurred in the roof litigation, and Franson and Van Beusekom for unpaid rent. Franson and Van Beusekom counterclaimed for damages for breach of contract, professional negligence, breach of fiduciary duty, defamation, and interference with business relations, and they sought punitive damages.
The district court initially granted summary judgment in favor of Haefele on the claim of professional negligence, punitive damages, and some counts of defamation. Later, the court dismissed all remaining claims, and this appeal followed in which the appellants allege various errors of law and abuse of discretion as to discovery.
D E C I S I O N
1. Summary Judgment
Appellants challenge the district court’s summary judgment dismissing their legal malpractice, defamation, and punitive-damages claims.
“On appeal from summary judgment, we
ask two questions: (1) whether there are any genuine issues of material fact
and (2) whether the [district] court erred in [its] application of the
law.” State by Cooper v. French, 460 N.W.2d 2, 4 (
Summary judgment is appropriate “when the pleadings,
depositions, answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue of material fact
and that either party is entitled to a judgment as a matter of law.” Fabio
v. Bellomo, 504 N.W.2d 758, 761 (
Franson contends that Haefele
committed professional negligence in his handling of the roofing litigation. A professional-negligence claim against an
attorney is ordinarily not sustainable absent expert evidence to support
v. Okay Constr. Co., 312
Franson did not comply with the requirement of the initial expert affidavit. Nor did she comply with the court’s scheduling order requiring disclosure of her expert. In response to Haefele’s motion for summary judgment for noncompliance with the expert-disclosure requirement, the court denied the motion on the condition that Franson remedy the defect by serving the requisite affidavit by August 15, 2005. Franson’s counsel served and filed an affidavit respecting expert evidence, but did not provide the information required by the second mandatory affidavit.
Haefele moved for summary judgment again for noncompliance with the expert-disclosure requirement. The court noted that “despite the extraordinary delay” in disclosing expert information, the time limit had previously been extended for good cause, and “the parties face a . . . discovery deadline” and Franson had not yet complied with the request for expert disclosure under the discovery rules, aside from the statutory requirement. So, the court denied the motion to allow the completion of discovery. But the court ordered full compliance with the statutory mandate by January 3, 2006, a date that the court on its own extended to January 13.
On January 13, 2006, Franson’s attorney served and filed an affidavit of expert identification that disclosed the identity of the attorney to be called to testify to Haefele’s negligence. But as to the substance of the facts and opinions to which the expert would testify, the affidavit indicated only that he would describe “the ways in which and the extent to which . . . Haefele compromised the Estate’s construction/property damage claim from an evidentiary standpoint” in the roofing litigation. And as to the grounds for the expert opinion, the affidavit recited the expert’s “experience as an attorney of twenty years and his personal knowledge of what . . . Haefele did and failed to do while representing” Franson in the roofing litigation. Franson did not provide any additional information in response to the expert-discovery request.
Haefele again moved for summary judgment as to the negligence claim and all other claims. Noting the lengthy history of the effort to obtain expert disclosure in compliance with the statute and discovery, the court ruled the disclosure inadequate and granted the motion dismissing the negligence claim.
Franson argues that the dismissal
was error because she complied with the disclosure deadline and that placed her
within the “safe harbor” protection of Minn. Stat. § 544.42, subd. 6(1) (2006). Franson appears to assert that she sufficiently
complied with the disclosure requirements because she filed an affidavit
identifying her expert. But she failed
to specify anything about the expert’s opinions, except in the most general
sense; about the facts the expert would rely on; about the actual substance of
his opinions; and about the particular bases of his opinion, including the
manner in which the standard of care (which is not identified) was
breached. The court found the affidavit
to be cursory and vague and, as such, fatally defective. We agree.
Both the statute and the discovery requests contemplate enough
specificity so that the attorney charged with negligence can have an
understanding of the ways in which it is claimed that he breached the standard
of care and what facts support that conclusion.
Franson contends that, during the
attorney-client relationship, Haefele made defamatory statements about her to
his girlfriend and wrote a defamatory letter to Stanley and John Franson, who
were beneficiaries of Franson’s aunt’s estate.
The district court also noted the issue of an allegedly defamatory
letter to attorney Thomas Conlin, but that matter is not argued on appeal and
we need not address it. Melina v. Chaplin, 327 N.W.2d 19, 20 (
Haefele argues that the defamation
claims are barred by the applicable two-year statute of limitations. Minn. Stat. § 541.07, subd. 1 (2006). In the district court, Franson conceded the
applicability of the statute but contended that the period was tolled by
Haefele’s fraudulent concealment of the defamatory statements. Wild v.
There is authority in a different
type of case that when information is fraudulently concealed from a client
during an attorney-client relationship, the client need not show an affirmative
act of concealment to toll the statute of limitations. Cohen
v. Appert, 463 N.W.2d 787, 790 (
respect to an allegedly defamatory letter Haefele sent to beneficiaries of
Franson’s aunt’s estate, the court held that the statements were published in
the course of a judicial proceeding and thus were absolutely privileged. Dorn v.
Peterson, 512 N.W.2d 902, 906 (
Franson also challenges the district court’s dismissal of her claim for punitive damages relating to Franson’s alleged mold exposure in Haefele’s buildings. The district court ordered summary judgment because Franson did not make any showing that she was harmed as a result of the alleged exposure, and consequently punitive damages are not recoverable.
Franson argues that the record is sufficient to support her claim for punitive damages and relies on the construction-defect complaint Haefele drafted in which he alleged that Franson suffered harm from mold exposure. She contends that this shows that Haefele knew that she was susceptible to harm from mold exposure and that he intentionally disregarded her well-being by allowing her to live and conduct business in mold-contaminated buildings. Allegations in a complaint are not evidence and surely do not obviate the need for medical evidence of injury and causation. Dyrdal, 689 N.W.2d at 783.
Although Franson asserted a claim for damages resulting from mold
exposure in Haefele’s buildings, she did not submit any evidence, other than
her own allegations, that the alleged mold exposure caused her harm. But a showing “of a causal connection must be
something more than merely consistent with the plaintiff’s theory of the
case.” Bernloehr v. Cent. Livestock Order Buying Co., 296
Franson presented no medical evidence linking the alleged mold exposure in Haefele’s buildings to her claimed harm. Her allegations alone are insufficient to support her claim, and therefore she may not recover damages in any form from her alleged mold exposure, including punitive damages. See Minn. Stat. § 549.20, subd. 1(a) (2006) (allowing punitive damages only upon a showing that the defendant acted with “deliberate disregard for the rights or safety of others”). We, therefore, conclude that the district court properly granted summary judgment on Franson’s claim for punitive damages.
Breach of Contract
Franson also challenges the district court’s dismissal of her breach-of-contract claim, arguing that the statute of frauds does not render the parties’ oral agreement unenforceable.
The parties made an oral
agreement in October 2002 that Franson’s business would lease space from
Haefele beginning January 1, 2003, and ending January 1, 2004. The parties never reduced the agreement to
writing. In order to maintain an action
on an agreement, the statute of frauds requires written evidence of the
agreement if, by its terms, it is not to be performed within one year of its
Here, the parties orally agreed to a one-year lease to commence in the future. Under Jellett, the agreement must be in writing in order to be enforceable. Therefore, the district court did not err by holding that the parties’ oral lease was unenforceable and properly dismissed appellants’ claim on that ground.
The district court also provided an alternative ground for
dismissing Franson’s breach-of-contract claim, finding that Franson failed to
properly disclose information during discovery relating to her claimed
damages. The district court “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 (
The parties engaged in protracted discovery that included various sets of interrogatories. Franson claimed that her business suffered nearly $3,500,000 in damages because of the alleged breach of the oral lease. She refused to provide evidence to support her damage claim, stating that such information would be “inadmissible” or “would not tend to lead to the discovery of admissible evidence.” Despite her refusal to divulge sources used to calculate her alleged damages, she admitted that she possessed substantial information, but indicated she was still gathering the information. Franson never produced evidence of her damages, and only provided access to limited information two weeks before trial.
On this record, we cannot say that the district court abused its discretion by ruling that Franson failed to produce evidence of her claimed damages and that she failed to produce information during discovery. Franson’s breach-of-contract claim was properly dismissed on this ground as well as that noted above.
Breach of Fiduciary Duty
Franson also challenges the district court’s dismissal of her claim that Haefele breached a fiduciary duty. The district court held that a claim for breach of a fiduciary duty is only a defense to paying attorney fees, not an independent action for damages.
Although Rice precludes those who breach a fiduciary duty from recovering fees, it does not limit a plaintiff’s recovery. But here Franson claimed that Haefele breached a fiduciary duty and reflected that breach in her claims for professional negligence, breach of contract, and punitive damages. As we noted above, however, the district court properly dismissed those claims. Because Franson could not maintain the underlying claims, the district court properly dismissed the breach-of-fiduciary-duty claim.
Finally, Franson challenges the district court’s general handling of the case, arguing that it abused its discretion by allowing multiple summary-judgment motions, ignoring procedural rules, and by dismissing claims based on discovery violations.
We note that the district court has wide discretion to
issue discovery orders. Shetka, 454 N.W.2d at 921. The court also “has broad discretion to amend
scheduling-order deadlines.” Mercer v. Andersen, 715 N.W.2d 114, 123
We find nothing in the record suggesting that the district
court abused its discretion in any procedural matter. Haefele advanced good-faith legal bases in
his summary-judgment motions, and the district court properly granted partial
summary judgment on his third motion.
Additionally, there is nothing in the record showing that the district
court failed to follow procedure or prejudiced Franson by ignoring Haefele’s
alleged procedural abuses. Finally,
although the district court did not promise the parties that it would dismiss
certain claims for discovery violations, the district court has authority to
dismiss a cause of action on its own initiative for failure to follow the rules
of civil procedure or an order of the court.