This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1994).
STATE OF MINNESOTA
IN COURT OF APPEALS
Jerald W. Boitnott,
Filed September 17, 1996
Toussaint, Chief Judge
Hennepin County District Court
File No. 9123404
John G. Westrick, Westrick & McDowall-Nix, P.L.L.P., 400 Minnesota Building, 46 East Fourth Street, St. Paul, MN 55101 (for appellant)
Kevin J. Short, 333 South Seventh Street, Minneapolis, MN 55402 Suite 2890 (for respondent)
Considered and decided by Amundson, Presiding Judge, Toussaint, Chief Judge, and Peterson, Judge.
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
Appellant Jerald Boitnott challenges the district court order granting summary judgment in favor of respondent Craig Cascarano, denying Boitnott's claim of legal malpractice arising from Cascarano's representation of Boitnott in a drug offense proceeding, a tax assessment challenge, and a murder trial. Because we find no genuine issue of material fact precluding summary judgment, we affirm.
D E C I S I O N
On appeal from summary judgment, we determine whether genuine issues of material fact exist and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). In doing so, we view the evidence in the light most favorable to the party against whom the motion was granted, and we must resolve all doubts and factual inferences in favor of the nonmoving party. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988).
To establish a claim of legal malpractice, a plaintiff must demonstrate (1) the existence of an attorney-client relationship, (2) acts constituting negligence or breach of contract, (3) that those acts were the proximate cause of the plaintiff's damages, and (4) that but for the defendant's conduct the plaintiff would have succeeded in the prosecution or defense of the action. Blue Water Corp. v. O'Toole, 336 N.W.2d 279, 281 (Minn. 1983). A plaintiff should submit expert testimony to establish the standard of care applicable to the attorney except where the jury otherwise can evaluate the relevant conduct. Hill v. Okay Constr., 312 Minn. 324, 337, 252 N.W.2d 107, 116 (1977). The issue of causation is generally a fact question, but causation becomes a question of law where different minds can reasonably arrive at only one result. Friesen's, Inc. v. Larson, 438 N.W.2d 444, 446 (Minn. App. 1989), rev'd on other grounds, 443 N.W.2d 830 (Minn. 1989). Failure to prove any one element of a legal malpractice claim defeats recovery. Blue Water, 336 N.W.2d at 282.
I. Federal drug offense representation.
Boitnott alleges that Cascarano negligently represented him in a federal drug proceeding by failing to obtain $4,409 in funds that the federal court ordered returned to him, and Boitnott claims that Cascarano's failure to act diligently was the proximate cause of the money being seized by the state. The record does not support Boitnott's claims.
In granting summary judgment, the district court noted that Boitnott's requests to obtain the funds are irrelevant if Cascarano's efforts would have failed as a matter of law. The record includes a notice of levy dated April 28, 1987, establishing a lien in the amount of $317,800 on Boitnott's property. Further, the affidavit of Chris Sanft, an enforcement officer for the Minnesota Department of Revenue, evidences that he served a notice of levy on the U.S. Marshal's Service, seizing all monies in the marshal's possession belonging to Boitnott. That levy states that failure to comply "will result in personal liability, and imposition of a 25 percent penalty." Boitnott's claim fails because he offers no specific evidence to refute Sanft's statement that he filed the levy or to support his own allegation that the marshal's service would have handed over the funds to him in violation of the notice of levy. SeeNicollet Restoration v. City of St. Paul, 533 N.W.2d 845, 848 (Minn. 1995) ("Speculation, general assertions, and promises to produce evidence at trial are not sufficient to create a genuine issue of material fact for trial.").
II. Grass Tax challenge.
Boitnott makes two malpractice claims in relation to Cascarano's handling of the Controlled Substance Tax (Grass Tax) challenge: First, Boitnott argues that Cascarano's inactivity was the proximate cause of Boitnott's loss and the "but for" cause of his lost opportunity to challenge the tax on other grounds. Again, the record does not support Boitnoitt's claims.
Boitnott argues that Cascarano deviated from an attorney's standard of care by failing to answer discovery and by failing to keep Boitnott advised of the status of his case. The record reveals that the Lawyers Professional Responsibility Board admonished Cascarano for that conduct.
Nevertheless, Boitnott's speculation that "grounds to challenge the assessment may exist" and that proper actions "may" have made a difference is insufficient to satisfy the causation requirement. SeeNicollet Restoration, 533 N.W.2d at 848 (holding that speculation is insufficient to create a genuine issue of material fact). After Cascarano filed the appeal challenging the Grass Tax, the supreme court upheld the constitutionality of the statute, Sisson v. Triplett, 428 N.W.2d 565 (Minn. 1988), and Boitnott refused a settlement that would have reduced his tax liability. Even Boitnott conceded that "[Cascarano's] inaction in the matter may have been justified."
Second, Boitnott challenges Cascarano's $5,000 fee. He contends Cascarano breached his fiduciary duty by failing to enter a written fee agreement and must return the excess payment after deducting an hourly fee. SeeIn re Lochow, 469 N.W.2d 91, 98 (Minn. 1991) (holding that retainers must be placed in trust accounts with withdrawals being made after the performance of services). The record here indicates that Cascarano performed the agreed services of filing a challenge to the Grass Tax and negotiating a settlement also would have cost more. We hold that the district court's conclusion that the fee agreement was reasonable is supported by the record. SeeKrueger v. State Dep't of Highways, 295 Minn. 514, 516-17, 202 N.W.2d 873, 876 (1972) (holding that unwritten contingent-fee agreement was not as a matter of law unreasonable even though the time and effort devoted to the claim were not extensive or difficult where services were performed and materially contributed to the most favorable result on the client's behalf).
III. Murder representation.
Boitnott also raises two complaints against Cascarano arising from his defense of murder and assault charges against Boitnott. First, Boitnott claims Cascarano failed to advise him of a potential plea to second-degree murder. Second, Boitnott contends Cascarano breached a duty by mishandling monies paid for his defense.
Boitnott maintains Cascarano mishandled the plea negotiations, his conduct proximately caused Boitnott to lose the opportunity to minimize his criminal record and fees, and "but for" Cascarano's conduct Boitnott would have accepted a second-degree plea offer. The record, however, contains no probative evidence to support Boitnott's argument. SeeAlbert v. Paper Calmenson & Co., 515 N.W.2d 59, 64 (Minn. App. 1994) ("To resist summary judgment, the evidence must be significantly probative, not merely colorable.").
Boitnott relies on (1) the fact that Cascarano received a larger fee because the case went to trial, (2) another attorney's affidavit stating that "[i]t appears from the record
Finally, Boitnott claims Cascarano mishandled expense monies received for the employment of a forensic expert and investigator, arguing that he never received an accounting of the funds and Cascarano never returned the excess funds. Absent clear error, this court will uphold the district court's findings on the reasonableness of attorney fees. Amerman v. Lakeland Dev. Corp., 295 Minn. 536, 537, 204 N.W.2d 400, 400-01 (1973). The record indicates that Cascarano properly utilized Boitnott's funds for experts to aid in his defense. The district court did not abuse its discretion by concluding that the alleged unreasonableness of Cascarano's fees is "without merit."
- * * that [Cascarano] was a barrier to effective plea negotiation," and (3) his wife's testimony that after the jury reached a guilty verdict she heard Cascarano say, "I should have taken the deal, he would only have done 100 months." The first two allegations are mere speculation. The record indicates that the victim's family did not want to accept a plea to second-degree murder, the state never offered Boitnott a plea bargain involving second-degree murder, and Boitnott rejected a plea bargain that would have involved pleading guilty to first-degree murder. Further, even if Cascarano stated that he "should have taken the deal," that statement is not sufficiently probative of Boitnott's claim that there was an offer involving a plea to second-degree murder.