This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. sec. 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-96-1194

Elroy Stock,

Appellant,

vs.

Siegel, Brill, Greupner, & Duffy, P.A.,

Respondent.

Filed December 17, 1996

Affirmed

Randall, Judge

Hennepin County District Court

File No. 95-17831

Susan E. Broin, Todd Young Law Firm, 1506 Pioneer Building, 336 North Robert Street, St. Paul, MN 55101 (for appellant).

Wood R. Foster, Jr., W. Christopher Penwell, Siegel, Brill, Greupner, & Duffy, P.A., 100 Washington Avenue South, Suite 1300, Minneapolis, MN 55401 (for respondent).

Considered and decided by Randall, Presiding Judge, Short, Judge, and Davies, Judge.

U N P U B L I S H E D O P I N I O N

RANDALL, Judge

Appellant argues the trial court erred in granting respondent's motion to dismiss or, alternatively, for summary judgment. Appellant claims a genuine issue of material exists regarding whether he would have prevailed on his claim had he proceeded to a jury trial instead of binding arbitration.

FACTS

Respondent had previously represented appellant in Ramsey County District Court on an employment related claim against West Publishing Company. During the course of representation, appellant entered into a Stipulation for Final Binding Arbitration. Following a four day hearing, the arbitrator, Robert J. Sheran, dismissed appellant's suit against West.

Appellant obtained new counsel and challenged the arbitration decision in district court. The district court affirmed the arbitrator's decision on November 24, 1992, and this court affirmed the district court the following August. Further review of that decision was denied by the supreme court on October 7, 1993.

In October 1995, appellant brought suit against respondent in Hennepin County District Court for legal malpractice, arguing that respondent failed to fully advise him of the consequences of entering into final binding arbitration. Appellant claims that his attorney presented him with the five page Stipulation For Final Binding Arbitration as he (appellant) was seated behind the wheel of his parked vehicle following a meeting with a potential expert witness. Appellant's attorney briefly explained what the document was and then asked him to sign it. Appellant asked his attorney what would happen if he disclosed the amount of the settlement awarded by the arbitrator. His attorney informed him that there could be severe sanctions if he disclosed the amount. Appellant then signed the stipulation. Appellant argues now that had his attorney fully informed of the consequences of entering into final binding arbitration he would never have agreed to it.

Respondent moved to dismiss appellant's complaint or, in the alternative, for summary judgment. The trial court granted respondent's motion for summary judgment on February 28, 1996, and with an amended Order for Judgment on March 6, 1996. This appeal follows.

D E C I S I O N

On appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether the lower court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The evidence must be viewed in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). The party opposing a summary judgment motion cannot rely upon mere general statements of fact, but instead must demonstrate that specific facts are in existence that create a genuine issue for trial. Hunt v. IBM Mid Am. Employees Fed. Credit Union, 384 N.W.2d 853, 855 (Minn. 1986).

I.

In a legal malpractice claim, a plaintiff must prove four elements: (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 attorney's negligence the plaintiff would have been successful in the prosecution of the action. Blue Water Corp., Inc. v. O'Toole, 336 N.W.2d 279, 281 (Minn. 1983). The failure to prove any one of the elements defeats recovery. Id.

Both sides agree that an attorney-client relationship existed between appellant and SBGD. Appellant argues that SBGD breached its professional duty when it failed to fully inform him of the consequences of entering into the agreement for final binding arbitration. Appellant contends that had he been fully informed of these consequences he would have never agreed to the arbitration. "Consequences" would include without limitation, no jury trial, and only a limited right of appeal.

When bringing a legal malpractice claim, a plaintiff must present evidence of the applicable standard of care and that the standard was breached. Wartnick v. Moss & Barnett, 490 N.W.2d 108, 116 (Minn. 1992). An attorney is bound to exercise that degree of care and skill that is reasonable under the circumstances, considering the nature of the undertaking. Prawer v. Essling, 282 N.W.2d 493, 495 (Minn. 1979). The attorney's conduct must be

appraised in the light of all the surrounding circumstances existing prior to and during the course of such [representation] and not solely according to an omniscience of hindsight gained after [representation] has been completed.

Hulstrand, Anderson, Larson & Boyland v. Rogers, 386 N.W.2d 302, 304 (Minn. App. 1986), (quoting Meagher v. Kavli, 256 Minn. 54, 57, 97 N.W.2d 370, 373 (1959), review denied (Minn. June 19, 1986). "Generally expert testimony is required to establish these issues, unless the conduct can be evaluated by a jury in the absence of expert testimony." Wartnick, 490 N.W.2d at 116.

In Minnesota, "[a]n attorney must impart to the client information which affects the client's interests." Padco, Inc. v. Kinney & Lange, 444 N.W.2d 889, 891 (Minn. App. 1989) (citation omitted), review denied (Minn. Nov. 15, 1989). This responsibility is recognized by Rule 1.4(b) of the Minnesota Rules of Professional Conduct which provides, "[a] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation."

Appellant introduced an affidavit and report by Theodore Schneyer, a professor of law at the University of Arizona College of Law, regarding the applicable standard of care and whether it had been breached. Schneyer concluded SBGD breached a professional standard of care by failing to adequately explain to appellant the implications of signing the stipulation for final binding arbitration. Relying on Rule 1.4(b) of the Minnesota Rules of Professional Conduct, it was Schneyer's opinion that "lawyers of good standing would not allow a client in [appellant's] position to sign a binding arbitration agreement 'without explaining [the] matter to the extent reasonably necessary to permit the client to make [an] informed decision.'"

The trial court rejected Schneyer's opinion and concluded that under the circumstances SBGD did not have a duty to advise appellant of the implications of entering into final binding arbitration. The trial court found appellant was cognizant of the content and effect of the stipulation and that because appellant understood the provisions of the document, "SBGD had no further professional or contractual duty to advise appellant regarding the ramifications of executing the Agreement."

Schneyer's opinion begs the question as to what constitutes an "informed decision." It is undisputed that appellant had the chance to review the document before signing it, that his name appears below verification language indicating he reviewed the document and signed it of his own free will, and that appellant was free to ask questions regarding the terms of the arbitration agreement and its consequences, if he had any. Appellant has never argued in this appeal or his previous appeal to this court that he did not understand the terms of the document or that such terms were unconscionable. The stipulation language is unambiguous. It states that the parties were submitting to final binding arbitration, that the arbitrator could consider all issues of law and fact raised by the parties, and that such determinations would be final and unappealable by either party. Thus, the trial court found, "all available evidence points to the fact that [appellant] was cognizant of the content and effect of the Stipulation agreement he signed."

We understand appellant's concern with the shortness of the explanation he claims he received from his attorney before signing the stipulation to enter into final binding arbitration. But, absent fraud, mistake, misrepresentation or deceit, or unconscionable terms, a party who executes a contract cannot avoid it on the ground that he did not read it thoroughly or thought its terms were different from what it said. State Bank of Hamburg v. Stoeckmann, 417 N.W.2d 113, 118 (Minn. App. 1987), review denied (Minn. Feb. 17, 1988); Huseman v. Life Ins. Co. of North Am., 402 N.W.2d 618, 620 (Minn. App. 1987).

The law assumes people read and understand what they sign. Appellant does not claim that he did not understand the document terms or that he was misled by his attorney. Appellant agrees that he signed the document of his own volition. Appellant does not allege that he was coerced or signed it under duress.

Even assuming that SBGD was negligent, appellant must still show that this breach was the proximate cause of an injury. In a legal malpractice case, proximate cause is the same as in ordinary negligence cases. Raske v. Gavin, 438 N.W.2d 704, 706 (Minn. App. 1989), review denied (Minn. June 21, 1989). Proximate cause is defined as follows

For negligence to be the proximate cause of an injury, it must appear that if the act is one which the party ought, in the exercise of ordinary care, to have anticipated was likely to result in injury to others, then he is liable for any injury proximately resulting from it, even though he could not have anticipated the particular injury which did happen.

Wartnick, 490 N.W.2d at 113 (quoting Ponticas v. K.M.S. Investments, 331 N.W.2d 907, 915 (Minn. 1983)). Ordinarily, the issue of proximate cause is a question of fact for the jury to decide. Vanderweyst v. Langford, 303 Minn. 575, 576, 228 N.W.2d 271, 272 (1975). "However, proximate cause can be decided as a matter of law where reasonable minds can arrive at only one conclusion." Raske, 438 N.W.2d at 706 (citation omitted).

"The mere fact that appellant lost his case does not establish negligence." Hulstrand, 386 N.W.2d at 304. A plaintiff in a legal malpractice case must show not only a violation by a lawyer of the professional standards of due care and ethical conduct, but also that, "but for this violation, some distinct advantage would have been obtained by the plaintiff-client." Yusefzadeh v. Ross, 932 F.2d 1262, 1264 (8th Cir. 1991). Appellant argues that had he been fully informed of the consequences of entering into final binding arbitration, he would have rejected arbitration in favor of a jury trial, and would have had a better chance of winning. We disagree. Appellant concedes that he gained a distinct advantage by going through arbitration, given the fact that arbitration opened up to appellant the right to argue issues that the trial court had previously dismissed in favor of respondent.

Speculatively, a jury could have found in favor of appellant. But it is equally possible that the jury would have rendered a verdict against him. Any such conclusion on what a jury might have done, on this record, would be speculation. See Padco, 444 N.W.2d at 891 (holding summary judgment for attorney appropriate where any claimed damages are speculative). The arbitration case was fully tried before a respected neutral who both sides agreed to.

The trial court noted that appellant, in hindsight, is unhappy with the arbitrator's decision denying him relief. The supreme court has made clear it disapproves

of allowing a client who has become dissatisfied with a settlement to recover against an attorney solely on the ground that a jury might have awarded him more than the settlement.

Rouse v. Dunkley & Bennett, P.A., 520 N.W.2d 406, 410 n.6 (Minn. 1994) (citing Glenna v. Sullivan, 310 Minn. 162, 170, 245 N.W.2d 869, 873 (1976). The same is true in final binding arbitration.

Assuming for the sake of argument that SBGD breached a professional duty of due care by failing to advise appellant of the consequences of entering into final binding arbitration rather than proceeding to a jury trial, it is questionable whether appellant would have fared any better before a jury. Appellant has not argued, either on appeal or before the trial court, that SBGD failed to put forth the best possible case for appellant. Appellant does not argue this is a case in which his claim against West was lost due to attorney negligence. Appellant had the opportunity to present his case against West in full, including issues and matters previously dismissed by the trial court, before a qualified arbitrator. This fact was acknowledged by appellant's expert when he stated that there were potential advantages to pursuing arbitration, "not the least of which was the reinstatement of claims on which the trial court had already granted West partial summary judgment." Appellant cannot argue he did not receive a day in court.

We conclude there are no genuine issues of material fact that require a new trial. The record is clear appellant reviewed the arbitration agreement and signed it of his own volition. The terms of the agreement are clear. Accordingly, we cannot say the trial court erred in granting summary judgment for SBGD.

II.

Because we rule for respondent on other grounds, we do not address the remaining issues raised by respondent.

Affirmed.