This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-96-1575

Gerry C. DuBose,

Appellant,

vs.

Van Holston,

Respondent.

Filed February 11, 1997

Affirmed

Crippen, Judge

Dakota County District Court

File No. C0959388

Michael A. Pinotti, Michael A. Pinotti, Ltd., Suite 270, 203 East Little Canada Road, Little Canada, MN 55117-1300 (for Appellant)

Richard J. Thomas, Thomas H. Jensen, Burke & Thomas, Suite 101, 299 Coon Rapids Boulevard, Coon Rapids, MN 55433 (for Respondent)

Considered and decided by Kalitowski, Presiding Judge, Crippen, Judge, and Harten, Judge.

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

CRIPPEN, Judge

Appellant disputes the trial court's summary judgment for the defendant in a legal malpractice case. We affirm.

FACTS

In 1988, appellant suffered injuries at an International House of Pancakes restaurant when the handle from a coffee cup broke, spilling hot coffee onto his chest and lap. Represented by an attorney, he sued the pancake house and the cup manufacturer in a 1990 United States District Court action. Respondent, also an attorney, represented appellant in the action after appellant fired the lawyer who commenced the action.

Shortly after appellant retained respondent, the defendants filed a motion to dismiss, alleging that appellant did not meet the $50,000 jurisdictional requirement for federal court. Respondent filed a memorandum in opposition but did not inform appellant of the pending motion. Along with the memorandum, respondent filed what he believed to be all medical information pertinent and helpful to appellant's claim available at that time. The federal trial court dismissed appellant's case without prejudice because it found that insufficient objective medical evidence existed to demonstrate that appellant suffered damages in excess of $50,000. DuBose v. International House of Pancakes, No. 3-89-Civ-153 (D. Minn. May 8, 1992), aff'd mem. 989 F.2d 504 (8th Cir. 1993).

Dissatisfied with the federal court's dismissal of his claim, appellant brought an action against respondent for legal malpractice. Appellant alleged that respondent failed to introduce admissible evidence that would have established his permanent disability and loss of future earning capacity and would have satisfied the $50,000 jurisdictional requirement. Appellant argued that respondent should have retained a vocational expert and submitted a deposition of appellant's doctor. Appellant also complained that respondent did not inform him of the pending motion to dismiss until the federal trial court already had dismissed the action.

The trial court granted respondent's motion for summary judgment and found that appellant failed to submit sufficient evidence that he would have prevailed in federal court "but for" respondent's conduct. The trial court also found that the omitted evidence would have undermined, rather than bolstered, appellant's personal injury claims.

D E C I S I O N

On review of a summary judgment, this court must determine whether there are any genuine issues of material fact and whether the trial court correctly applied the law. Minn. R. Civ. P. 56.03; Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). The facts must be viewed in the light most favorable to the party against whom summary judgment was granted. Grondahl v. Bulluck, 318 N.W.2d 240, 242 (Minn. 1982). Furthermore, the party against whom summary judgment was granted may not rely on mere general statements of fact or conclusory allegations as to its rights, but must demonstrate at the time the motion is made that specific facts exist to create genuine issues for trial. Mickelson v. Travelers Ins. Co., 491 N.W.2d 303, 306 (Minn. App. 1992).

To prevail in a legal malpractice action, a plaintiff must prove not only an attorney-client relationship, fault of the lawyer, and causation respecting his damages, but also that but for the attorney's conduct, the plaintiff would have been successful in the action. Blue Water Corp. v. O'Toole, 336 N.W.2d 279, 281 (Minn. 1983). Failure to prove this or any other element defeats the plaintiff's case. Id. at 282.

Appellant claims that respondent should have submitted: (1) a deposition by appellant's doctor indicating that he "should be awarded a substantial recovery"; (2) an affidavit by appellant outlining his pain; and (3) an affidavit from a "vocational expert" outlining appellant's lost income and loss of future earning capacity.

Based on the material it had available, the federal district court determined that appellant failed to produce sufficient objective medical evidence to satisfy its jurisdictional requirement. In an unpublished disposition, the Eighth Circuit Court of Appeals found that only "one of the seven [physicians] consulted, [appellant's physician,] prepared a report that could arguably support [appellant's] story" but determined that his report was insufficient as a matter of law. DuBose v. International House of Pancakes, No. 92-2351, 1993 WL 83423, at **2 (8th Cir. Mar. 25, 1993). The Eighth Circuit found, as did the state trial court, that much of that doctor's testimony undermined appellant's claims of quantifiable damages exceeding $50,000. Id.

The Eighth Circuit also considered the fact that the trial court had the opportunity to consider appellant's deposition and found that unsubstantiated subjective allegations were insufficient as a matter of law. Id. There is no indication that a separate affidavit would have added any "objective indicia of pain or suffering" as required by the federal court. Id. Finally, there appears to be little indication that the "vocational expert" could have added anything to appellant's damages. The Eighth Circuit noted that appellant stated in his deposition that although he had considered returning to a teaching or coaching job, he "had not finalized any work plans at the time of the accident" and the court found, "[a]fter scouring the record," no evidence to suggest that the coffee spill disabled appellant "from continuing the work of managing his investments -- his income-generating activity at the time of the spill." Id. Any evidence offered from a vocational expert would have been based on the assumption that appellant would have pursued a vocation other than managing his investments, a conclusion that the federal courts found to be insufficient for purposes of determining the jurisdictional amount.

To survive a summary judgment motion in the circumstances of this case, appellant had to show that he would have survived the dismissal motion in the federal case. Rouse v. Dunkley & Bennett, P.A., 520 N.W.2d 406, 410 (Minn. 1994) (demanding that plaintiff show he would have survived a summary judgment motion in the underlying action). In dismissing appellant's malpractice action by summary judgment, the trial court relied on Carlson v. Fredrikson & Byron, P.A., 475 N.W.2d 882, 886 (Minn. App. 1991), review denied (Minn. Oct. 31, 1991), which requires plaintiffs in attorney malpractice actions to show that they would have obtained a "better" result in the underlying claim "but for" the attorney's conduct. Appellant contends that the Rouse test is somewhat less demanding, but we need not explore this argument because appellant's claims fail under both Carlson and Rouse. In the present case, none of the additional information that respondent failed to submit to the federal trial court would have established the objective medical evidence that was demanded by the federal courts.

Affirmed.