This opinion will be unpublished and

may not be cited except as provided by

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




Mary Kay Phillips, et al.,



Fredric A. Bremseth, et al.,


Filed September 2, 1997


Foley, Judge


Hennepin County District Court

File No. 965942

James C. Wicka, Leanne G. Litfin, Jeffrey M. Ellis, Messerli & Kramer, P.A., 1800 Fifth Street Towers, 150 South Fifth Street, Minneapolis, MN 55402 (for Appellants)

Paul C. Peterson, William L. Davidson, Lind, Jensen & Sullivan, 1700 Fifth Street Towers, 150 South Fifth Street, Minneapolis, MN 55402 (for Respondents)

Considered and decided by Parker, Presiding Judge, Davies, Judge, and Foley, Judge.


FOLEY, Judge

Appellants challenge the district court's grant of summary judgment to respondents on appellants' claim of legal malpractice. We affirm.


In January 1992, appellant Mary Kay Phillips slipped and fell in a parking lot owned by Julia Mason and leased by Dan Johnson's Suburban Dry Cleaners. In April 1992, appellants, Scott and Mary Kay Phillips, hired respondents, Doshan & Bremseth, to represent them in a claim against Mason and Johnson to recover damages for injuries Phillips sustained in the fall. Respondents commenced a lawsuit against Mason and Johnson alleging negligent maintenance and negligent design of the parking lot.

In May 1995, appellants discharged respondents as legal counsel and hired their current counsel. The district court awarded partial summary judgment in favor of Johnson and Mason on appellants' negligent design claim, concluding that the claim was barred by the statute of limitations. Thereafter, the district court allowed appellants to amend their complaint to join respondents in the underlying action; appellants alleged legal malpractice and consumer fraud against their former attorneys. The district court granted respondents' motion to dismiss appellants' legal malpractice and consumer fraud claims as premature because of appellants' remaining negligence claims against Johnson and Mason. Thereafter, the district court granted summary judgment to Johnson and Mason on the remaining negligence claims.

Appellants then brought this action against respondents for legal malpractice for allegedly mishandling their negligent design and construction claim against Johnson and Mason. Appellants contend that respondents were negligent for failing to file their defective design claim within the applicable statute of limitations.

The district court granted respondents' motion for summary judgment, concluding that appellants failed to establish two of the four elements required to establish a legal malpractice claim. Thereafter, appellants requested that the district court stay entry of judgment in order to allow appellants to supplement the record with an expert affidavit. On November 20, 1996, the district court issued an order denying appellants' request.


On appeal from summary judgment this court determines (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 (Minn. 1990). We view the evidence in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). The essential facts of this case are not in dispute; appellants contest the district court's legal conclusion that their defective design claim was time barred.

I. Summary Judgment on Legal Malpractice Claim

Appellants claim that they lost a viable defective design claim because respondents failed to bring their claim within the statute of limitations. To prevail on a malpractice claim, a plaintiff must show: (1) an attorney-client relationship existed; (2) the attorney acted negligently or in breach of contract; (3) such acts were the proximate cause of the plaintiff's damages; and (4) but for the attorney's conduct, the plaintiff would have been successful in the prosecution of his or her underlying claim. Togstad v. Vesely, Otto, Miller & Keefe, 291 N.W.2d 686, 692 (Minn. 1980). Failure of proof on any one element defeats recovery. Godbout v. Norton, 262 N.W.2d 374, 376 (Minn. 1977).

The parties do not dispute that the first two elements are satisfied. The district court granted summary judgment in favor of respondents based on the court's finding that appellants failed to establish the third and fourth elements. The district court concluded that respondents' conduct was not the proximate cause of Mary Kay Phillips' injuries because her defective design claim was time barred before respondents were retained as counsel. Additionally, the district court found that appellants failed to present evidence that the parking lot was defectively designed and therefore did not demonstrate that appellants would have achieved a better result absent respondents' alleged negligence.

A. Statute of Repose

Appellants contend that the district court erred in granting summary judgment on their legal malpractice claim because their underlying defective design claim was time barred under Minn. Stat. § 541.051 (1996). Pursuant to the statute, a plaintiff's claim for personal injury arising from a defective and unsafe improvement to real property is time-barred if not commenced within ten years after completion of an "improvement" to the property. Minn. Stat. § 541.051, subd. 1(a). Construction of a statute of limitation is a question of law that this court reviews de novo. Sarafolean v. Kauffman, 547 N.W.2d 417, 419 (Minn. App. 1996), review denied (Minn. July 10, 1996). Minn. Stat. § 541.051, subd. 1(a), provides:

Except where fraud is involved, no action by any person * * * to recover damages * * * for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of the injury, shall be brought against any person performing or furnishing the design, planning, supervision, materials, or observation of construction or construction of the improvement to real property or against the owner of the real property more than two years after discovery the discovery of the injury * * *, nor, in any event shall such a cause of action accrue more than ten years after substantial completion of the construction.

(Emphasis added.)

Appellants contend that their underlying defective design claim against Johnson and Mason was not time barred because the parking lot had been resurfaced in 1988 and this resurfacing constituted an "improvement" for purposes of the statute of repose. An "improvement to real property" is defined as:

[A] permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs.

Pacific Indem. Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548, 554 (Minn. 1977) (citations omitted). Courts use a "common sense" approach when interpreting whether something constitutes an improvement to real property under the statute. Williams v. Tweed, 520 N.W.2d 515, 518 (Minn. App. 1994) (citing Pacific Indem. Co., 260 N.W.2d at 554), review denied (Minn. Oct. 27, 1994) .

In support of their contention that resurfacing of the parking lot constituted an improvement to real property, appellants cite this court's unpublished opinion in LaFave v. Frankfort Township, No. C0-96-1485 (Minn. App. Jan 28, 1997). In LaFave, this court held that the blacktopping of a roadway constituted an improvement to real property. LaFave, as an unpublished opinion, however, is not precedential and is of limited value in deciding this appeal. See Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 801 (Minn. App. 1993) (unpublished decisions are not precedential). Additionally, we note that while blacktopping a roadway improves the function and safety of a road, the resurfacing of a parking lot merely improves the aesthetic quality, but not the basic function, of the parking lot.

Appellants also claim that resurfacing of the parking lot was an improvement to real property because the resurfacing material was permanently affixed to the parking lot's surface. Applying a "common sense" approach to the facts of this case, we conclude that the resurfacing of the parking lot was merely a repair, rather than an improvement. Although the resurfacing of the parking lot may have been a permanent alteration, resurfacing of the parking lot merely restored, rather than enhanced, the value of the parking lot. See Hartford Fire Ins. Co. v. Westinghouse Elec. Corp., 450 N.W.2d 183, 186 (Minn. App. 1990) (action that merely restores property value is an ordinary repair), review denied (Minn. Mar. 22, 1990). Therefore, we conclude that the district court properly determined that appellants' underlying cause of action for negligent design was time barred and granted summary judgment on appellants' legal malpractice claim.

Moreover, we conclude that even if the district court erred on the statute of repose issue, we would affirm. The district court granted summary judgment in favor of respondents based on the court's finding that appellants failed to satisfy the third and fourth element necessary to succeed on a legal malpractice claim. On appeal, appellants challenge only the district court's legal conclusion as to the third element of a malpractice claim. Because appellants failed to establish two of the four elements required for a legal malpractice claim, we affirm summary judgment in favor of respondents. See Godbout, 262 N.W.2d at 376 (failure to prove any one element defeats recovery).

B. Supplementation of Record

Appellants claim that the district court erred by refusing to supplement the record with an expert affidavit after summary judgment was ordered. "[T]he record does not remain open for the submission of new evidence after the trial court makes its order granting summary judgment." Midway Nat'l Bank v. Bollmeier, 462 N.W.2d 401, 404 (Minn. App. 1990) (citing Dalco Corp. v. Dixon, 338 N.W.2d 437, 440 (Minn. 1983)), aff'd, 474 N.W.2d 335 (Minn. 1991). Thus, the district court did not abuse its discretion by refusing to supplement the record. Accordingly, we also grant respondents' motion to strike from appellants' brief this affidavit and references to it. See Thiele v. Stich, 425 N.W.2d 580, 582-83 (Minn. 1988) (appellate review limited to district court record); Bohdan v. Alltool Mfg., Co., 411 N.W.2d 902, 906 (Minn. App. 1987) (appellate court need not consider affidavit submitted after district court ruled on summary judgment motion), review denied (Minn. Nov. 13, 1987).

II. Motion to Strike

Respondents move to strike certain statements from appellants' brief as allegedly unsupported by the record. See Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992) (stating reviewing court will strike portions of a party's brief that are not part of the appellate record), aff'd, 504 N.W.2d 758 (Minn. 1993); see also Minn. R. Civ. App. P. 110.01 (defining record on appeal). Because we sustain summary judgment, we need not consider the motion to strike.


[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.