This opinion will be unpublished and

may not be cited except as provided by

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




David A. Waage,



Linda M. Ojala, et al.,


Filed October 28, 1997


Harten, Judge

Hennepin County District Court

File No. 9515127

Phillip S. Resnick, Scott J. Seiler, Resnick & Seiler, P.L.L.P., 1925 Rand Tower, 527 Marquette Avenue South, Minneapolis, MN 55402 (for appellant)

Kay Nord Hunt, Stephen C. Rathke, Lommen, Nelson, Cole & Stageberg, P.A., 1800 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondents)

Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Harten, Judge.



David Waage appeals summary judgment in this legal malpractice action. We affirm.


In 1992, attorney Linda Ojala represented David Waage in a marriage dissolution action brought by Waage's former wife, Deborah Lysholm. Lysholm was represented by attorney Patricia Rettler. Lysholm had discussed with Peterson, another attorney, the possibility of bringing a tort action against Waage for spousal abuse. Peterson advised Rettler not to negotiate any dissolution settlement that would prevent Lysholm from bringing such tort action later. Although Lysholm now insists that she "would never have agreed to any term or provision in the marital dissolution action which would have prevented [her] from bringing the subsequent tort lawsuit," Lysholm never indicated to Waage or Ojala that she intended to bring a tort suit.

Throughout the dissolution proceedings, Waage told Ojala that he was concerned that Lysholm would bring a post-dissolution tort action against him. Ojala neither inquired about whether Lysholm planned to bring such post-dissolution action nor sought a release of future claims against Waage.

On the day of trial, Waage and Lysholm settled. They agreed that Waage would pay Lysholm $1,250 a month in spousal maintenance for five years, at which time a further determination would be made. The settlement terms were read into the record. The district court specifically asked if all assets had been disclosed. Neither Lysholm nor Rettler mentioned that Lysholm intended to bring a post-dissolution tort action. The district court then directed the parties to submit agreed upon proposed findings.

Rettler offered to set forth in the findings that the maintenance amount was based on marital abuse. On behalf of Waage, Ojala rejected that language because Waage had continually denied the abuse. The final judgment ultimately stated that "Petitioner suffers from certain psychological problems * * * which she contends are at least partially attributable to Respondent's physical and emotion[al] abuse of Petitioner."

Lysholm thereafter brought a tort action against Waage for battery, assault, intentional infliction of emotional distress, false imprisonment, and defamation. Waage moved for dismissal based on res judicata and collateral estoppel, which the district court denied without explanation. Waage and Lysholm reached a settlement in August 1996.

In September 1995, Waage brought a claim for legal malpractice against Ojala based on her failure to secure a waiver of future tort claims in the dissolution action. The district court granted summary judgment in favor of Ojala, concluding that because Lysholm would not have agreed to a waiver of future claims, Ojala was not negligent. The district court also found a lack of "but for" causation. In response to the motion for summary judgment, Waage brought a motion to amend the complaint to add a claim of legal malpractice for failing to inquire into the existence of any post-dissolution claims. The district court allowed the amendment and denied adverse summary judgment on the additional claim holding that the additional claim did not concern an underlying cause of action, and therefore Waage did not need to prove "but for" causation. Ojala again moved for summary judgment; this time the district court decided that the malpractice claim did involve an underlying cause of action requiring that Waage establish "but for" causation. It found summary judgment appropriate because Waage had not presented evidence to show that but for Ojala's negligence, he would have achieved a more favorable result.


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 (Minn. 1990). We view the evidence in the light most favorable to the non-prevailing party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

The plaintiff in a legal malpractice action generally must prove that (1) an attorney-client relationship existed, (2) the attorney was negligent or in breach of contract, (3) such acts by the attorney proximately caused plaintiff's damages, and (4) but for the attorney's conduct, 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 any element precludes recovery. Id. at 282.

The fourth element, "but for" causation, is referred to as the "case within a case" element. We have not applied that element to cases that concern merely negligent advice by an attorney and do not arise from a foregone claim or defense in an underlying cause of action. Fiedler v. Adams, 466 N.W.2d 39, 42 (Minn. App. 1991) review denied (Minn. Apr. 29, 1991). In such cases, causation is shown if an attorney's negligent advice is a substantial factor in the damages. Id. at 43. Waage argues that the case within a case standard should not be employed because his malpractice claims arise from Ojala's negligent advice, and not from his success or failure in any underlying cause of action. We disagree. This case is driven by Waage's claim for damages in the tort action. Waage must show that but for the negligence of his attorney, he would have obtained a more favorable result in that case.

Even if we did not apply the case within a case standard, however, summary judgment would be appropriate. Under the less restrictive Fiedler test, the elements of attorney-client relationship, negligence, and proximate cause, must be shown. Fiedler, 466 N.W.2d at 42. Here, the existence of an attorney-client relationship is undisputed. And Waage has shown that Ojala may have been negligent because she (1) did not inquire about the possibility of a post-dissolution tort action, (2) did not include the abuse language in the proposed dissolution findings, (3) did not advise him to proceed to trial, and (4) failed to clearly inform him that the settlement did not preclude a later action. Nevertheless, Waage has not shown that Ojala's acts or omissions were a substantial factor in causing his damages. For a number of reasons, we conclude that failure to demonstrate causation warranted the summary judgment.

First, Waage claims that if Ojala had secured the inclusion of language in the dissolution judgment providing that the maintenance award was based on spousal abuse, the tort action would have been barred by res judicata or collateral estoppel. Waage bases this claim on cases holding that maintenance awards cannot be relitigated, and that stipulations of the parties are equivalent to litigation. See Loo v. Loo, 520 N.W.2d 740, 744 (Minn. 1994) (explaining that matters to which the couple stipulated cannot be relitigated). But Waage has not presented any support for the proposition that a post-dissolution tort case relating to marital abuse constitutes a relitigation of maintenance.

Minnesota courts have not decided whether maintenance awards that consider misconduct have res judicata effect on later tort actions. There is no guarantee that a dissolution settlement based on marital abuse would have precluded the later tort action. Moreover, Lysholm has stated that she would not have consented to any settlement that would have barred her tort action. We agree with the district court that Waage has not shown that Ojala caused his damages by failing to include the abuse language in the dissolution judgment.

Waage next argues that Ojala should have advised him to proceed to trial rather than settle. Waage speculates that the tort action would be barred if the dissolution had been tried, because the district court would have released the parties from future claims or would have included compensation for the abuse in the maintenance award. Generally Minnesota courts "continue to disapprove 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); Glenna v. Sullivan, 310 Minn. 162, 170, 245 N.W.2d 869, 873 (1976) ("To allow a client who becomes dissatisfied with a settlement to recover against an attorney solely on the ground that a jury might have awarded them more than the settlement is unprecedented."). The circumstances here suggest that Waage's disenchantment with the results of his dissolution caused him to bring this malpractice action in quest of a more favorable result.

Moreover, district courts have broad discretion in dissolution cases. Bollenbach v. Bollenbach, 285 Minn. 418, 426, 175 N.W.2d 148, 154 (1970). "The maintenance order shall be in amounts and for periods of time, either temporary or permanent, as the court deems just, without regard to marital misconduct, and after considering all relevant factors * * *." Minn. Stat. § 518.552, subd. 2 (1996). A court may consider needs that result from a chronic health problem caused by marital abuse. Burt v. Burt, 386 N.W.2d 797, 800 (Minn. App. 1986), review denied (Minn. July 16, 1986).

Whereas Waage argues that the district court could have considered marital misconduct in determining maintenance, he offers no evidence that the district court would have considered the tort claims. Nor does Waage cite any law that would require the district court to consider the tort claims. Lysholm never indicated to Waage, Ojala, or the district court that she intended to bring a tort action. Without knowledge of the tort claims, it is unlikely that the district court would have acted to set maintenance in a manner that would bar a later tort claim. And even if the district court had considered the abuse, Waage has not shown that the tort suit would have been dismissed. Minnesota courts have not addressed whether a maintenance award based on marital abuse precludes a later tort action based on the same conduct. We can only speculate about the result at trial and the effect it would have had on the tort action.

In sum, Waage has not shown that Ojala's actions were a substantial factor in causing the damages he incurred in the tort suit.