This opinion will be unpublished and

may not be cited except as provided by

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




David W. VanDerHeyden and Associates, P.A.,



Mark Harris,


Filed April 7, 1998

Affirmed in part, reversed in part, and remanded.

Randall, Judge

Olmsted County District Court

File No. C2961655

Lawrence J. Skogland, 1000 Northland Plaza, 3800 West 80th Street, Minneapolis, MN 55431 (for respondent)

Gary A. Weissman, Suite 500, 701 Fourth Avenue South, Minneapolis, MN 55415 (for appellant)

Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Willis, Judge.



Respondent sued appellant to recover $13,673 in attorney's fees. Appellant counterclaimed, alleging that respondent committed legal malpractice and breached his fiduciary duty. Both parties moved for summary judgment. The district court granted both summary judgment motions. Appellant appealed and respondent filed a notice of review. We affirm in part, reverse in part, and remand.


Appellant Mark Harris and Katherine Wade, n/k/a Katherine Thompson, were married in 1975. Wade commenced a dissolution action in 1990. Harris hired respondent David VanDerHeyden to represent him in the dissolution. In 1991, Harris' parents also hired VanDerHeyden to represent them in trying to obtain custody of Eric Harris, who was born during Harris and Wade's marriage. On April 30, 1991, the district court entered a judgment and decree dissolving the marriage between Harris and Wade. The judgment and decree reserved custody, visitation, and division of property for trial.

On the day the trial was scheduled to begin, the parties reached a settlement. In the settlement, Wade received physical custody of the children, received permission to move the children to Missouri and agreed not to claim any spousal maintenance; Harris agreed to give half of his future pension proceeds to Wade, to allow automatic wage withholding for child support, and to have reasonable visitation with the children; and Harris and Wade received joint legal custody and agreed to file a joint bankruptcy petition. On the district court record, VanDerHeyden asked Harris if he had sufficient opportunity to discuss and understand the terms of the agreement, if he knew that he owed him (VanDerHeyden) some fees, and if he knew he could file bankruptcy with another attorney's assistance. Harris answered these questions affirmatively. VanDerHeyden also asked Harris whether he had any objections to the agreement, if he had any complaints about his (VanDerHeyden's) representation, or if he had any misgivings about reaching the settlement so quickly. Harris answered these questions in the negative. On May 8, 1992, the stipulation was entered.

In 1992, Wade moved to Missouri and Harris claimed he had difficulty in seeing his children. He testified that two attorneys told him that a fixed visitation schedule would not help him to see his children. In November of 1993, Wade remarried. On April 30, 1996, VanDerHeyden sued Harris to recover over $13,000 in attorney's fees. To date (according to the record), Harris has not filed bankruptcy. On June 10, 1996, Harris answered VanDerHeyden's complaint and counterclaimed, alleging that VanDerHeyden engaged in legal malpractice, breached his fiduciary duty, and had a conflict of interest. The trial court granted the summary judgment motions of both parties. This appeal follows.


On appeal from a district court's grant of summary judgment, this court determines (1) whether any genuine issues of material fact exist and (2) whether the lower court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). In doing so, this court "view[s] 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).

I. Legal Malpractice

To prevail in a legal malpractice suit, a plaintiff must establish four elements: (1) the existence of an attorney-client relationship; (2) acts constituting negligence or breach of contract; (3) that such acts were the proximate cause of the plaintiff's damages; (4) that but for defendant's conduct the plaintiff would have been successful in the prosecution or defense of the action.

Blue Water Corp. v. O'Toole, 336 N.W.2d 279, 281 (Minn. 1983)

We have stated before that in order to prove malpractice, the plaintiff must demonstrate a standard of care and the defendant's departure from it. An attorney is only 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) (citing Sjobeck v. Leach, 213 Minn. 360, 364-65, 6 N.W.2d 819, 821-22 (1942)).

[A] professional must use reasonable care to obtain the information needed to exercise his or her professional judgment, and failure to use such reasonable care would be negligence, even if done in good faith.

Wartnick v. Moss & Barnett, 490 N.W.2d 108, 113 (Minn. 1992).

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.

Ponticas v. K.M.S. Investments, 331 N.W.2d 907, 915 (Minn. 1983).

The parties agree that Harris and VanDerHeyden had an attorney-client relationship. Harris must establish the remaining elements of his claim.

Harris asserts that VanDerHeyden committed legal malpractice by (1) not negotiating a fixed visitation schedule; (2) failing to determine the current amount of Harris's pension and exchanging half of Harris' future pension benefits for a waiver of spousal maintenance; and, (3) promising, but failing, to file a joint bankruptcy petition. We disagree.

Even assuming that VanDerHeyden's acts were negligent, Harris has not established proximate cause. VanDerHeyden could not have reasonably anticipated that (1) Harris would be prevented from exercising his reasonable visitation rights; Harris would seek legal advice from two separate attorneys who both would give him incorrect information concerning visitation rights; (2) the value of Harris's future pension benefits would increase, given that many future events can occur, such as a voluntary job change, permanent or temporary layoff, relocation of his family, or an unexpected change in Harris's work situation; and (3) Harris would not take the necessary steps to allow VanDerHeyden to file Harris's bankruptcy. Further, the fact that Harris stated that he was aware of and understood the terms of the marital termination agreement weigh against his claim. Because Harris has not established proximate cause, we need not address the final element of establishing a legal malpractice claim. Thus, the district court properly granted VanDerHeyden's summary judgment motion.

II. Breach of Fiduciary Duty

[I]t is a basic rule that an attorney must represent the client with undivided loyalty and must disclose to the client any material matter which might impair that loyalty or affect the client's interests.

Perl v. St. Paul Fire & Marine Ins. Co., 345 N.W.2d 209, 215 (Minn. 1984). Attorneys lose their right to be compensated for their services if they breach their fiduciary duty to their clients. Rice v. Perl, 320 N.W.2d 407, 411 (Minn. 1982).

Harris argues that VanDerHeyden violated his fiduciary duty by failing to fulfill his promise to file a joint bankruptcy petition and then suing Harris for attorney's fees including $3,673 in interest despite the lack of a written fee agreement. We disagree.

While, admittedly, Harris could not file a joint bankruptcy petition after his marriage was legally dissolved, he could have filed an individual petition. Harris, however, did not take any steps to work with VanDerHeyden to file an individual petition, nor did he otherwise attempt to file an individual petition. This option still remains open for Harris. VanDerHeyden cannot file a bankruptcy petition on Harris's behalf without Harris's involvement. Accordingly, the district court correctly granted VanDerHeyden's summary judgment for VanDerHeyden on this issue.

III. Attorney's Fees

VanDerHeyden asserts that the district court erred in dismissing his claim, on summary judgment, for attorney's fees. The record does demonstrate genuine issues of material fact concerning (1) the amount owed by Harris to VanDerHeyden, given that VanDerHeyden included charges on Harris's billing statement for Harris's marital dissolution and for work done for Harris's parents in a separate matter; and (2) the amount of interest due, if any, in the absence of a written fee agreement. See Van Vickle v. C.W. Scheurer & Sons, Inc., 556 N.W.2d 238, 242 (Minn. App. 1996) (stating that the reasonable value of attorney fees is a question of fact) review denied (Minn. Mar. 18, 1997). In reversing the district court's grant of summary judgment on this issue, we are not determining whether VanDerHeyden is entitled to any amount of attorney's fees. We simply conclude that genuine issues of material fact exist.

Affirmed in part, reversed in part, and remanded.