Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Dunlap & Seeger P.A., et al.,
File No. C097790
Paul A. Sortland, Sortland Law Office, 701 Fourth Avenue South, Suite 1700, Minneapolis, MN 55415-1564 (for appellant)
Richard J. Thomas, Bryon G. Ascheman, Burke & Thomas, 3900 Northwoods Drive, Suite 200, St. Paul, MN 55112 (for respondents)
Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Schultz, Judge.*
*Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
U N P U B L I S H E D O P I N I O N
Appellant Mitchell T. Klempf contends the district court erred by: (1) granting summary judgment for respondents Dunlap & Seeger concluding appellant failed to establish a prima facie case for his legal malpractice claim; and (2) denying appellant's request for a continuance. We affirm.
D E C I S I O N
Expert testimony generally is required both to establish a standard of care applicable to an attorney who is alleged to have acted negligently and to establish whether the attorney's conduct deviated from that standard. Admiral Merchants Motor Freight, Inc. v. O'Connor & Hannan, 494 N.W.2d 261, 266 (Minn. 1992). Here, appellant's only expert witness stated by affidavit that respondents' representation was deficient because: (1) the Fair Credit Reporting Act (FCRA) claim against appellant "was not a viable cause of action"; and (2) respondents were negligent in advising appellant to settle the claim by turning over inventory worth $250,000 or $300,000. The district court properly noted, however, that: (1) a district court judge had denied respondents' motion for summary judgment on the FCRA claim, holding that appellant could be potentially liable under FCRA; and (2) it is undisputed that respondents were advised by appellant that the inventory was only worth between $10,000 and $30,000.
Because appellant's expert either ignored or was unaware of either the earlier summary judgment motion or the undisputed facts of the case, we conclude the expert opinion lacked the necessary foundation to provide sufficient evidence of the negligence claim.
When a plaintiff fails to produce qualified expert opinion based on adequate foundation, there is no genuine issue of material fact for trial. Id. Without adequate expert testimony, issues of causation are too attenuated because there is no standard by which to measure the actions of respondents. Because the district court properly found that appellant failed to establish a prima facie case for malpractice, we need not address appellant's arguments regarding (1) emotional distress damages; (2) damages to appellant's corporation; or (3) that the district court erred by applying the wrong legal malpractice standard.