This opinion will be unpublished and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

CX-98-39

John A. Hunt,

Appellant,

vs.

Foster, Waldeck, Lind &

Gries, Ltd., et al.,

Respondents.

Filed July 7, 1998

Affirmed

Willis, Judge

Hennepin County District Court

File No. 97212

Jesse Gant, III, Gant Law Office, 500 Flour Exchange Building, 310 Fourth Avenue South, Minneapolis, MN 55415 (for appellant)

Peter A. Koller, Thomas J. Shroyer, Moss & Barnett, 4800 Norwest Center, 90 South Seventh Street, Minneapolis, MN 55402 (for respondents)

Considered and decided by Short, Presiding Judge, Huspeni, Judge, and Willis, Judge.

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

WILLIS, Judge

In a legal malpractice action, appellant John Hunt challenges the district court's dismissal of all but one of his claims and its grant of summary judgment to respondent attorneys on the remaining claim. We affirm.

FACTS

Appellant John Hunt worked as a personal valet to Demores Olson, an elderly Minneapolis woman who had inherited $1,500,000 from her husband, from 1980 until her death in 1986. In a new will executed in 1983 and a series of codicils, Olson disinherited her relatives and left all her property (except one diamond ring from which the diamond had been removed) to Hunt. After hearing 18 days of testimony, an advisory jury found the will and codicils to be products of undue influence; the probate court rejected the will and codicils and also ordered the return of certain inter vivos gifts from Olson to Hunt.[1] Hunt's attorney, Alan Segal, filed an appeal that this court dismissed as untimely.

Hunt retained respondent attorney Thomas Foster and sued Segal and his firm for legal malpractice. Hunt claims that he requested a jury trial, but Foster informed him that, as a matter of law, he was not entitled to a jury trial in a legal malpractice action based on a failure to timely appeal. The parties agreed to a bench trial limited to the question of whether Hunt would have prevailed on appeal from the probate court's decision, reserving all other issues because determination of that question would be dispositive if decided against Hunt.

Foster called as an expert witness Eric Magnuson, an experienced appellate attorney and co-author of a treatise on appellate procedure. Magnuson testified that it was impossible to predict with certainty how this court would have decided Hunt's appeal but that there was a "significant possibility" that it would have reversed because of the necessity of proving undue influence by clear and convincing evidence. Segal called as his expert witness retired Chief Justice Peter Popovich, also the former Chief Judge of this court. Popovich testified that in view of the standard of review this court would have to apply, it would have affirmed the finding of undue influence.

The district court ruled for Segal, and Hunt appealed. This court affirmed on the ground that it would have affirmed the probate court's decision in the prior case. Hunt v. Segal, No. C9-95-1006 (Minn. App. Nov. 28, 1995).

Hunt then commenced the present legal malpractice action against Foster and his firm, alleging that Foster was negligent in (1) failing to demand a jury trial; (2) failing to raise an argument that this court would have remanded the probate action for a new trial based on some claimed irregularities involving jurors; and (3) retaining Magnuson as an expert witness rather than seeking a "current or retired" appellate judge. Hunt also alleged that Foster's failure to request a jury trial was a breach of contract. The district court determined that Hunt would not have been entitled to a jury trial and dismissed his complaint for failure to state claims on which relief could be granted, except for the claim relating to the use of Magnuson as an expert witness.

The parties then filed cross-motions for summary judgment. The district court granted Foster's motion on the ground that (1) Hunt had provided no expert testimony that Foster had breached a standard of care; (2) Hunt had provided no evidence that any retired appellate judge would have testified that Hunt would have prevailed on his appeal; (3) even if he had provided such evidence, Hunt could not show that the district court would have accepted that testimony over former Chief Justice Popovich's; and (4) this court had conclusively determined that Hunt would not have won his probate appeal, thus making it impossible for him to establish an element of his claim. Hunt appeals from the grant of summary judgment and the dismissal of his other claims. We affirm because Hunt cannot, as a matter of law, establish that he would have prevailed in the previous action but for Foster's alleged negligence.

D E C I S I O N

This court reviews a grant of summary judgment de novo to determine whether there is a genuine dispute of material fact and whether the district court properly applied the law. Zip Sort, Inc. v. Commissioner of Revenue, 567 N.W.2d 34, 37 (Minn. 1997). The reviewing court views the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). This court will affirm a grant of summary judgment if it can be sustained on any ground. Winkler v. Magnuson, 539 N.W.2d 821, 828 (Minn. App. 1995), review denied (Minn. Feb. 13, 1996). In reviewing a dismissal for failure to state a claim on which relief may be granted, the only question is whether the complaint sets forth a legally sufficient claim for relief. Elzie v. Commissioner of Pub. Safety, 298 N.W.2d 29, 32 (Minn. 1980).

A legal malpractice claim requires the establishment of four elements:

(1) the existence of an attorney-client relationship, (2) acts constituting negligence or a breach of contract, (3) that those acts were the proximate cause of the plaintiff's damages, and (4) that but for the attorney's negligence, the plaintiff would have been successful in the prosecution or defense of the action.

Hyduke v. Grant, 351 N.W.2d 675, 677 (Minn. App. 1984) (citing Blue Water Corp., Inc. v. O'Toole, 336 N.W.2d 279, 281 (Minn. 1983)). Where the basis of the malpractice claim is the failure to appeal properly, the plaintiff must demonstrate that the appeal "would have resulted either in outright reversal or in a new trial" and that a new trial, if ordered, would "probably" have been successful. Id.

Summary Judgment

In arguing that Foster committed malpractice in retaining Magnuson as an expert witness, Hunt concentrates on the second element of malpractice, which is acts of an attorney that constitute negligence. Whatever the merits of this argument, the district court correctly concluded that Hunt failed to establish the fourth element: that, but for Foster's choice of Magnuson as an expert witness, Hunt would have prevailed in his legal malpractice action. See Hyduke, 351 N.W.2d at 677.

A party opposing a motion for summary judgment must submit specific facts that are admissible in evidence and that tend to prove each element of the party's claim. See Kletschka v. Abbott-Northwestern Hosp., Inc., 417 N.W.2d 752, 754 (Minn. App. 1988) (affirming grant of summary judgment against reprisal discrimination plaintiff because she failed to produce admissible evidence of pretext), review denied (Minn. Mar. 30, 1988). As the district court noted, although Hunt alleges that Foster should have retained a retired appellate judge to provide expert testimony that he would have prevailed in his probate appeal, in this case Hunt has provided no expert testimony of any kind. Moreover, even if Hunt had produced evidence that a retired appellate judge would have testified that Hunt would have won his appeal, the district court still could have credited former Chief Justice Popovich's testimony to the contrary. As a matter of law, it is impossible for Hunt to prove that he would have prevailed if Foster had chosen a different expert witness.[2]

We also conclude that this court's opinion in Hunt's earlier appeal collaterally estops him from making any claim that he would have obtained a reversal or a new trial on the merits of his probate claim.

Collateral estoppel prevents a party from relitigating issues if (1) the issue is identical to one in a prior adjudication; (2) there was a final judgment on the merits; (3) the estopped party was a party in the prior case; and (4) there was a full and fair opportunity to be heard on the issue.

In re Trust Created by Hill, 499 N.W.2d 475, 484 (Minn. App. 1993), review denied (Minn. July 15, 1993). In his previous legal malpractice case, Hunt argued that he would have succeeded in an appeal from the probate court's decision; this court rejected that argument. Whether a plaintiff in a legal malpractice action based on a failure to appeal properly would have succeeded on that appeal is a question of law. Hyduke, 351 N.W.2d at 677. This court's decision in Hunt's first malpractice action was therefore based on a de novo review of the probate court record and not on deference to the district court's findings. Because the question of whether Hunt would have prevailed in his previous legal malpractice action includes the question of whether he would have prevailed in his probate appeal, and because this court decided that issue on the merits in a manner that could not have been affected by the district court's reasoning, Hunt is precluded as a matter of law from raising, in this or any other proceeding, any argument that this court would have reversed the probate court's decision on the merits.

Dismissed Claims

The district court dismissed Hunt's malpractice claims based on Foster's failure to request a jury trial on the ground that Hunt was not entitled to a jury trial because the question of whether he would have prevailed on an appeal from the probate court's decision was a question of law for the court that was dispositive of his claim. We agree. See Hyduke, 351 N.W.2d at 677 ("[a] court is qualified, in a way a jury is not, to determine the merits and probable outcome of an appeal").

Hunt also claims that Foster was negligent in failing to raise an argument that even if this court would not have reversed the probate court's decision on the merits, it would have remanded for a new trial based on his allegations that (1) the probate judge failed to answer a question asked by the jury, (2) one juror misidentified Hunt as a son of Olson who was "not cast in a favorable light," (3) jurors stated that they were upset at the length of the trial, (4) jurors stated that they did not like the way Hunt looked, and (5) one juror said that she did not listen well and had "missed a lot." This court's decision does not collaterally estop Hunt from raising these alleged grounds for a new trial in the context of a legal malpractice case because they were not raised and decided in Hunt's previous appeal. See Hill, 499 N.W.2d at 484 (stating that collateral estoppel does not apply where issue has not actually been litigated or decided).[3] Hunt argues that a jury trial in the first malpractice action was necessary to determine whether Hunt would have prevailed in a retrial.

Although the district court did not specifically discuss Hunt's allegation of jury irregularities in dismissing his other claims, Hunt did not argue this issue in the district court after the dismissal and may therefore have waived it. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that this court will not consider issues not raised to or decided by district court). But in the interest of forestalling additional litigation, we elect to address it. See Franklin v. Western Nat'l Mut. Ins. Co., 574 N.W.2d 405, 407 n.2 (Minn. 1998).

Long-standing precedent bars the claims of error that Hunt raises.

It is the general rule that, after a jury has been discharged, no affidavit of a juror, and no affidavit of any other person relating to what a juror has said, will be received to impeach the verdict where the facts sought to be shown inhere in the verdict itself, such as the attempt to show that the jurors misapprehended the evidence, or did not understand the charge of the court, or that they misconceived the legal consequences of their factual findings * * * . Hence, no statements by the jurors, either unanimously or individually, can be resorted to for explaining or changing the meaning or legal effect of the verdict.

Bauer v. Kummer, 244 Minn. 488, 490-91, 70 N.W.2d 273, 275 (1955).

A sound public policy demands that a verdict be protected * * * from attacks whereby it is sought to vacate, change, or explain the actual verdict on grounds which inhere in the jury room deliberations which led to its rendition.

Id. at 491, 70 N.W.2d at 276. The only exception to this rule is where jurors allege a clerical error in reducing the verdict to writing. Id. at 491, 70 N.W.2d at 275. Hunt's claims that jurors mistook him for another witness, did not like the way he looked, missed information, and were upset at the length of the trial all plainly relate to "jury room deliberations" and this court thus could not have granted a new trial on these grounds. Moreover, even assuming that the question that the court failed to answer was legal in nature and that the court's inaction resulted in confusion as to the law, this court has held that an attempt through subsequent affidavits "to show that the jurors did not understand the charge of the court" is barred under Bauer. Zurn v. Hunt, 409 N.W.2d 8, 11 (Minn. App. 1987) (holding that judge's unavailability to answer jury's question is not alone sufficient to require new trial). In any event, Hunt cannot show prejudice resulting from any jury confusion because this was an advisory jury whose determinations were not binding; the district court had the final responsibility to make its own findings. See In re Murphy's Estate, 269 Minn. 393, 404, 131 N.W.2d 220, 227 (1964); Cambern v. Sioux Tools, Inc., 323 N.W.2d 795, 797 (Minn. 1982) (stating that refusal to give additional instructions in response to jury's request is reversible error only where it materially affects a party's rights). We conclude that this court would not have granted a new trial based on the alleged jury irregularities in the probate action and that Hunt (1) could not have prevailed on a legal malpractice claim against Segal on this basis and (2) therefore cannot prevail on his claim against Foster based on Foster's failure to raise the issue.

For the reasons stated, we affirm the district court's judgment in all respects. We wish to emphasize that our conclusion is that all of Hunt's claims are barred as a matter of clearly established law, and any negligence on the part of his present counsel did not have, and could not have had, any effect on our decision.

Affirmed.

[ ]1 Hunt was allowed to keep $187,000 in proceeds from the sale of Olson's home, a Porsche, and $28,000 in cash.

[ ]2 The same reasoning applies to Hunt's claim that Foster was negligent in his "misplaced" reliance on an inapposite case; there is no evidence that Hunt would have prevailed in the absence of Foster's legal error, particularly in view of the fact that Foster's error was in mistakenly construing the case's holding to be favorable to Hunt.

[ ]3 We note that collateral estoppel is distinct from the doctrine of res judicata, which provides that a judgment on the merits is an absolute bar to a second suit raising a claim that could have been litigated in an earlier action. See Dorso Trailer Sales, Inc. v. American Body & Trailer, Inc., 482 N.W.2d 771, 774 (Minn. 1992). Because there has not been an earlier action in which Hunt could have raised a legal malpractice claim against Foster for failing to raise the jury irregularity issue in the suit against Segal, res judicata does not bar this claim.