This opinion will be unpublished and

may not be cited except as provided by

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




Thomas Bowe,



Helen A. Dovolis, d/b/a

Dovolis & Associates,


Filed July 22, 1997


Randall, Judge

Hennepin County District Court

File No. 94-13952

Garrett Johnson, Johnson Law Office, 112 Bush Street, Red Wing, MN 55066 (for appellant).

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

Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Schumacher, Judge.



Appellant argues that in his trial for legal malpractice, the district court erroneously excluded from evidence the memorandum attached to the workers' compensation judge's decision. Respondent appeals, arguing that the district court erred in awarding appellant $15,000 after finding respondent caused appellant to lose a settlement offer in that amount. We affirm.


Appellant Thomas Bowe brought an action for legal malpractice against respondent Helen Dovolis in Hennepin County District Court, claiming that Dovolis negligently presented his case before Workers' Compensation Court Judge Bonnie Peterson and that, as a consequence, he lost all future compensation benefits. In addition, Bowe claimed that Dovolis negligently handled a settlement made by the employer/insurer in the amount of $15,000.

Following a bench trial, the district court concluded that Bowe failed to establish that he would have succeeded in his underlying action but for Dovolis's negligence. The district court did conclude that Dovolis negligently handled the settlement and ordered Dovolis to pay Bowe $15,000. Following trial, both parties moved the district court for amended findings of fact, conclusions of law, and judgment. In the alternative, Bowe moved the district court for a new trial on the issue of whether the memorandum of Judge Peterson should have been excluded from evidence. The district court denied all posttrial motions. Judgment was entered on August 12, 1996. This appeal follows.


The decision of whether to admit or exclude evidence rests within the broad discretion of the trial court, and its decision will not be disturbed absent an abuse of discretion. Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). The party complaining of a discretionary evidentiary ruling must show that ruling resulted in harm or prejudice to his case. Bahl v. Country Club Mkt., Inc., 410 N.W.2d 916, 919 (Minn. App. 1987).

Before trial, Dovolis brought a motion in limine to exclude the memorandum of Judge Peterson, arguing it was a hearsay document and that Judge Peterson, under Canon 2 of the Minnesota Code of Judicial Conduct, could not be a witness and cross-examined regarding the memorandum. The district court granted Dovolis's motion and excluded the memorandum. At the start of trial, and in response to Bowe's motion in limine seeking to have the memorandum admitted, the district court ruled from the bench that the memorandum was inadmissible because it was a hearsay document and there was no way to cross-examine the author of the document.

Rule 803 of the Minnesota Rules of Evidence provides an exception to the general rule against hearsay for a declarant's then-existing state of mind. The rule states that:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

* * * *

(3) Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

Minn. R. Evid. 803(3). Bowe concedes the memorandum is hearsay, but argues it is admissible under the state-of-mind exception to the hearsay rule contained in Rule 803(3). It is unclear what relevance Judge Peterson's state of mind has to the determination of whether Dovolis was negligent in her presentation of Bowe's workers' compensation claim. To prevail in a claim of legal malpractice, a plaintiff must prove four elements: (1) the existence of an attorney-client relationship; (2) acts constituting negligence or 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, plaintiff would have been successful in the prosecution of the action. Blue Water Corp., Inc. v. O'Toole, 336 N.W.2d 279, 281 (Minn. 1983).

Bowe contends that by excluding Judge Peterson's memorandum, the district court excluded the only piece of evidence that would have allowed a finding of what Judge Peterson would have found or ordered but for Dovolis's negligence in presenting his workers' compensation case before Judge Peterson.

Bowe's argument is at odds with the standard applied in legal malpractice claims, which is an objective one. It is not what the particular judge presiding over the original case could or would have found if additional evidence were presented, but instead, what a reasonable judge or trier-of-fact would have concluded if the additional evidence had been presented. See Helmbrecht v. St. Paul Ins. Co., 362 N.W.2d 118, 125 (Wis. 1985) (holding that in legal malpractice case, jury did not have to decide what the trial court judge in the case would have done, but what a reasonable judge would have done if the case were properly presented). The exception set forth in Rule 803(3) does not allow the admission of the declarant's statement as to why the declarant held a particular state of mind, or what the declarant believed caused the state of mind. See Hase v. American Guar. & Liab. Ins. Co., 312 Minn. 271, 276, 251 N.W.2d 638, 642 (1977) (holding that state-of-mind exceptions to hearsay rule do not embrace statements made to explain the cause of the mental or emotional condition). Bowe simply wants to introduce Judge Peterson's memorandum as evidence that if certain changes had been made in the presentation of Bowe's claim, Judge Peterson's decision would have been different. We do not find error in the trial court's discretionary decision not to admit the evidence. The district court had before it the evidence Bowe claims Dovolis should have presented to Judge Peterson, including expert testimony on the appropriate standard of care. After reviewing this evidence, the district court noted that it was not persuaded that if presented, it would have caused Judge Peterson to find differently on the issue of the causation of Bowe's injuries.

Given the discretion afforded district courts in evidentiary matters, we cannot say the court abused its discretion in excluding Judge Peterson's memorandum. The standard applied in legal malpractice claims is objective, and it is immaterial what Judge Peterson would have found or ruled had the case been presented differently by Dovolis.

Next, Bowe contends that the district court erred by not making any findings of fact on whether Dovolis has met the standard of care required of an attorney-specialist. Bowe acknowledges, however, that the district court's conclusion that "but for causation" regarding Dovolis's representation was lacking, did away with the need for further findings of fact on the appropriate standard of care. In addition, the trial transcript indicates that Dovolis's expert witness identified the proper standard of care required of an attorney-specialist in workers' compensation cases. Thus, the standard of care identified by both parties' expert witnesses and applied by the district court is that care required of an attorney-specialist.

Lastly, Dovolis argues that the district court erred in finding that she negligently handled the settlement offer by the employer/insured while his case was pending before the supreme court. We disagree.

"The standard for review of a bench trial is broader than the standard for jury verdicts." Runia v. Marguth Agency, Inc., 437 N.W.2d 45, 48 (Minn. 1989). A trial court's findings of fact will be reversed if, upon review of the entire evidence, this court is left with the definite and firm conviction that a mistake has been made. In re Guardianship of Dawson, 502 N.W.2d 65, 68 (Minn. App. 1993), review denied (Minn. Aug. 16, 1993). A reviewing court will not disturb a damage award unless it would be shocking not to do so or would result in plain injustice. Hughes v. Sinclair Mktg., Inc., 389 N.W.2d 194, 199 (Minn. 1986).

Here, the district court found that Dovolis and the employer/insurer's attorney "entered into a settlement agreement" settling Bowe's claim for $15,000. Because Dovolis failed to notify the supreme court of the settlement, the court entered an order denying Bowe relief. The district court concluded that Dovolis was negligent in not withdrawing the matter from the supreme court after the settlement was reached and that but for this negligence, Bowe would have received $15,000 in the settlement. After reviewing the record, we conclude that the trial court's findings of fact are reasonably supported by the record, and we are not left with the firm and definite conviction that a mistake has been made. We cannot say as a matter of law that it would be shocking or result in plain injustice to allow the trial court's $15,000 award to stand.