This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-02-632

 

Ikechi Kallys Albert,

Appellant,

 

vs.

 

Misti R. Allen Binsfeld, et al.,

Respondents.

 

Filed January 21, 2003

Affirmed
Klaphake, Judge

 

Hennepin County District Court

File No. CT018508

 

Ikechi Kallys Albert, 1742 NE Hollywood Avenue, Minneapolis, MN  55418 (pro se appellant)

 

Paul C. Peterson, William L. Davidson, Sara J. Lathrop, Lind, Jensen, Sullivan & Peterson, P.A., 150 South Fifth Street, Suite 1700, Minneapolis, MN  55402 (for respondents)

 

            Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Pro se appellant Ikechi Kallys Albert challenges the district court’s grant of summary judgment to respondents, Misti R. Allen Binsfeld and the law firm of Fishman & Binsfeld, P.A.  Appellant hired respondent Binsfeld to represent him in his ongoing efforts to become a naturalized United States citizen.  Binsfeld withdrew from that representation after appellant failed to pay his attorney fees as they came due under the terms of the parties’ retainer agreement.  Appellant thereafter sued respondents, Binsfeld and her law firm, alleging legal malpractice and six other causes of action, including: breach of contract; promissory estoppel; equitable estoppel; negligence and unjust enrichment; intentional interference with contractual rights and intentional infliction of emotional distress; and misrepresentation.

            In granting summary judgment to respondents, the district court determined that dismissal was required due to appellant’s failure to file an expert affidavit under Minn. Stat. § 544.42 (2000).  Because the district court did not err in its application of this statute and in characterizing all of appellant’s causes of action as related to legal malpractice, we affirm.

D E C I S I O N

            In an action alleging legal malpractice, the plaintiff must provide two affidavits of expert review.  Minn. Stat. § 544.42, subds. 2-4 (2000).[1]  The first affidavit must be served with the pleadings and state that the party has reviewed the facts of the case

with an expert whose qualifications provide a reasonable expectation that the expert’s opinions could be admissible at trial and that, in the opinion of this expert, the defendant deviated from the applicable standard of care and by that action caused injury to the plaintiff.

Minn. Stat. § 544.42, subd. 3(a)(1).  Failure to provide the first affidavit within 60 days after demand by a defendant results “in mandatory dismissal of each cause of action with prejudice as to which expert testimony is necessary to establish a prima facie case.”  Minn. Stat. § 544.42, subd. 6(a) (2000).  The requirements for this initial affidavit “may be waived or modified if the court * * * determines, upon an application served with commencement of the action, that good cause exists for not requiring the certification.”  Minn. Stat. § 544.42, subd. 3(c).

            The second affidavit is more detailed and requires the party to “state the identity” of each expert the party intends to call at trial and the “substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion.”  Minn. Stat. § 544.42, subd. 4.  Answers to interrogatories may satisfy the requirements for this second affidavit if they are signed and served upon the defendant within 180 days after commencement of the action.  Id.  Failure to comply with the requirements for the second affidavit also “results, upon motion, in mandatory dismissal of each action with prejudice as to which expert testimony is necessary to establish a prima facie case.”  Id., subd. 6(c).

            These requirements apply equally to a pro se litigant.  Id., subd. 5 (2000).  The statute specifically warns:  “If a party is acting pro se, the party shall sign the affidavit or answers to interrogatories referred to in this section and is bound by those provisions as if represented by an attorney.”  Id. 

            Here, the district court did not err in concluding that appellant failed to timely submit the initial affidavit or request waiver of the requirement, thus requiring a mandatory dismissal of his malpractice claims.  The court noted that respondents filed a demand for certification with their answer on June 28, 2001, but that appellant did not submit an affidavit until October 24, 2001, well beyond the 60-day time limit.  The court also recognized that although the statute allows a party to request modification or waiver of this initial affidavit, that request must be made “upon an application served with commencement of the action.”  The court concluded that appellant’s submission of a September 5, 2001 letter from an attorney who did not represent him and who requested that the court modify the time limits of the statute was untimely and failed to meet the requirements of the statute.

            The district court further did not err in concluding that even if it were to waive the initial affidavit requirements and accept the affidavit that appellant eventually did file on October 24, 2001, that affidavit was untimely and its contents were deficient.  The affidavit still was not filed within 180 days after commencement of the action.  And the contents of the affidavit were deficient:  it was not sworn by the attorney or signed by appellant, failed to state the identity of experts expected to be called at trial, and failed to state the substance of the facts or a summary of those experts’ opinions.

            Finally, the district court properly rejected appellant’s argument that his claims are based in contract, not legal malpractice, and that Minn. Stat. § 544.42 does not apply here.  After examining the complaint, the court concluded that all of appellant’s claims “relate back to the malpractice claim and must be dismissed for lack of expert certification.”  A reading of the complaint confirms the district court’s characterization of appellant’s claims:  they all basically challenge Binsfeld’s representation to appellant in June 1999 that he could reapply for naturalization and her decision in January 2001 to withdraw, after repeated warnings, just prior to his INS interview for his nonpayment of fees under the terms of the parties’ retainer agreement.  Thus, dismissal of all of appellant’s claims was proper under Minn. Stat. § 544.42.

            While the results of this case may appear harsh, courts have not hesitated to dismiss claims when expert affidavit requirements are not met.  See, e.g., Meyer v. Dygert, 156 F.Supp.2d 1081, 1090-91 (D. Minn. 2001) (affirming grant of summary judgment where plaintiffs failed to provide affidavit required by Minn. Stat. § 544.42, to establish applicable standard of care and whether attorney’s conduct deviated from that standard); House v. Kelbel, 105 F. Supp.2d 1045, 1049-51 (D. Minn. 2000) (affirming dismissal where plaintiff failed to comply with time deadlines of Minn. Stat. § 544.42); Anderson v. Rengachary, 608 N.W.2d 843, 848-49 (Minn. 2000) (affirming district court’s dismissal of medical malpractice suit under Minn. Stat. § 145.682, where plaintiff failed to submit expert affidavit within 180-day deadline and contents of affidavit that was eventually filed did not meet requirements of statute).  We therefore conclude that the district court here did not abuse its discretion in dismissing appellant’s claims for failure to comply with the requirements of Minn. Stat. § 544.42, and we affirm its grant of summary judgment to respondents.  See Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn. 1990) (reviewing court will not reverse district court’s dismissal of medical malpractice action for failure to comply with expert affidavit requirements absent abuse of discretion).

            Affirmed.