This opinion will be unpublished and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

C4-97-2357

Mitchell T. Klempf,

Appellant,

vs.

Dunlap & Seeger P.A., et al.,

Respondents.

Filed June 16, 1998

Affirmed

Kalitowski, Judge

Olmsted County

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

KALITOWSKI, Judge

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

I.

In reviewing a grant of summary judgment, the appellate court must determine (1) whether any genuine issues of material fact exist and (2) whether the district court erred in applying the law. Betlach v. Wayzata Condominium, 281 N.W.2d 328, 330 (Minn. 1979). The nonmoving party is to receive "`the benefit of that view of the evidence which is most favorable'" and is entitled to have all "doubts and factual inferences resolved against the moving party." Nord v. Herreid, 305 N.W.2d 337, 339 (Minn. 1981) (quoting Sauter v. Sauter, 244 Minn. 482, 484-85, 70 N.W.2d 351, 353 (1955)). Summary judgment is mandated if the nonmoving party fails in its burden to provide evidence of a disputed material fact. Minn. R. Civ. P. 56.05.

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.

II.

Appellant also contends the district court erred by denying his request for a continuance. We may reverse a district court's decision to deny a motion for a continuance or to amend a pleading only if the court abused its discretion. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). After filing his complaint, appellant here conducted no discovery for the 22 months before respondents brought their motion for summary judgment. Thus, we conclude the district court did not abuse its discretion in determining that appellant was not entitled to a continuance. See Meany v. Newell, 367 N.W.2d 472, 476 (Minn. 1985) (continuance is inappropriate when plaintiff had three months in which to conduct discovery). In addition, because respondents' summary judgment motion addressed only the foundation of the expert witness opinion, there were no new arguments to justify appellant's request for a continuance.

Affirmed.