Patrick Brinkman v. Stephen M. Thompson

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0949

Patrick Brinkman,
Appellant,

vs.

Stephen M. Thompson, et al.,
Respondents.

Filed January 11, 2016
Affirmed
Connolly, Judge

Hennepin County District Court
File No. 27-CV-14-15411

Patrick Brinkman, Somerset, Wisconsin (pro se appellant)

Kay Nord Hunt, Phillip A. Cole, Lommen Abdo, P.A., Minneapolis, Minnesota (for
respondents)

Considered and decided by Connolly, Presiding Judge; Johnson, Judge; and Harten,

Judge.


Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
 UNPUBLISHED OPINION

CONNOLLY, Judge

Appellant challenges the dismissal of his legal-malpractice claims arising out of

unsuccessful employment-discrimination litigation. Because we see no error in the

dismissal of appellant’s amended complaint, we affirm.

FACTS

On October 5, 2005, Andersen Corporation (Andersen) outsourced its computer

help-desk function. Appellant Patrick Brinkman was one of 47 Andersen employees whose

jobs disappeared; 20 of them found other jobs at Andersen, but the rest, including appellant,

were terminated. In November 2006, appellant, acting pro se, filed a complaint in federal

district court against Andersen, alleging claims of age and sex discrimination and

retaliation.1 In February 2007, appellant retained respondent attorney Stephen Thompson,

of respondent Friederichs & Thompson, P.A., to represent him in the lawsuit.

Andersen moved for summary judgment dismissing appellant’s claims; respondents

opposed the motion with a lengthy memorandum. In Brinkman v. Andersen Corp., No. 06-

CV-04530-JRT-FLN (D. Minn. Sept. 2, 2008), a memorandum opinion, (Brinkman), the

federal district court granted Andersen’s motion for summary judgment and dismissed

appellant’s claims with prejudice. Appellant told respondents he wanted to appeal the

summary judgment, but respondents missed the deadline for filing an appeal in federal

court.

1
Appellant had previously filed these claims with the Equal Employment Opportunity
Commission, which found no support for them.

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 In 2014, appellant served a complaint in state court alleging legal malpractice

against respondents. They moved to dismiss the complaint on the grounds that appellant

(1) failed to plead mistake with particularity or to serve an affidavit of expert review under

Minn. Stat. § 544.42 (2014) and (2) pleaded breach of fiduciary duty without a statement

of a claim. Alternatively, respondents moved for summary judgment on the ground that

Brinkman was correct as a matter of law and they had no evidence that controverted its

holdings.

Appellant then filed an amended complaint, alleging that the holdings in Brinkman

were unsupported or contradicted by his evidence and that the Brinkman complaint, which

appellant drafted himself, did not adequately present the facts. Respondents moved to

dismiss the amended complaint or, in the alternative, for summary judgment.

At the hearing on respondents’ motion, the district court asked the parties to brief

two issues: (1) what evidence, in the record or available through discovery, would have

allowed the federal district court to find a genuine issue of material fact as to whether

Andersen’s decision to outsource its help desk was motivated by animus against appellant;

and (2) whether the law in 2008 supported Brinkman’s conclusions that Andersen’s

monitoring of appellant’s computer use and putting him on paid administrative leave were

not adverse employment actions.

After these issues had been briefed, the district court issued an order granting

respondents’ motion to dismiss and dismissing appellant’s amended complaint with

prejudice.

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 Appellant, pro se, now argues that the district court erred in dismissing his amended

complaint.

DECISION

A successful legal-malpractice claim requires showing that: (1) an attorney-client

relationship existed; (2) the attorney’s acts constituted negligence or breach of contract; (3)

those acts caused the client’s damages, and (4) but for the attorney’s acts, the client would

have been successful in the prosecution of his action. Noske v. Friedberg, 713 N.W.2d

866, 873 (Minn. App. 2006), review denied (Minn. July 19, 2006). The only disputed

element here is the fourth: whether appellant would have been successful in his appeal of

Brinkman to the U.S. Eighth Circuit Court of Appeals. But “[f]ailure to establish any one

of these elements defeats the entire claim.” Noske v. Friedberg, 670 N.W.2d 740, 743

(Minn. 2003). Whether an appeal would have been successful is a question of law and is

reviewed de novo. See Hyduke v. Grant, 351 N.W.2d 675, 677 (Minn. App. 1984) (“A

court is qualified, in a way a jury is not, to determine the merits and the probable outcome

of an appeal.”), review denied (Minn. Oct. 16, 1994).

Appellant’s argument is that both the federal district court in Brinkman and the

district court in his malpractice action “got key facts wrong.” Appellant claims that his last

date of employment is “a critical, disputed issue of material fact.” But appellant agrees

that, like all the Andersen employees whose positions were terminated by the outsourcing,

he was paid until October 5, 2005: the only difference is that he was not required to work

on September 30 or October 3-4. Moreover, in his original complaint, appellant himself

said he was “terminated in October of 2005.” On cross-examination, Andersen’s senior

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vice president of human resources was asked by appellant’s counsel, “[The] decision to

end [appellant’s] employment with Andersen prior to the 10/5 end date was a decision that

was made by Andersen, correct?” and answered, “[H]is employment did end 10/5, and he

was paid during that time as [Andersen was] committed to. What he wasn’t required to do

was to come to work every day.” Thus, there is support for the finding in Brinkman that

appellant, like 26 other employees who did not find other jobs at Andersen, was terminated

on October 5, 2005, when Andersen outsourced its help-desk function. Appellant does not

explain what evidence could have shown that this was a question of material fact or that

the finding in Brinkman was wrong.

Appellant’s challenges to the district court’s decision are based on the supposition

that his own statements are undisputed evidence. For example, he claims that Andersen

said he “was terminated due to security breaches, behavioral issues and interfering with the

company’s effort to monitor” his computer use. But appellant provides no indication in

the record of where any Andersen representative said this, and the testimony of Andersen

representatives contradicts it. As the district court concluded, appellant provided no

evidence to suggest that Brinkman could or would have been reversed on appeal.

Therefore, appellant cannot make a prima facie case of legal malpractice. See Noske, 713

N.W.2d at 873 (providing that an essential element of a malpractice claim is a showing

that, but for the attorney’s act, the client would have prevailed).

Affirmed.

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