Galyna Anderson, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0687

Galyna Anderson,
Appellant,

vs.

Melissa Houghtaling, et al.,
Respondents.

Filed December 26, 2017
Affirmed in part, reversed in part, and remanded
Schellhas, Judge

Hennepin County District Court
File No. 27-CV-16-15019

Mark E. Czuchry, Czuchry Law Firm, LLC, Victoria, Minnesota (for appellant)

Lewis A. Remele, Jr., Peter L. Gregory, Bassford Remele, P.A., Minneapolis, Minnesota
(for respondents)

Considered and decided by Halbrooks, Pr esiding Judge; Schellhas, Judge; and Kirk,
Judge.
U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant challenges the district court’s summary-judgment dismissal of her claims
against respondents for legal malpractice, br each of contract, negligence, and fraudulent
misrepresentation. We affirm in part, revers e in part, and remand for further proceedings
consistent with this decision.

2
FACTS
Edward Anderson (decedent) created a revocable trust in 1995. He married
appellant Galyna Anderson (Ande rson) in 2004. Decedent beca me terminally ill and, on
November 3, 2008, executed a third and supe rseding amendment to his revocable trust.
Under the third amendment, decedent devised a ll patents and stocks of his businesses to
his son, Merritt Anderson, and he created a marital trust for Anderson that would pay her
income and a lifetime interest in the parties’ homestead, subject to conditions that included
Anderson’s death or her commission of “waste upon the [the homestead].”1 The same day
that he executed the third am endment to his revocable tr ust, decedent and Anderson
conveyed the homestead by deed to decedent, as trustee of his revocable trust.
Unbeknownst to Anderson, decedent contac ted his attorney two days later about
again revising his revocable trust. On Januar y 8, 2009, decedent executed a fourth and
superseding amendment to his revocable tr ust. The fourth amendment provided for
termination of the marital trust four years following decedent’s death, at which time
Anderson’s right to receive net income from th e marital trust and her right to live in the
homestead would cease. Decedent died on March 19, 2009, and Merritt Anderson became
trustee of the trust. Decedent’s will disposed of a nominal amount of tangible personal
property and has never been probated.

1 Article 6.1.1 of the marital trust states: “The net income (which shall [sic] income capital
gains) shall be paid to my spouse at least quarter-yearly.” Article 6.1.2 states: “My wife
shall be responsible for the payment of r eal estate taxes, utilities, insurance, and
maintenance for the house. The trustee shall be responsible for capital improvements and
expenses.”

3
After learning about the fourth amendment to the trust, Anderson hired legal counsel
to whom the trustee provided a ma rital-trust inventory as of the date of decedent’s death.
The inventory showed that the trust owned assets worth $209,782.36 plus the homestead
worth $484,100. Anderson believed that the trus tee’s values attributed to decedent’s
business interests could be significantly higher. On November 5, 2009, Anderson’s counsel
made a demand for a life-estate in the homestead, and $600,000 in cash or publicly traded
securities, among other things . The trustee rejected Anders on’s demand, and Anderson’s
counsel referred her to litigation attorneys.
On December 9, 2009, Anderson met with respondents Melissa Houghtaling and
Rebecca Heltzer, then of Heltzer & Burg, P.L.C. 2 Anderson claims that she asked
respondents about a December 19, 2009 deadline with in which to file a petition for her
elective share and homestead election. Anderson also claims that respondents told her that
no deadline was impending and that she had three years within which to file a petition for
her statutory elections. On December 16, 2009, Anderson signed a retainer agreement with
respondents and gave them a $5,000 retainer.
On December 16, 2009, Houghtaling researched the elective-shares issue and began
reviewing documents. On Janu ary 5 and 6, 2010, Houghta ling corresponded with the
trustee’s attorney. In correspondence, the trustee’s atto rney opined to Houghtaling that
Anderson’s execution of the d eed to the homestead on Nove mber 3, 2009, constituted a

2 Respondents Houghtaling and Heltzer have practiced law at Heltzer & Burg P.L.C. and
Heltzer & Houghtaling, P.A. Houghtaling subsequently opened Houghtaling Family Law
Office, P.A.

4
written waiver of her statutor y right to a life estate in the homestead. Houghtaling
researched the issue and, in February 2010, she told Ande rson in correspondence that “it
is pivotal” to understand what exactly Anderson had consented to in relation to the third
amendment to the trust and the homestead. Houghtaling also said that until she determined
the nature of Anderson’s consent with the deed signing, she did “not believe there [were]
any probate assets” to initiate probate proceedings.
On March 30, 2010, Houghtaling proposed settlement to the trustee’s attorney and
requested, among other things, a life estate for Anderson in the ho mestead. Although the
trustee primarily rejected the settlement of fer, he agreed to some items, and Houghtaling
continued to negotiate with the trust attorney. On June 7, Houghtaling sent the attorney a
copy of a petition to reform th e trust and threatened to file it unless Anderson’s demands
were met. In response, on June 16, the trustee offered Anders on (1) a life estate in the
homestead, (2) $81,900 in cash payments, (3) an automobile , (4) household goods, and
(5) termination of the trust, with distribution of the residue to the trustee. At that time, the
value of the trust assets, exclusive of th e homestead, allegedly was $103,169.25, and
Anderson already had received trust cash assets worth $78,160.52.3
Anderson told Houghtaling that she woul d not accept the offer, and Houghtaling
asked to meet with Anderson, stating “I think we are closer to each other’s positions than
you might have originally th ought.” Houghtaling continued to negotiate with the trust’s
attorney but, in July 2010, the attorney told Houghtaling that if Anderson would not accept

3 This figure includes, among other things, payments made by the trustee on behalf of
Anderson for real estate taxes and insurance.

5
the previous offer, the trustee would simply administer the trust pursuant to its terms. The
trust attorney also notified Houghtaling that the trustee had received from the City of
Plymouth an “encroachment notice” about rubbish and trash on the lakeshore across from
the homestead. On August 2, Houghtaling informed Anderson about the trustee’s position
and the “encroachment notice.”
On October 7, 14, and 22, 2010, Houghtaling advised An derson by email that the
terms of the trust required her to pay the homestead property and insurance. In the
October 22 email, Houghtaling also advised Anderson to accept th e trustee’s settlement
offer. In November 2010, th e trustee received a delinquen t-property-tax notice on the
homestead, and the trustee contemplated evicting Anderson for committing waste on the
homestead. By January 2011, Anderson had not yet purchased homeowner’s insurance.
In late January 2011, Houghtaling sent th e trustee’s attorney a demand for further
information regarding the value of decedent’s interests in certain businesses. The attorney
provided the information and st ated that that decedent “alw ays stated that he was more
wealthy than he really was . . . [Anderson] is looking for a ssets and value where there is
none.” In May 2011, Anderson petitioned for constr uction and refo rmation of the trust,
including an assertion of her statutory right to a life estate in the homestead, and the probate
court scheduled a trial in February 2012. The trustee initiated an eviction action to remove
Anderson from the homestead based on waste.
In November 2011, respond ents ceased representing Anderson. Although Anderson
owed respondents on an outstanding balan ce, the parties dispute the reasons for the
cessation of representation. Anderson retained replacement counsel and, in January 2012,

6
Anderson received another sett lement offer from the trustee for a life estate in the
homestead. Anderson again rejected the offer, and her replacement counsel withdrew from
representing her.
On March 21, 2012, Anderson proceeded to trial pro se . The district court found
that Anderson’s nonpayment of property taxe s and insurance constituted waste, and that
her right to occupy the homeste ad had ceased under the term s of the trust. Additionally,
the court found that Anderson’s attempt to assert her stat utory rights in the homestead
failed because “(1) she gave consent to the transfer; and (2) she failed to assert her spousal
rights in a timely manner after [decedent’s] death.” (Emphasis added.) This court affirmed,
concluding, in part, that Anderson was “deemed to have consented to the non-testamentary
disposition” of the property, because she failed to petition for her homestead rights within
nine months of decedent’s death. In re Edward M. Anderson Tr., No. A12-1701, 2013 WL
3368467, at *3, *5 (Minn. App. July 8, 2013) (Anderson I).
In October 2016, Anderson filed a lawsuit against respondents alleging (1) legal
malpractice, (2) breach of contract, (3 ) negligence, (4) unjust enrichment, and
(5) fraudulent misrepresentation. 4 Respondents moved for summary judgment, and the
district court granted the motion and entere d judgment against Anderson on all of her
claims.
This appeal follows.

4 Anderson did not prosecute the unjust-enrichment claim.

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D E C I S I O N
I. Summary judgment on the legal-mal practice, breach-of-contract and
negligence claims

A. Collateral estoppel
As an initial matter, respondents argue that the doctrine of collateral estoppel bars
Anderson from raising her right to elect stat utory rights in the homestead because the
district court in Anderson I concluded that Anderson “consented to the previous disposition
of the homestead by signing the deed that transferred the homestead to a trust.” The element
of collateral estoppel disputed here is whether there is an issue that is identical to one
addressed in a prior adjudication.
“Whether collateral estoppel applies is a mixed question of law and fact, which we
review de novo.” State Farm Mut. Auto. Ins. Co. v. Lennartson , 872 N.W.2d 524, 534
(Minn. 2015). “Collateral estoppel bars the relitigation of issues that are both identical to
those issues already litigated by the parties in a prior action and necessary and essential to
the resulting judgment. Id. (quotation omitted) (emphasis in original).
Specifically, collateral estoppel a pplies when (1) the issue to
be addressed is identical to an issue in a prior adjudication;
(2) there was a final judgment on the merits in the prior
adjudication; (3) the estopped pa rty was a party or in privity
with a party to the prior adj udication; and (4) the estopped
party received a full and fair op portunity to be heard on the
adjudicated issue.

Id.
We conclude that the doctrine of colla teral estoppel does not bar Anderson from
raising her right to elect statutory rights in the homestead. Under the first collateral-

8
estoppel factor, “the issues must be the same as those involved in the prior action and must
have been necessary and essent ial to the resulting judgment.” Hauser v. Mealey , 263
N.W.2d 803, 808 (Minn. 1978). “If . . . the ju dgment might have been based upon one or
more of several grounds, but does not expr essly rely upon any one of them, then none of
them is conclusively es tablished under the doctrin e of collateral estoppel.” Id. This is so
because, in such a case, it is impossible for another court to distin guish which issue or
issues were adjudged by the rendering court. Id.
In Anderson I, the district court ruled that Anderson’s attempt to elect her statutory
rights in the homestead failed because “( 1) she gave consent to the transfer; and (2) she
failed to assert her spousal rights in a timely manner after [decedent’s] death.” (Emphasis
added.) The district court’s use of a conjunctive signifies that it relied upon both grounds
and that without one the other might have faile d. The district court did not expressly rely
solely on Anderson’s purported consent, i.e., waiver of her right to elect statutory rights in
the homestead by signing the deed, and therefore respondents have not “conclusively
established” the ground under the collateral-estoppel doctrine.
The doctrine of collateral estoppel therefore does not bar Anderson’s claim.
B. Negligence or breach of contract
Anderson argues that, but for respondents’ negligent delivery of legal services and
breach of contract, she would have petitioned for her statut ory homestead election and,
alternatively, would have accepted a settlement offer that granted her a life estate in the
homestead, among other things. To prevail in a legal-malpractice action a plaintiff must
show: “(1) the existence of an attorney-client relationship; (2) acts constituting negligence

9
or breach of contract; (3) that such acts were the proximate cause of the plaintiff’s damages;
and (4) that but for defendant’s conduct, the plaintiff would have been successful in the
prosecution or defense of the action.” Ryan Contracting Co. v. O’Neill & Murphy , LLP,
883 N.W.2d 236, 242 (Minn. 20 16) (quotation omitted). The alleged injury must be
“damage to or loss of a cause of action belonging to the plaintiff.” Jerry’s Enters., Inc. v.
Larkin, Hoffman, Daly & Lindgren, Ltd., 711 N.W.2d 811, 819 (Minn. 2006).
When applying the ‘but for’ test , we must envision what would
have occurred but for the negligent conduct. Showing that many
positive things could have occurred but for the negligent conduct
is not enough; instead , the plaintiff must introduce concrete
evidence of what the plainti ff would have done but for the
defendant’s negligence and wh at those actions would have
reasonably produced.

Schmitz v. Rinke, Noonan, Smoley, Deter, Colombo, Wiant, Von Korff & Hobbs, Ltd., 783
N.W.2d 733, 741 (Minn. App. 2010) (quotations and emphasis omitted) (citation omitted),
review denied (Minn. Sept. 21, 2010).
“[A] professional must use reasonable care to obtain the info rmation needed to
exercise his or her professional judgment, and failure to use such reasonable care would be
negligence, even if done in good faith.” Wartnick v. Moss & Barnett, 490 N.W.2d 108, 113
(Minn. 1992). “Whether the stan dard of care has been breached is a question of fact.”
Schmitz, 783 N.W.2d at 739. “If there are no factual disputes as to the standard of care and
whether it was breached, if, for example the plaintiff does not provide necessary expert
testimony on the issue, summary judgment is properly granted.” Wartnick, 490 N.W.2d at
116.

10
Appellate courts review a district court’s summary-judgment decision de novo and
“determine whether the district court prope rly applied the law and whether there are
genuine issues of material fact that preclude summary judgment.” Ryan Contracting, 883
N.W.2d at 242. Appellate courts “view the evidence in the light most favorable to the party
against whom summary judgment was granted.” STAR Ctrs., Inc. v. Faegre & Benson,
L.L.P., 644 N.W.2d 72, 76– 77 (Minn. 2002). “The moving party is entitled to summary
judgment as a matter of law if the non-moving party completely fails to prove an element
that is essential to the non-moving party’s case.” Rouse v. Dunkley & Bennett , P.A., 520
N.W.2d 406, 410 (Minn. 1994). The party resisting summary judgment must do more than
rest on “mere averments,” or merely create a metaphysical doubt as to a factual issue. DLH,
Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). Expert testimony is required to establish the
applicable standard of care and how a defendant attorney breached the standard. Guzick v.
Kimball, 869 N.W.2d 42, 49 (Minn. 2015).
In this case, respondents ag ree that an attorney-client relationship existed, but
challenge the remaining three elements. A nderson’s attorney submitted an affidavit
identifying an expert witness, as required by Minn. Stat. § 544.42, subd. 4 (2016). That
affidavit specified how respondents allegedly breached a standard of care, explaining that
the expert would testify to the applicable st andard of care. The expert would opine that
respondents had a duty to inform and disclose to Anderson the full context of her case so
that Anderson could make prope r decisions. The expert woul d testify that respondents
deviated from the standard of care by failing to (1) meet the statutory deadline to petition
for the homestead election, (2) advise A nderson that the deadline had passed on

11
December 19, 2009, and that her case was co mpromised, and (3) advise Anderson on the
concept and consequences of waste.5
The expert affidavit also stated that respondents breached a contract with Anderson.
The affidavit stated that Anderson’s expert had opined that Ande rson and respondents
signed a retainer agreement in December 2009, that respondents accepted payment for legal
services, and that respondents failed to perform their duties under the contract by failing to
file a homestead-election petition before the nine-month deadline a nd failing to inform
Anderson of the implications of that fact. We conclude that Anderson provided sufficient
evidence to create fact issues about whether respondents breached an applicable standard
of care or a contract.
In granting summary judgment to responde nts, the district court focused primarily
on causation, concluding that Anderson could not demonstrat e that she would have been
successful prosecuting her claim but for responde nts’ conduct. We recognize that even if
respondents were negligent in the delivery of legal services , Anderson’s claims may still
be barred if respondents’ advice was not the proximate cause of Anderson’s damages. See
Wartnick, 490 N.W.2d at 113 (stating that even if attorney was neglig ent in delivery of
legal services, client’s malpractice claims may still be barred if attorney’s advice was not
proximate cause of client’s damages). “The determination of proximate cause is normally
a question of fact for the jury.” Id. at 115. But “if reasonable minds cannot disagree,
proximate cause becomes a question of law.” Id.

5 Anderson’s attorney confirmed at oral argument that Anderson’s appeal does not concern
her elective share of the augmented estate.

12
For negligence to be the proximat e cause of an injury, it must
appear that if the act is one which the party ought, in the exercise
of ordinary care, to have anticipat ed was likely to result in injury
to others, then he is liable fo r any injury proximately resulting
from it, even though he could not have anticipated the particular
injury which did happen.

Id. at 113.
Respondents argue that Anderson’s right to a life estate in the homestead was
destroyed by her commission of waste on the property
6 and that, irrespective of
respondents’ acts or omissions, Anderson rejected the trustee’s settlement offer of a life
estate in the homestead against Houghtaling’s advice and that her rejection destroyed any
causal links in this case. “While the general rule is that a negligent actor is responsible for
all injuries which proximately result from a negligen t action, there is an exception: the
doctrine of superseding cause.” Wartnick, 490 N.W.2d at 113. The doctrine of superseding
cause recognizes that although an actor’s negligent actions ma y have put the plaintiff in
the position to be injured, and therefore cont ributed to the injury, the actual injury may
have been caused by an intervening event. Id.
An intervening, superseding cause “prevents the original negligent actor from being
liable for the final injury.” Id.
For an intervening cause to be considered a superseding cause, the
intervening cause must satisfy four elements: (1) its harmful
effects must have occurred after the original ne gligence; (2) it
must not have been brought about by the original negligence; (3) it

6 Respondents again contend that because the di strict court and this court concluded that
Anderson committed waste, Anderson is collaterally estopped from relitigating this issue.
But the issue here is not identical to the issue in Anderson I. In this case, the question
presented is whether respondents’ alleged conduct of failing to advise Anderson about the
concept and consequences of waste was negligent and caused harm.

13
must actively work to bring about a result that would not otherwise
have followed from the original negligence; and (4) it must not
have been reasonably foreseeable by the original wrongdoer.

Id. (quotation omitted).
We consider each of the Wartnick elements as it relates to this case. On the first
element, we conclude that fact questions re main about whether Ande rson’s waste or her
rejection of settlement offers occurred after the alleged “original negligence” or during it.
Anderson alleges that respondents’ negligent acts included missing the filing deadline, as
well as the failure to advise her about the consequences of waste or that her case was
compromised because the homestead-election deadline had passed.
On the second Wartnick element, the expert affidavit submitted by Anderson states
that Anderson’s expert has opined that Anderson’s waste was brought upon by the alleged
original negligence of her counsel missi ng the homestead-electi on filing deadline and
failing to so inform Anderson because Anderson was “placed in a position in which she
had access to very little financial resources. ” Additionally, Anderson asserts that the
commission of waste and her rejection of the settlement offers were brought on by
respondents’ failure to advise her.
On the third Wartnick element, fact issues exist as to whether Anderson’s conduct
“actively worked to bring abou t a result that would not ot herwise have followed” from
respondents’ conduct. Had Anderson not committed waste, she may have nevertheless lost
her interest in the homestead by failing to pe tition for her homestead election within nine
months of decedent’s death.

14
On the fourth Wartnick element, we cannot say, after viewing the facts in
Anderson’s favor, that Anderson’s waste and her rejection of settlement offers were not
foreseeable results based on her assertion that respondents did not e xplicitly tell her that
she could lose her interest in the homestead due to waste or as a result of the missed
statutory deadline.
Under the four Wartnick elements, reasonable minds could disagree that the
commission of waste and the rejection of the settlement offers were truly “independent”
and superseding causes separa te from respondents’ allege d misconduct. We therefore
conclude that genuine issues of material fact exist regarding proximate cause.
A plaintiff in a legal-malpractice case must show that “but for defendant’s conduct
the plaintiff would have been successful in the prosecution or defense of the action.”
Guzick, 869 N.W.2d at 47. Here, the district court reasoned that Anderson could not show
but-for causation because, before respondents began their legal representation of Anderson,
Anderson “destroyed” her claim to a life estate in the homestead and waived her statutory
right to petition for the homestead election by signing the deed in 2008 to transfer the
homestead to decedent’s revocable trust. We address Anderson’s homestead-election right
and consider other relevant provisions of Minnesota’s version of the Uniform Probate Code
(UPC) below.
Under the UPC, if a decedent has a surviving spouse and descendants at the time of
death, the homestead “descends free from any testamentary, or other disposition,” and the
surviving spouse retains a lif e estate in the homestead, unl ess the survivin g spouse has
consented “in writing” to that testamentary or “other disposition.” Minn. Stat. § 524.2-402

15
(2016) (emphasis added). A surviv ing spouse has a statutory righ t to elect a life estate in
his or her homestead. Minn. St at. § 524.2-211(f) (2016) (the homestead election). If the
homestead is subject to a testamentary disposition, i.e., a provision in a will, a petition for
the homestead election must be filed within nine months after the decedent’s death, or
within six months after probate of the deceden t’s will, whichever limitation last expires.
Id. (f)(1). If the homestead is subject to an “oth er disposition,” e.g., a revocable trust, a
petition for the homestead election must be file d within nine months after the decedent’s
death. Id. (f)(2).
If the surviving spouse fails to file her election for statutory rights in the homestead
under section 524.2-211(f), the surviving spouse is “deemed to consent to any testamentary
or other disposition of the homestead to which the spouse has not previously consented in
writing.” Minn. Stat. § 524.2-402(d). In this case, the homestead of decedent and Anderson
was subject to an “other disposition,” decedent’s revocable trust. Under the UPC, Anderson
therefore was required to file a petition for her homestead-election right within nine months
of decedent’s death—by December 19, 2009. Anderson did not do so and claims that she
failed to do so in reliance on respondents’ erroneous advice.
Respondents argue that Anderson could not have been harmed by any erroneous
advice about the nine-month de adline within which to file a petition to exercise her
homestead-election right because she waived he r right to a life estate in the homestead
when she signed the deed on November 3, 2008, transferring the homestead to decedent’s
revocable trust. The right of the surviving spouse to the homestead election may be waived
after marriage by “written contract, agreement, or waiver signed by the party waiving after

16
fair disclosure.” Minn. Stat. § 524.2-213 (2 016). We reject respondents’ argument that
Anderson waived her stat utory homestead-election ri ghts by signing the deed on
November 3, 2008. The record contains no evidence that decedent made “fair disclosure”
to Anderson before she signed the deed. And Anderson did not sign an agreement waiving
her statutory homestead-election rights. No record evidence shows that Anderson
consented to this dis position. We conclude that by signi ng the deed to transfer the
homestead to decedent’s revocable trust, A nderson did not waive he r homestead-election
rights under Minn. Stat. § 524.2-213.
Respondents also argue th at decedent’s provision in his trust regarding the
homestead did not constitute an “other disp osition” within the meaning of Minn. Stat.
§ 524.2-402. Respondents argue that the deed to decedent’s revocable trust on
November 3, 2008, disposed of the homestead. We disagree. Statutory interpretation is a
question of law, which we review de novo. Am. Tower, L.P. v. City of Grant, 636 N.W.2d
309, 312 (Minn. 2001). When unambiguous, a statute’s words and phrases are to be
construed according to their plain and ordinary meaning. Id. “But if a statute is susceptible
to more than one reasonable interpretation, the statute is ambiguous, and [appellate courts]
will consider other factors to ascer tain the legislature’s intent.” Staab v. Diocese of St.
Cloud, 853 N.W.2d 713, 717 (Minn. 2014).
A “disposition” is defined as “[t]he act of transferring something to another’s care
or possession, esp. by deed or will; the relinquishing of property.” Black’s Law Dictionary
572 (10th ed. 2014). Decedent’s trust was re vocable and amendable by decedent until his
death. Until then, decedent was the trustee of his revocable trust and retained the power to

17
revoke or amend his trust and to transfer and dispose of trust assets, and, in fact, he did so
after he and Anderson signed the deed to transfer the homestead to his revocable trust. We
conclude that the deed transferring the ho mestead to decedent’s revocable trust on
November 3, 2008, did not constitute an “o ther disposition” of the homestead because
decedent retained possession and control over the homestead.
Under the plain meaning of “disposition” in Minn. Stat. § 524.2-402, read in context
with the UPC provisions, a disposition of the homestead occurred at decedent’s death under
the terms of the fourth amended trust, when, as part of the residue of decedent’s trust, “all
interests in [decedent’s] principal residence, [passed] to [his] trustee to constitute a
Qualified Marital Trust pursuant to Section 6.1 for the primary benefit of [Anderson].” We
agree with Anderson that the district court erred as a matter of law when it determined that
Anderson could not show but-f or causation because she wa ived her homestead-election
rights by signing the deed to transfer the homestead to decedent’s revocable trust.
Anderson has also provided sufficient evidence to create multiple fact issues as to
the but-for causation element. Sh e petitioned the district court to reform the trust and to
allow her to file a petition fo r her homestead election. She has retained an expert who
purportedly will testify that re spondents’ failure to timely file the homestead-election
petition compromised her underlying case. And Anderson has averred that but for
respondents’ failure to inform her that th ey missed the homestead-election deadline, and
but for their continued advice that she had a ri ght to a life estate in the homestead, she
would have accepted the trustee’s July 2010 offer that included, among other things, a life
estate in the homestead. Anderson also stat ed that respondents’ co nduct caused her to

18
believe that the only risk she faced in rejecting the settlement offer and taking her case to
trial was a lesser amount of cash in an elective share. Respondents dispute this and
emphasize that they advised Anderson multiple times to accept the settlement offer.
Anderson also asserts that, but for resp ondents’ failure to advise her of the
consequences of waste, she would have (and could have) cured the waste. Respondents
dispute Anderson’s claim about their advice given, claiming that they advised Anderson
by telephone about the risks a ttendant to her waste and by em ail advised her to pay the
homestead expenses, pointing to the applicable provisions in the trust. These factual
disputes cannot be resolved on summary judgment.
We conclude that genuine issues of mate rial fact exist abou t whether respondents
breached an applicable standard of care or a contract and wh ether respondents’ breach, if
any, was the proximate and but-for cause of any damage to Anderson. We further conclude
that sufficient evidence proffered by Anderson cr eates genuine issues of material fact for
trial on her breach-of-contract claim.
Anderson also argues that the district c ourt erred by not applying the transactional
version of the but-for causation element for le gal malpractice. In a legal-malpractice case
involving a transactional matter, the but-for causation elem ent is modified to require the
plaintiff to show that, “but for defendant’s conduct, the plaintiff would have obtained a
more favorable result in the underlying transaction than the result obtained.” Jerry’s
Enters., Inc. , 711 N.W.2d at 819. Whether the traditional case-within-a-case but-for
causation element or the transactional but-for causation element should apply in this case
is a legal question, which we review de novo. See id. (reviewing de novo whether party

19
should be relieved from making a but-for causational showing between alleged negligence
and injury). Here, because no “underlying transaction” exists, the transactional version of
the but-for causation element for legal malpractice standard does not apply.
II. Fraudulent-misrepresentation claim
Anderson argues that the district cour t erred in granting respondents summary
judgment on the fraudulent-misrepresentation claim after concluding that Anderson could
not show that respondents inte nded to induce reliance. To make a prima facie claim of
fraudulent misrepresentation a plaintiff must show:
(1) there was a false representation by a party of a past or
existing material fact susceptible of knowledge; (2) made with
knowledge of the falsity of the representation or made as of the
party’s own knowledge without knowing whether it was true
or false; (3) with the intentio n to induce another to act in
reliance thereon; (4) that the representation caused the other
party to act in reliance thereon; and (5) that the party suffered
pecuniary damage as a result of the reliance.

Hoyt Props., Inc. v. Prod. Res. Grp., L.L.C., 736 N.W.2d 313, 318 (Minn. 2007).
On the intentional-induceme nt element, Anderson avers that respondents “cover[ed]
up” their alleged mistakes of missing the filing deadline by misl eading Anderson into
thinking that her claims were valid and not compromised. But “the party resisting summary
judgment must do more than rest on mere averments.” DLH, Inc., 566 N.W.2d at 71. After
careful review of the record, and the affidav its submitted in this ca se, we agree with the
district court that Anderson did not submit su fficient evidence to su pport the claim that
respondents attempted to “cover up” a mistak e and made misrepresentations with the
intention to induce reliance.

20
Furthermore, the record co ntains insufficient facts to demonstrate the fraudulent-
intent element. Fraudulent intent in a fraudul ent-misrepresentation claim is, “in essence,
dishonesty or bad faith. What th e misrepresenter knows or believes is the key to proof of
intent.” Florenzano v. Olson, 387 N.W.2d 168, 173 (Minn. 1986). Nothing in the record
demonstrates dishonesty or bad faith. The dist rict court did not err in granting summary
judgment in favor of respondents on the fraudulent-misrepresentation claim.
Viewing the facts in the light most favorab le to Anderson, we conclude that fact
issues preclude summary judgment on the le gal-malpractice, breach-of-contract, and
negligence claims and that the district court therefore erred by dismissing these claims on
summary judgment. We also conclude that the district court did not err by not applying the
transactional but-for standard of causati on and by dismissing A nderson’s fraudulent-
misrepresentation claim against respondents on summary judgment.
Affirmed in part, reversed in part, and remanded.