John Kalenberg, et al., Appellants,

This opinion will be unpublished and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
A17-0756

John Kalenberg, et al.,
Appellants,

vs.

Steingart, McGrath & Moore, P.A.,
Respondent,

Terrance W. Moore, et al.,
Respondents.

Filed January 22, 2018
Affirmed
Ross, Judge

Wright County District Court
File No. 86-CV-16-5427

Markus C. Yira, Yira Law Office, Ltd., Hutchinson, Minnesota; and

Julie Wacker Hanjani, Hutchinson, Minnesota (for appellants)

Kelly A. Putney, Uzodima Franklin Aba- Onu, Bassford Remele, P.A., Minneapolis,
Minnesota (for respondent Steingart, McGrath & Moore)

Mark A. Bloomquist, Jennifer M. Zwilling, Julia J. Nierengarten, Meagher & Geer,
P.L.L.P., Minneapolis, Minnesota (for respondents Hellmuth & Johnson and Terrence W.
Moore)

Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Bratvold,
Judge.
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U N P U B L I S H E D O P I N I O N
ROSS, Judge
John and Linda Kalenberg sued their attorney and his law firms for legal malpractice
alleging that the attorney’s ineffective representation caused them to lose their lawsuit
against a couple who allegedly breached an agreement to purchase their home. The district
court dismissed the Kalenbergs’ legal- malpractice suit based on Minnesota Statutes,
section 544.42 (2016), because they failed to serve an affidavit of expert review within 60
days of the defendants’ demand for one. We conclude that the Kalenbergs needed expert
testimony to establish that their former attorney’s representation constituted professional
malpractice or negligence, and that the Kalenbergs gave the district court no evidentiary
support for their assertion that the attorney and his firm s had agreed to toll the expert-
affidavit deadline. We therefore affirm the district court’s decision to dismiss the
Kalenbergs’ suit for failing to timely provide an expert affidavit.
FACTS
Terrance Moore is an attorney who represented John and Linda Kalenberg in their
unsuccessful breach-of-contract lawsuit against Thomas and Holly Klein for the Kleins’
failure to purchase the Kalenbergs’ home under a purchase agreement. The Kalenbergs
brought this legal- malpractice suit against Moore and his current and former law firms,
Steingart, McGrath & Moore, and Hell muth & Johnson, alleging legal malpractice,
negligence, and breach of contract. The Kalenbergs’ August 2016 complaint asserts that
Moore’s representation was deficient in a number of ways. It asserts, for example, that
Moore prematurely sought summary judgment and negligently failed to complete the
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discovery necessary to defend against the Kleins’ competing motion for summary
judgment. It alleges that he requested no depositions, engaged no expert witnesses, posed
no interrogatories, requested no admissions, and tardily asked the district court to allow for
depositions only after the discovery deadline. It also alleges that Moore failed to provide
the district court with documentary evidence that would have supported their legal position.
And it maintains that he argued one erroneous point of law that he told the court was
“absolutely dispositive” while he failed to argue the correct, favorably dispositive points
of law. The complaint included no initial affidavit of expert review under Minnesota
Statutes section 544.42, subdivision 2(1) (2016).
On September 9, 2016, the defendant law firms served answers expressly
demanding that the Kalenbergs comply with section 544.42 and submit an affidavit of
expert review. The Kalenbergs provided no affidavit. Counsel for the parties met in
October and, according to written testimony of the Kalenbergs’ attorney, Julie Hanjani,
they “discussed the underlying case moving forward with informal discovery and set up a
time to meet in early November to further our discussions.” On November 15 and 16, the
defendant firms moved the district court to dismiss for the Kalenbergs’ failure to provide
their initial expert affidavit and their failure to provide the affidavit within 60 days of the
demand.
Two weeks later, the Kalenbergs’ attorney wrote to counsel for the law firms to
make them “aware of the fact that [she had] been out of the office for the most part of the
last 5 weeks due to a serious health issue with [her] father” and that she felt “blindsided”
by the motions to dismiss. She explained, “It was my belief at our discussions on
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October 25, 2016, we agreed to hold off on experts, formal discovery and the like,
including my affidavit of experts.” The Kalenbergs served their initial expert affidavit on
December 1, 2016, and argued to the court that they had good cause for missing the
statutory affidavit-serving deadline.
The district court found that the Kalenbergs failed to submit the affidavit within the
statutory period and that the parties never agreed to extend the deadline. The district court
therefore dismissed the complaint with prejudice.
The Kalenbergs appeal.
D E C I S I O N
The Kalenbergs ask us to reverse the district court’s decision granting Moore and
his law firms’ motions to dismiss based on the Kalenbergs’ failure to comply with the
expert-affidavit requirement of Minnesota Statutes section 544.42 (2016). Expert affidavits
are required in every “action against a professional alleging negligence or malpractice in
rendering a professional service where expert testimony is to be used by a party to establish
a prima facie case.” Minn. Stat. 544.42, subd. 2. We generally review dismissals under this
section for an abuse of discretion, but we address any legal issues, like whether the statute
requires expert testimony and a corresponding affidavit, de novo. Brown-Wilbert, Inc. v.
Copeland Buhl & Co., P.L.L.P., 732 N.W.2d 209, 215 (Minn. 2007). The Kalenbergs argue
that the expert-affidavit deadlines are irrelevant because the statute does not require an
expert affidavit in this case. They argue alternatively that the district court abused its
discretion by dismissing the suit because the parties agreed to toll the expert-affidavit
deadlines. Neither argument prevails.
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We reject the Kalenbergs’ argument that they needed no expert to establish legal-
malpractice liability here. To establish a prima facie case of legal malpractice a plaintiff
must show (1) the existence of an attorney -client relationship; (2) acts of the attorney
constituting negligence; (3) that such acts proximately caused the plaintiff’s damages; and
(4) that but for the attorney’s conduct, the plaintiff would have been successful in the
prosecution of the action. Guzick v. Kimball, 869 N.W.2d 42, 47 (Minn. 2015). “Expert
testimony is generally required to establish the standard of care applicable to an attorney
whose conduct is alleged to have been negligent, and further to establish whether the
conduct deviated from that standard.” Jerry’s Enters., Inc. v. Larkin, Hoffman, Daly &
Lindgren, Ltd., 711 N.W.2d 811, 817 (Minn. 2006) (quotation omitted). We are certain
that, without expert testimony, no lay jury could possibly know the legal standard of care
to apply to Moore’s litigation conduct and assess whether his alleged deficiencies failed
that standard. The complexity of the allegations confirm s this. The Kalenbergs’ claims
against Moore depend on a jury being able to understand, for example, just how it is that
“Moore failed to argue all elements of the Summary Judgment Motion and erroneously
focused on statutory cancellation, providing to the Court incomplete and inaccurate
information and incorrect rulings of case law.” We do not suppose that a typical juror
understands enough about the meaning and application of case law as applied to statutory
cancellation in the context of a summary -judgment motion to decide whether Moore’s
decisions were professionally deficient. We have reviewed the many allegations in the
complaint and are satisfied that none could stand without expert testimony.
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We recognize that there are legal-malpractice cases that do not require expert
testimony. For example, the supreme court held that no expert testimony was necessary to
support one component of a complex claim of legal malpractice—the lawyer’s
dissemination of financial documents that exposed his client to harm. Hill v. Okay Const.
Co., Inc., 312 Minn. 324, 337–38, 252 N.W.2d 107, 116–17 (1977). But this was because
the lawyer’s alleged deficiency, unlike any of the alleged deficiencies here, was apparent
to the jury without an expert:
The jury found as fact that Ranta approved the execution and
dissemination of the financial profiles. The testimony was
uncontradicted, and the court found that Okay had instructed
Ranta to protect it from the claims of Romans’ creditors. The
impact of the financial profiles is obvious to any layman. The
Hills recognized, as did the suppliers who received the profiles,
that the profiles meant Okay would share responsibility for the
debts incurred with Romans. If that were not obvious, the
profiles would not have been necessary. Expert opinion would
add nothing to that conclusion.

Id. A jury might similarly need no expert to assess a simple claim that an attorney missed
an appeal -filing deadline or misappropriated client funds. But we have found no case
holding that an attorney’s allegedly inadequate legal argument or insufficient discovery
efforts can be established without an expert’s explanation of the standard of care.
Because the Kalenbergs’ legal- malpractice claims needed expert testimony, we
must decide whether the district court acted within its discretion by dismissing their
complaint for failure to timely file an affidavit of expert review. The penalty for failing to
provide expert affidavits “within 60 days after demand for the affidavit” is “ mandatory
dismissal of each cause of action with prejudice as to which expert testimony is necessary
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to establish a prima facie case.” Minn. Stat. § 544.42, subd. 6. The Kalenbergs recognize
that they missed this deadline, but they argue that the district court should not have
dismissed their suit because they held a good-faith belief that the parties had agreed to
delay the deadline. The argument fails.
It is true that parties may, by agreement, allow for extensions of the time limits for
the service of expert affidavits required b y section 544.42. Minn. Stat. § 544.42, subd.
(4)(b). But we see no basis to reverse the district court’s determination that the parties made
no delaying agreement here. The Kalenbergs’ only evidence purportedly challenging the
district court’s determination is the affidavit prepared by their attorney, Hanjani. But that
affidavit does not even allege that the parties agreed to delay the deadline; in fact, it speaks
only of Hanjani’s own oral statements and her desires at the October 2016 meeting of
attorneys. It says that Hanjani “made it clear to counsel” that she and her clients would “be
open and provide any and all documentation they requested.” It says that “we wished to
work toward resolution prior to the filing of the Complaint, discovery and other
documents.” And it says that “[Hanjani] also informed proceeding with informal discovery
that our intention not to file was in part, to not make public the Complaint, to spare the
Defendants.” These statements do not establish that any agreement to toll the expert-
affidavit deadline was even discussed, let alone achieved.
On brief to this court, the Kalenbergs maintain that their expert-affidavit omissions
resulted from their “reliance on the representations made by Counsel,” but they cite no
such representations anywhere in the record. They also assert, “It was understood that any
filing requirements would be tolled pending settlement discussions.” But tolling “any filing
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requirements” would not avoid the service requirements at issue here, and even if this were
not so, we have seen no written communication or even alleged oral communication that
would warrant the claimed tolling understanding. We similarly see nothing in the record
implying that the respondents’ attorneys took any action manifesting their intent to waive
the 60-day service period after they demanded compliance. To the contrary, they submitted
their own affidavit flatly denying that they ever agreed to extend any deadline. So even
though a district court’s decision regarding the extension of a procedural statute’s time
limits is discretionary and will not be reversed absent an abuse of that discretion, Lake
Superior Ctr. Authority v. Hammel, Green & Abrahamson, Inc., 715 N.W.2d 458, 471
(Minn. App. 2006), in this case the district court had no factual basis on which it could
have even considered extending the deadline.
In sum, all of the Kalenbergs’ claims against Moore and his law firms require expert
testimony to establish a prima facie case of negligence or malpractice, and the Kalenbergs
did not timely provide the statutorily required expert affidavits. They also failed to provide
evidentiary support for their assertion that the parties agreed to toll the statutory deadline
after the respondents demanded compliance. The district court properly followed the
statute and dismissed the suit.
Affirmed.