A18-1375

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1301
A18-1375

Gregory T. Dyrdal,
Appellant (A18-1301),

James Wallenberg, et al.,
Appellants (A18-1375),

vs.

Lawrence A. McDowell, et al.,
Respondents.

Filed May 28, 2019
Affirmed
Jesson, Judge

Pennington County District Court
File No. 57-CV-16-1028

David C. McLaughlin, Fluegel, Anderson, McLaughlin & Brutlag, C hartered, Ortonville,
Minnesota (for appellant Dyrdal)

Jeramie Steinert, Steinert P.A., LuAnne M. Petricka, Petricka Law Firm P.A., Minneapolis,
Minnesota (for appellants Wallenberg, et al.)

Mark A. Grainger, Neil Law Firm, P.C., East Grand Forks, Minnes ota (for respondents
McDowell, et al.)

Considered and decided by Jesson, Presiding Judge; Ross, Judge ; and Peterson,
Judge.


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

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U N P U B L I S H E D O P I N I O N
JESSON, Judge
Appellant Gregory Dyrdal leased property from David Wallenberg with the option
to purchase it. But when he attempted to exercise his option t o purchase the land, he
learned that the Wallenberg Family Trust actually owned the property. Appellants trustees
of the Wallenberg Family Trust refused to honor Dyrdal’s purcha se option, and litigation
ensued. Respondent Lawrence McDo well represented Dyrdal in the early stages of that
litigation, which concluded with a jury award in favor of the trust.
Subsequently, Dyrdal and the trustees of the Wallenberg Family Trust commenced
litigation against McDowell and re spondent Wurst and McDowell L td. (collectively,
McDowell) asserting claims for legal malpractice and slander of title, respectively. In these
consolidated appeals, Dyrdal and the trustees challenge the district court’s decision to grant
summary judgment in favor of McDowell on each of their respective claims. Because we
conclude that no genuine issues of material fact exist with eit her Dyrdal’s or the trustees’
claims, we affirm.
FACTS
Underlying litigation
In April 2009, appellant Gregory Dyrdal leased a large piece of farmland from
David Wallenberg. The lease gave Dyrdal the option to purchase the land. In March 2010,
Dyrdal recorded a copy of the lease with the Office of the Penn ington County Recorder.
Unbeknownst to Dyrdal, the farmland he was leasing was owned by the Wallenberg Family

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Trust (the trust), not David Wallenberg. 1 In fact, David Wallenbe rg is not and has never
been a trustee of the trust.
In late 2010, when Dyrdal sought to exercise his option to pur chase the land, he
learned that the trust owned the land in question. The trustee s told Dyrdal that they were
unwilling to sell the land pursuant to the terms in the lease b ut offered him the option to
purchase the property at a higher price. Dyrdal declined. Ins tead, he hired an attorney—
respondent Lawrence McDowell—a nd began pursuing a civil action against James
Wallenberg as trustee and David Wallenberg as lessor.
McDowell drafted a complaint se eking specific performance of Dyrdal’s purchase
option in the lease. Also as part of his representation of Dyr dal, McDowell prepared a
notice of lis pendens2 and filed it with the Pennington County Recorder on January 5, 2011.
But the notice of lis pendens c ontained several errors, including stating the wrong county
in which the action was filed. Further, at the time that the notice of lis pendens was filed,
the complaint had not yet been filed with the district court or formally served upon either
opposing party. The complaint was personally served upon James Wallenberg as trustee
three days later and upon David Wallenberg on March 2, 2011. A fter being served with

1 The Wallenberg Family Trust owns a significant amount of land, including the farmland
Dyrdal leased. Indeed, the record suggests that on at least on e prior occasion, David
Wallenberg may have been involved in a separate land transaction with the Dyrdal family,
which the trust subsequently completed.
2 A notice of lis pendens is a “warning that title to property i s in litigation and impedes a
property owner’s right to free alienability of real estate.” Bly v. Gensmer, 386 N.W.2d 767,
769 (Minn. App. 1986).

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the complaint, trustee James W allenberg filed counterclaims aga inst Dyrdal seeking a
judgment quieting title and asserting that Dyrdal was liable for slander of title.
McDowell withdrew as Dyrdal’s counsel in August 2011, but liti gation continued
for several years with different counsel representing Dyrdal. In April 2013, the district
court issued a nearly 27-page partial summary judgment order in which it evaluated David
Wallenberg’s authority to bind the trust and considered whether the trust had taken any
action to ratify Dyrdal’s lease during the time he occupied and farmed the land. The district
court concluded that Dyrdal did not have an ownership interest in the disputed property,
and accordingly, that his recorded lease and the notice of lis pendens were null and void.
But with respect to the slander-of-title counterclaim, the district court determined that there
were factual issues for a jury to decide.
At trial, trustee James Wallenberg presented two theories of l iability: that Dyrdal
committed slander of title (1) by recording the lease and (2) by causing the notice of lis
pendens to be filed. The jury found Dyrdal liable for slander of title and awarded damages
in the amount of $34,997 to the trust. But the jury’s special- verdict form did not specify
whether its slander-of-title findi ng was based on the filing of the lease, the filing of the
notice of lis pendens, or both. Nor did the jury allocate dama ges between the alternative
theories of liability.
Present Litigation
In December 2016, Dyrdal filed a lawsuit against McDowell and his law firm,
claiming that McDowell breached fiduciary duties stemming from his attorney-client
relationship with Dyrdal in the underlying litigation. In March 2017, the trustees—unable

5
to collect damages from Dyrdal—a lso commenced an action against McDowell and his
firm, asserting that McDowell was liable for slander of title b ecause he improperly filed
the notice of lis pendens during the underlying litigation.3 The district court consolidated
the two cases.
McDowell moved for summary judgment against both Dyrdal and th e trustees. The
district court granted McDowell’s motion, reasoning that Dyrdal could not establish that
McDowell’s actions were the cause of his damages and that the t rustees could not
demonstrate that McDowell acted w i t h m a l i c e , a r e q u i r e d e l e m e n t for slander-of-title
claims. The district court further denied a motion from the tr ustees to amend their
complaint to add causes of ac tion and seek punitive damages. D yrdal and the trustees
appeal.
D E C I S I O N
On appeal from a grant of summa ry judgment, we review de novo whether the
district court correctly applied the law and whether any genuine issues of material fact exist
to preclude summary judgment. Riverview Muir Doran, LLC v. JADT Dev. Grp., LLC ,
790 N.W.2d 167, 170 (Minn. 2010). A district court should gran t a motion for summary
judgment when the record shows no genuine issue of material fac t, and on appeal, we
review the evidence in the light most favorable to the party ag ainst whom judgment was
granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

3 The trustees’ action against Mc Dowell is based on the theory t hat he is jointly and
severally liable for the trust’s damages resulting from Dyrdal’s slander of title. The trustees
acknowledge that they are not entitled to additional damages from McDowell arising from
the same slander of title.

6
I. The district court correctly c oncluded that no genuine issue s of material fact
exist with respect to Dyrdal’s claim against McDowell.

Dyrdal argues that the district court erred by concluding that there were no genuine
issues of material fact related to his claim against McDowell. Dyrdal’s claim against
McDowell—that McDowell’s errors in preparing and filing the not ice of lis pendens
constituted a breach of his fiduciary duties stemming from thei r attorney-client
relationship—sounds in legal mal practice. In order to establis h a claim for legal
malpractice, Dyrdal must demonstrate (1) an attorney-client rel ationship, (2) acts
constituting negligence or breach of contract, (3) that those a cts proximately caused his
damages, and (4) that but for McDowell’s conduct, Dyrdal would have been successful in
his action. Frederick v. Wallerich, 907 N.W.2d 167, 173 (Minn. 2018).
In determining that no genuine issue of material fact existed, the district court
focused on the element of causation. The district court conclu ded that in the underlying
litigation, McDowell only represen ted Dyrdal for a short period of time in the course of
multi-year litigation. McDowell drafted a complaint and prepared and filed the notice of
lis pendens, but his representa tion of Dyrdal ceased in August 2011. It was not until
April 2013—almost two years later —that the district court grant ed partial summary
judgment in favor of the trustees. And McDowell was not involved in the jury trial at all.
As a result, the district court found that McDowell’s conduct was not the proximate cause
of Dyrdal’s liability or the judgment against him in the underlying litigation.
Additionally, the district court determined that Dyrdal could n ot establish that but
for McDowell’s conduct, he would have been successful in defending against the slander-

7
of-title counterclaim. That conclusion was based on the fact t hat in the underlying
litigation, two theories of Dyrdal’s liability for slander of title were argued: liability related
to his recording of the lease and liability related to the fili ng of the notice of lis pendens.
Because the jury did not specify what conduct supported its finding of liability or allocate
damages between each theory of liability, the district court concluded that Dyrdal did not—
and cannot—demonstrate that but for McDowell’s negligence in fi ling the notice of lis
pendens, he would have successfully defended against the slander-of-title counterclaim in
the underlying litigation. Becau se Dyrdal could not establish the required causation
element, the district court concluded he did not establish a pr ima facie case for legal
malpractice and granted summary judgment in favor of McDowell.
We agree with the district court. No evidence suggests that bu t for McDowell’s
errors in filing the notice of lis pendens, Dyrdal would have defeated the trustees’ slander-
of-title counterclaim. First, the jury in the underlying litig ation was presented with
arguments that Dyrdal committed slander of title both by recording his lease and by filing
the notice of lis pendens. It is undisputed that McDowell had no involvement in the
recording of the lease. And nothing on the special verdict for m asked the jury to identify
whether its finding of liability s temmed from the recording of the lease, the filing of the
notice of lis pendens, or both. Further, damages were not allo cated between differing
theories of liability. Although Dyrdal could have sought changes in the format and wording
of the special verdict form, he did not. Nothing in this record would provide a jury in the
current litigation with the basis to conclude that the slander- of-title counterclaim against
Dyrdal would have been resolved differently but for McDowell’s mistakes in filing the

8
notice of lis pendens. 4 Accordingly, there is no genuine issue of material fact regar ding
causation.
Because Dyrdal failed to establish a prima facie case of legal malpractice or that the
evidence in the record creates a genuine issue of material fact, we affirm the district court’s
grant of summary judgment with respect to Dyrdal’s legal malpractice claim.
II. The district court did not err by granting McDowell’s motio n for summary
judgment with respect to the trustees’ claims.

A claim for slander of title requires four elements: (1) a false statement concerning
real property owned by the plaintiff, (2) the false statement was published to others, (3) the
false statement was published ma liciously, and (4) the publicat ion of the false statement
caused the plaintiff loss in the form of special damages. Paidar v. Hughes, 615 N.W.2d
276, 279-80 (Minn. 2000). And “[t]he filing of an instrument k nown to be inoperative is
a false statement that, if done maliciously, constitutes slander of title.” Id. at 280. But if
an individual files an instrument—like a notice of lis pendens—which he has a right to file,
he does not commit slander of title. Kelly v. First State Bank of Rothsay , 177 N.W. 347,
347 (Minn. 1920). In slander-o f-title claims, “malice requires a [ r ] e c k l e s s d i s r e g a r d
concerning the truth or falsity of a matter . . . despite a high degree of awareness of probable
falsity or entertaining doubts as to its truth.” Brickner v. One Land Dev. Co., 742 N.W.2d
706, 711–12 (Minn. App. 2007) (quotation omitted), review denied (Minn. Mar. 18, 2008).

4 Dyrdal’s approach would, in esse nce, require a second jury to rehear and the parties to
retry the earlier case. Certainly, nothing in the record provides a new jury with the ability
to determine how the jury in t he underlying litigation apportio ned damages between the
two theories of liability.

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The trustees’ claim against McDowell for slander of title stems from his filing of
the defective notice of lis pendens for Dyrdal. The trustees allege that McDowell filed the
notice of lis pendens for an improper purpose, noting that he filed the instrument before a
complaint had been filed. 5 See Minn. Stat. § 557.02 (2018) (stating that a notice of lis
pendens may be filed “at the time of filing the complaint, or at any time thereafter during
the pendency of such action”). Citing McDowell’s years of experience as an attorney as
evidence, the trustees maintain that he knew the notice of lis pendens was improper.
But the district court concluded that although the notice of li s pendens contained
several legal errors, the trustees did not raise any genuine issues of material fact regarding
the malice element of their claim. The district court cited statements, made by McDowell
in an affidavit, that he did not do any research regarding what must be done to file a notice
of lis pendens, and that he “th ought that [it] could be recorde d when the paperwork was
processed through a process server” and “didn’t realize . . . that the summons and complaint
had to be filed.” The district court further concluded that Mc Dowell was acting in good
faith when he filed the notice of lis pendens, noting that McDo well believed his client’s
claim that he was entitled to the disputed land. And that clai m was neither quickly nor
easily dismissed. As the district court noted, although the court in the underlying litigation
ultimately concluded that Dyrdal had no claim to the land, it took nearly 27 pages of legal
analysis to reach that conclusi on. In sum, the district court here concluded that because

5 It is undisputed that McDowell filed the notice of lis pendens before a complaint was filed
in the underlying litigation.

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McDowell was acting “with a good faith belief in his client’s claim of title to the property,
or [a] claim to a colorable interest in the property” when he filed the notice of lis pendens,
the trustees did not demonstrate the required element of malice. We agree.
No evidence supports the conclusion that McDowell acted with “ a [r]eckless
disregard concerning the truth or falsity of a matter.” Brickner, 742 N.W.2d at 711–12.
On the contrary, the record warrants the conclusion that in filing the notice of lis pendens,
McDowell acted in good faith based on his belief that Dyrdal had a colorable claim to the
disputed property. McDowell’s affidavit stated that he based h is actions on information
Dyrdal gave him, that he did not do a title search on the prope rty, and that he believed
Dyrdal could have an interest in the property based on the trust’s actions of accepting rent
payments from Dyrdal and past dealings with David Wallenberg. And this testimony is
supported by Dyrdal. In a deposition, Dyrdal stated that he told McDowell he was trying
to preserve any rights he had under the lease, not that he wanted to intentionally or
unnecessarily hinder the property . Accordingly, no evidence in the record suggests that
McDowell acted with malice. See Kelly, 177 N.W. at 347 (holding that an individual does
not commit slander of title by filing an instrument which he has a right to file).
But the trustees argue that the district court erred in its de cision because they are
entitled to a presumption of malice where the notice of lis pen dens contained false
statements (that an action had already been commenced) and Dyrd al had no valid interest
in the property sufficient to support the filing of a notice of lis pendens.6 And the trustees

6 The district court did not address this argument regarding a p resumption of malice in its
order.

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contend that although that presumption of malice can be rebutte d, it cannot be rebutted at
the summary judgment stage. See Southcross Commerce Ctr., LLP v. Tupy Props., LLC ,
766 N.W.2d 704, 709 (Minn. App. 2009) (holding that when a nonm oving party presents
“undisputed evidence that conclu sively establishes a rebuttable presumption in its favor,
the moving party is precluded from obtaining summary judgment”).
We agree that when a publication is false and made by someone w ith no legal
interest in the disputed property, malice is presumed. Virtue v. Creamery Package Mfg.
Co., 142 N.W. 1136, 1136 (Minn. 1913). But if the publication is asserted by someone in
good faith with a colorable claim to the disputed property, then the presumption of malice
is overcome. Id. That is precisely what happened here.
At the time the notice of lis pendens was filed, both Dyrdal and his attorney believed
that Dyrdal had a colorable claim to the disputed property. An d this belief was based on
and supported by Dyrdal’s lease, actions of the trust, and past dealings with David
Wallenberg. Accordingly, because McDowell had a good-faith bel ief that Dyrdal had a
colorable claim to the disputed property when he filed the notice of lis pendens, the trustees
are not entitled to a presumption of malice. Because the trust ees were not entitled to a
presumption of malice and because they did not demonstrate actu al malice, the district
court correctly granted summary judgment in favor of McDowell.7

7 Further, the district court di d not abuse its discretion by de nying the trustees’ motion to
amend their complaint to seek punitive damages. We will not re verse a district court’s
denial of a motion to add a claim for punitive damages unless there is a demonstrated abuse
of discretion. McKenzie v. N. States Power Co., 440 N.W.2d 183, 184 (Minn. App. 1989).
And punitive damages are allowed only in cases where clear and convincing evidence
establishes that a defendant’s acts “show deliberate disregard for the rights or safety of

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In sum, the district court correctly concluded that no genuine issues of material fact
exist with respect to either Dyr dal’s or the trustees’ claims a gainst McDowell. As such,
the district court properly gran ted summary judgment in favor o f McDowell.
Affirmed.

others.” Minn. Stat. § 549.20, subd. 1(a) (2018). The distric t court determined that the
trustees did not make a prima facie showing that McDowell showe d deliberate disregard
for their rights, reasoning that McDowell had a good-faith beli ef that Dyrdal “had a
colorable claim” to the land in dispute when he filed the notic e o f l i s p e n d e n s . T h i s
conclusion is supported by the record. Although McDowell’s act ions in filing the notice
of lis pendens were error-ridden, the record does not demonstra te that his actions rise to
the level of “deliberate disregard” required for a district court to allow a claim for punitive
damages. See Jensen v. Walsh, 623 N.W.2d 247, 251 (Minn. 2001) (noting that the focus
in determining whether punitive damages should be allowed is on the wrongdoer’s conduct
rather than the resulting damages).