Thomas Sullivan, as guardian and conservator for Marc L. Beeman, Appellant,

This opinion will be unpublished and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
A18-2041

Thomas Sullivan,
as guardian and conservator for Marc L. Beeman,
Appellant,

vs.

Randy F. Boggio,
Respondent.

Filed September 3, 2019
Affirmed
Reyes, Judge

St. Louis County District Court
File No. 69DU-CV-17-607

James W. Balmer, Falsani, Balmer, Peterson & Balmer, Duluth, Minnesota (for appellant)

Paul C. Peterson, William L. Davidson, João C.J.G. de Medeiros, Lind, Jensen, Sullivan &
Peterson, P.A., Minneapolis, Minnesota (for respondent)

Considered and decided by Reyes, Presiding Judge; Tracy M. Smith, Judge; and
Florey, Judge.
U N P U B L I S H E D O P I N I O N
REYES, Judge
Appellant challenges the district court’s summary -judgment dismissal of his legal -
malpractice claim against respondent, arguing that (1) the claim is not barred by collateral

2
estoppel and (2) respondent owed appellant a duty of care. Respondent cross -appeals,
arguing that appellant’s action is barred by the statute of limitations. We affirm.
FACTS
In 2009, Marc Beeman and his then-wife Cheryl Beeman brought a medical -
malpractice suit in connection with an injury that Mr. Beeman suffered after a medical
procedure. In May 2010, the probate court appointed Ms. Beeman as Mr. Beeman’s
guardian and conservator. The Beemans later obtained a settlement, which the probate
court approved. The probate court allowed $309,500 of the settlement to be set aside for
the Beemans to purchase a home in joint tenancy to better suit Mr. Beeman ’s nee ds.
Ms. Beeman retained respondent and cross -appellant, attorney Randy F. Boggio, to
represent her for the establishment of a special -needs trust. Mr. Beeman had separate
counsel. The probate court established the special-needs trust in January 2011, funded the
trust with the rest of the settlement, and appointed Ms. Beeman as trustee.
In 2014, the Beemans separated . The probate court discharged Ms. Beeman as
guardian and conservator and appointed appellant and cross-respondent, Thomas Sullivan,
as the successor guardian, conservator, and trustee for the special -needs trust. The
Beemans dissolved their marriage and agreed to release all claims between them, including
claims related to the special -needs trust and the conservatorship. As part of the divo rce
settlement, Ms. Beeman received $60,000 from the sale of the house.
Sullivan, on behalf of Mr. Beeman, filed suit against Boggio, claiming $60,000 in
damages as a result of Ms. Beeman obtaining a share of the proceeds from the sale of the
home. Sullivan also claimed that Ms. Beeman converted $27,500 of the special-needs trust

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to herself. Sullivan claimed that Boggio improperly advised the Beemans to pur chase the
home in joint tenancy instead of advising them to purchase it as a trust asset.
Boggio moved for summary judgment, which the district court initially denied to
allow for further discovery. After discovery, Boggio again moved for summary judgment.
The district court granted the motion on the grounds that Sullivan’s action was an
impermissible collateral attack on the probate court orders and that Boggio owed no duty
of care to Mr. Beeman. This appeal follows.
D E C I S I O N
Summary judgment is proper when there is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter of law. Minn. R. Civ. P 56.01.
“We review the grant of summary judgment de novo to determine whether there are
genuine issues of material fact and whether the district court erred in its application of the
law.” Montemayor v. Sebright Prods., Inc., 898 N.W.2d 623, 628 (Minn. 2017) (quotation
omitted). We view the evidence in the light most favorable to the nonmoving party. Fabio
v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted).
A genuine issue of material fact exists “when reasonable persons might draw
different conclusions from the evidence presented.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69
(Minn. 1997). “[T]here is no genuine issue of material fact . . . when the nonmoving party
presents evidence which merely creates a metaphysical doubt as to a factual issue.” Id. at
71. For summary judgment, the nonmoving party may not rely upon mere averments in
the pleadings or unsupported allegations , but must come forward with specific facts to

4
satisfy its burden. Bebo v. Delander , 632 N. W.2d 732, 737 (Minn. App. 2001) , review
denied (Minn. Oct. 16, 2001).
As an initial matter, Sullivan contends that the district court lacked author ity to
revise its prior summary -judgment order. But a district court is not firmly bound by its
own prior decisions and has discretion to reconsider, clarify, modify, and even reverse its
own prior rulings. Emp’rs Nat. Ins. Co. v. Breaux , 516 N.W.2d 188, 191 (Minn. App.
1994), review dismissed (Minn. Sept. 16, 1994) . The district court initially denied
Boggio’s summary-judgment motion to allow for discovery based on the potential for fraud
or misrepresentation on the probate court although it found Sullivan’s evidence “to be
extremely weak.” After discovery, however, the district court found Sullivan’s evidence
to be “non -existent.” The district court determined that Sullivan “rest[ed] solely on
averments” and granted Boggio’s second motion for summary judgment. The district court
did not err by entering summary judgment following further development of the record.
I. Summary judgment is proper because Sullivan’s legal-malpractice claim is an
impermissible collateral attack on the probate court’s orders.

Sullivan argues that this matter cannot be barred by collater al estoppel because the
probate court matter is completely different from the present legal -malpractice matter.
Sullivan’s argument is misguided.
Neither party raised the issue of collateral estoppel to the district court. And the
district court did not determine that Sullivan’s claim is barred by collateral estoppel. The
district court concluded that Sullivan’s action was an impermissible collateral attack on
the probate proceedings, based on Stumer v. Hibbing Gen. Hosp ., 65 N.W.2d 609 (Minn.

5
1954). Because we do not consider matters not argued to and c onsidered by the district
court, Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1988) , Sullivan’s collateral-estoppel
argument is forfeited.
Sullivan contends that whether this argument “is characterized as collateral estoppel
or impermissible collateral attack is unimportant.” But these are two distinct doctrines. A
collateral attack is an “attack on a judgment entered in a different proceeding.” Bode v.
Minn. Dept. of Nat. Resources , 612 N.W.2d 862, 866 (Minn. 2000) (citing Black’s Law
Dictionary 472 (7th ed. 1999). Collateral estoppel prohibits a party from relitigating issues
that have already been adjudicated. Barth v. Stenwick, 761 N.W.2d 502, 507 (Minn. App.
2009).
The only argument Sullivan advances that this is not an impermissible collateral
attack is that it “is a tort action against an attorney who was not a party to the probate
proceeding involving issues never raised in those probate proceedings.” An assignment of
error based on “mere assertion” and unsupported by argument or authority is not properly
before this court. Schoepke v. Alexander Smith & Sons Carpet Co., 187 N.W.2d 133, 135
(Minn. 1971). Sullivan’s collateral-attack argument is also forfeited.
Finally, even on the merits, Sullivan’s argument fails . If a probate court has
jurisdiction over a matter, its rulings are not subject to c ollateral attacks. Bengtson v.
Setterberg, 35 N.W.2d 623, 629 (Minn. 1949). This rule applies to probate court orders
involving conservatorships and guardianships. Greer v. Prof’l Fid. Inc., 792 N.W.2d 120,
127 (Minn. App. 2011). In Stumer, the plaintiff brought an action against the attorneys
involved in his probate proceedings alleging fraud and seeking to recover attorney fees. 65

6
N.W.2d at 610 -11. The supreme court held that the malpractice action was an
impermissible c ollateral attac k on the probate action because the plaintiff completely
ignored the judgment and decree of the probate court and sought recovery of specific sums
of money allowed to the defendants by the probate decree. Id. at 612.
Here, Sullivan seeks damages based on the purchase of the marital home in joint
tenancy, rather than by the trust, an action approved by the probate court. He also claims
damages from the accounting Ms. Beeman provided as trustee, which the probate court
also approved. As in Stumer, Sullivan is impermissibly seeking recovery of funds based
on actions that were specifically approved by the probate court. The district court
appropriately granted summary judgment on Sullivan’s legal-malpractice claim.
II. Summary judgment is appropriate because B oggio did not have an attorney -
client relationship with Mr. Beeman.

Sullivan argues that Boggio owed a duty of care to Mr. Beeman because
Mr. Beeman was an intended beneficiary of his services. He also contends that it was
foreseeable that Boggio’s negligence could harm Mr. Beeman. We disagree.
In order to establish a claim for legal malpractice, a plaintiff must demonstrate (1) an
attorney-client relationship; (2) acts constituting negligence or breach of contract; (3) that
those acts proximately caused his damages; and (4) that, but for the attorney’s conduct, the
plaintiff would have been successful in his action. Frederick v. Wallerich , 907 N.W.2d
167, 173 (Minn. 2018). An attorney is only liable for malpractice to a person with whom
the attorney shares an attorney-client relationship. Marker v. Greenberg, 313 N.W.2d 4, 5
(Minn. 1981).

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One exception is that a third party may bring a le gal-malpractice action against an
attorney when the third party is a direct and intended beneficiary of the lawyer’s services.
Id. A third-party may bring a legal-malpractice action when the client’s sole purpose is to
benefit the third party directly and the attorney’s negligence caused the beneficiary to suffer
a loss. Admiral Merch. Motor Freight, Inc. v. O’Connor & Hannan, 494 N.W.2d 261, 266
(Minn. 1992). The requirement that the transaction must directly benefit the third party
“serves to prevent nonclients who receive incidental benefits from the representation” from
bringing malpractice claims. McIntosh Cty. Bank v. Dorsey & Whitney, LLP, 745 N.W.2d
538, 547 (Minn. 2008). Further, the attorney must be aware that the client’s intent is to
benefit the third party. Id. at 548. This exception is “very limited,” and, especially in
probate proceedings, “this stringent restriction is a necessity to prevent a myriad of causes
of action.” Marker, 313 N.W.2d at 5 . Beneficiaries of a trust cannot sue t he trustee’s
attorney because they are only “incidental beneficiaries” of the attorney’s services.
Goldberger v. Kaplan, Strangis and Kaplan, P.A., 534 N.W.2d 734, 739 (Minn. App. 1994)
(citation omitted), review denied (Minn. Sept. 28, 1995).
We note that Sullivan fails to analyze how Mr. Beeman meets the third -party-
beneficiary exception under the relevant caselaw above. Accordingly, this argument is
forfeited. Schoepke, 187 N.W.2d at 135. Nonetheless, his argument fails on the merits.
The d istrict court granted summary judgment on this issue because no evidence
indicated that Mr. Beeman was a direct and intended beneficiary of Boggio’s attorney -
client relationship with Ms. Beeman. In the guardianship and conservatorship proceedings,
a court-appointed attorney, Michael Lien , represented Mr. Beeman , and Jennifer Carey

8
represented Ms. Beeman. When the probate court approved the settlement on December
7, 2010, Lien continued to represent Mr. Beeman. Boggio filed a certificate of
representation on December 10, 2010, identifying himself as co -counsel with Carey for
Ms. Beeman. Boggio asserts that Ms. Beeman retained him for the sole purpose of
representing her as trustee of the special-needs trust, which Mr. Beeman does not dispute.
Even viewing the facts in the light most favorable to Sullivan, we conclude there is
no issue of fact as to whether Mr. Beeman was a direct and intended beneficiary of Boggio
and Ms. Beeman’s attorney-client relationship. Ms. Beeman retained Boggio to represent
her interests as trustee of the special -needs trust. The record does not indicate that Ms.
Beeman retained Boggio solely to benefit Mr. Beeman. While Mr. Beeman may have
received incidental benefits from Boggio’s representation of Ms. Beeman, this is
insufficient to meet the third-party-beneficiary exception. See Goldberger, 534 N.W.2d at
739.1
Because either of the above issues is dispositive of the entire appeal, we decline to
address Boggio’s argument on cross-appeal.
Affirmed.

1 The second part of the third -party-beneficiary analysis is to consider the Lucas factors,
which includes considering the foreseeability of harm to Mr. Beeman, among other factors.
Marker, 313 N.W.2d at 5. But because Mr. Beeman is not a direct and intended
beneficiary, we need not consider these factors. See McIntosh , 745 N.W.2d at 549
(declining to apply Lucas factors when respondents failed to show that they were direct
and intended beneficiaries).