James A. Compart, et al., Appellants,

This opinion will be unpublished and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
A19-1376

James A. Compart, et al.,
Appellants,

vs.

Michael K. Riley, Sr., et al.,
Respondents.

Filed April 6, 2020
Affirmed
Connolly, Judge

Nicollet County District Court
File No. 52-CV-18-501

Matthew C. Berger, Christopher E. Bowler, Gislason & Hunter LLP, New Ulm, Minnesota
(for appellants)

Joseph A. Gangi, Farrish Johnson Law Office, Mankato, Minnesota (for respondent)

Considered and decided by Hooten, Presiding Judge; Connolly, Judge; and Reilly,
Judge.

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U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellants challenge the dismissal of their legal malpractice claims. Because the
district court correctly concluded that the statute of limitations bar red these claims, we
affirm.
FACTS
The facts underlying this case involve appellants James and Diana Compart’s
purchase of real property in Sherburne County, Minnesota. This property is divided into
four parcels: A, B, C, and D.1 In 1992, Philip and Donna Larson (the Larsons) contracted
with Berlinson Associates (Berlinson), the title ow ners of Parcels A, B, C, and D , and
acquired an interest in those parcels. Five years later, appellants executed a purchase
agreement with the Larsons for P arcels A and B. By their agreement, the Larsons and
appellants also intended that appellants would take title to Parcel D, subject to an easement
for the Larsons to access Parcel C. As part of the closing, the Larsons executed a quitclaim
deed intending to convey their right, title, and interest in Parcels A, B, and D to appellants.
Similarly, Berlinson intended to convey its right, title, and interest in Parcels A, B, and D
to appellants through the delivery of a warranty deed.
Both deeds were recorded at the county recorder’s office. But each deed contained
similar scrivener errors: neither described Parcel D and neither conveyed any interest in

1 Our opinion in the related case involving this land contains a diagram and additional facts
about the property. See Compart v. Wolfstellar , 906 N.W.2d 598, 600 -02 (Minn. App.
2018), review denied (Minn. Apr. 17, 2018).

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that parcel to appellants. Instead, these deeds conveyed only Parcels A and B to appellants,
while allowing Berlinson to retain fee title in Parcel D subject to any equitable interest of
the Larsons. Despite these errors, appellants farmed Parcel D without interference from
the Larsons or Berlinson.
In August 2000, Berlinson conveyed a warranty deed to the Larsons for Parcels C
and D. Again, appellants allege that this conveyance viola ted the intent of their purchase
agreement with the Larsons. To correct these title errors, appellants retained respondents
Michael Riley and his law firm, Riley-Tanis & Associates, PLLC, in February 2001.2
The Larsons executed a mortgage in 2008 that encumbered Parcels C and D. In
March 2012, Riley prepared a quitclaim deed by which the Larsons conveyed Parcel D to
appellants. This 2012 quitclaim deed said it sought “to correct an error in the legal
description set forth in” the August 2000 warranty deed. Also in 2012, Riley prepared a
road easement agreement, which purported to grant the Larsons an easement ove r Parcel
D to access Parcel C.
The Larsons’ 2008 mortgage was foreclosed in May 2012. Parcels C and D were
then sold at a sheriff’s sale on July 26, 2012 . The next day, the Sheriff’s Certificate and
Foreclosure Record were filed in the county recorder’s office. This foreclosure terminated
appellants’ ownership of Parcel D granted under the 2012 quitclaim deed. Appellants knew
nothing about the mortgage or foreclosure sale.

2 We refer to respondents collectively as “Riley.”

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New owners purchased Parcels C and D from Wells Fargo Bank in 2013. Starting
in the spring of 2014, these new owners prevented appellants from farming Parcel D. Riley
then f iled a quiet title action against t he new owners on appellants’ behalf in 2016.
Compart, 906 N.W.2d at 601. After the district court in that case granted summary
judgment against them, appellants retained new counsel and appealed that decision.
This court reversed the grant of summary judgment and remanded appellants’ suit
against the owners. Id. at 611. On July 24, 2018, appellants sued Riley for legal
malpractice. Riley did not answer, but moved to dismiss under Minn. R. Civ. P. 12.02(e)
for failure to state a claim upon which relief can be granted.
The district court granted Riley’s motion to dismiss, offering two alternative
grounds for dismissal. It first reasoned that appellants’ claims were untimely because they
suffered “some damage” in 2008 when the Larsons obtained their mortgage and in March
2012 when foreclosure occurred. The district court also found dismissal appropriate for
claims not discussed in appellants’ affidavit of expert disclosure. This appeal follows.
D E C I S I O N
To begin, we observe that the parties dispute the applicable legal standard.
Appellants assert that the rule 12 standard governs, while Riley contends that the rule 56
summary-judgment standard governs. We apply the rule 12 standard because Riley moved
to dismiss for failure to state a claim and because we do not reach the expert-affidavit issue.
We review de novo whether a complaint states a claim sufficient to survive a motion
to dismiss. Hansen v. U.S. Bank, N.A., 934 N.W.2d 319, 325 (Minn. 2019). In doing so,
we accept the facts alleged in the complaint as true and construe all reasonable inferences

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in the nonmoving party’s favor. Park Nicollet Clinic v. Ham ann, 808 N.W.2d 828, 831
(Minn. 2011). Whether the district court erred in applying the law surrounding the accrual
date and the running of the statute of limitations presents a legal question that we review
de novo. Antone v. Mirviss, 720 N.W.2d 331, 334 (Minn. 2006).
Legal malpractice claims have a six -year statute of limitations. Minn. Stat.
§ 541.05, subd. 1(5) (2018).3 An assertion that the statute of limitations bars a claim is an
affirmative defense, and the asserting party must establish each of the elements. MacRae
v. Grp. Health Plan, Inc. , 753 N.W.2d 711, 716 ( Minn. 2008). This limitations period
begins to run when a legal malpractice claim accrues. Antone, 720 N.W.2d at 335. A claim
accrues when a plaintiff can allege sufficient facts to survive a motion to dismiss under
Minn. R. Civ. P. 12.02(e). Id. So accrual occurs when operative facts supporting each
element exist. Sec. Bank & Tr. Co. v. Larkin, Hoffman, Daly & Lindgren, Ltd., 916 N.W.2d
491, 496 (Minn. 2018).
“To state a claim for legal malpractice, a plaintiff must allege (1) the existence of
an attorney -client rela tionship; (2) acts constituting negligence or breach of contract;
(3) that such acts were the proximate cause of the plaintiff’s damages; and (4) that but for
the attorney -defendant’s conduct the plaintiff would have been successful in the
prosecution or defense of the action.” Frederick v. Wallerich, 907 N.W.2d 167, 173 (Minn.

3 We note that appellants alleged separate claims against Riley for breach of contract,
breach of fiduciary duty, negligent misrepresentation, intentional misrepresentation, and
breach of the covenant of good faith and fair dealing. The same accrual analysis applies to
all claims because they depend on when appellants suffered some damage as a result of
Riley’s alleged malpractice. See Antone, 720 N.W.2d at 338 (dismissing the plai ntiff’s
claims under the same accrual analysis).

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2018). In a transactional matter —such as this case —the fourth element of a legal
malpractice claim requires the plaintiff to show that , but for the attorney’s conduct, the
plaintiff would have obtained a more favorable result. Jerry’s Enters., Inc. v. Larkin,
Hoffman, Daly & Lindgren, Ltd., 711 N.W.2d 811, 819 (Minn. 2006).
Here, the parties dispute when damages accrued. Minnesota follows the “some
damage” rule of accrual. Sec. Bank & Tr. Co., 916 N.W.2d at 498. This rule requires that
some damage result from the alleged malpractice, but does not require a prospective
plaintiff to be aware of all operative facts that could create a cause of action. Id. (citing
Antone, 720 N.W.2d at 335-36). The occurrence of any compensable damage, even if not
identified in the complaint, creates some damage. Hansen, 934 N.W.2d at 327. Either
financial liability or the loss of a legal right can create some damage. Sec. Bank & Tr. Co.,
916 N.W.2d at 499.
Applying these principles here leads us to the conclusion that appellants suffered
some damage in 2008 when the Larsons executed the mortgage encumbering Parcel D. At
that point, a cloud existed on Parcel D’s title, which represents some damage to appellants.
See May v. First Nat’l Bank of Grand Forks , 427 N.W.2d 285, 289 (Minn. App. 1988)
(observing in a legal malpractice case that “[a] cloud on a title to real estate is damage
[because] [t]ime, money[,] and energy have to be expended, either to pay it off or to prove
that it should not exist, and have it formally removed” ), review denied (Minn. Oct. 26,
1988). But for Riley’s negligence between 2001 and 2005, the Larsons could not have
encumbered Parcel D in 2008. Thus, appellants could have brought a legal malpractice
claim in 2008 sufficient to withstand a motion to dismiss. See Antone, 720 N.W.2d at 335.

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Appellants argue that the 2008 mortgage cannot constitute some damage because
foreclosure remained speculative. They instead identify the recording of the sheriff’s sale
certificate on July 27, 2012, as representing some damage because they knew nothing about
the 2008 mortgage before that date. But this position contradicts the well-established rule
that “the running of the statute does not depend on the ability to ascertain the exact amount
of damages . . . [and] the statute is not tolled by ignorance of the cause of action.”
Herrmann v. McMenomy & Severson, 590 N.W.2d 641, 643 (Minn. 1999).
Even if we find that appellants suffered some damage in 2008, they still urge us to
reverse the district court . They highlight Riley’s actions in 2012 as constituting
independent acts of malpractice and argue that Riley committed di stinct acts of legal
malpractice while representing them. 4 First, their complaint asserted that Riley acted
negligently from 2001 to 2005. Essentially, appellants fault Riley for not resolving the title
defects during this period and for not notifying them about the Larsons’ mortgage. Second,
appellants’ complaint alleged that Riley negligently drafted two documents in March
2012—the quitclaim deed and the road easement agreement. Again, the drafting of these
documents aimed to resolve title defects.
The supreme court recently addressed independent acts in Frederick, where an
attorney prepared an antenuptial agreement for a client. 907 N.W.2d at 170. But the

4 Appellants also contend that Riley committed malpractice in 2016, but any argument on
Riley’s 2016 actions appears only in appellants’ reply brief. An appellate court may
decline to consider issues raised for the first time in a reply brief. Moorhead Econ. Dev.
Auth. v. Anda, 789 N.W.2d 860, 887 (Minn. 2010). Thus, we consider only Riley’s 2012
actions.

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attorney did not ensure proper execution of that agreement because it lacked any attesting
witness signatures. Id. at 170-71. One year later, the attorney prepared a new will for the
same client. Id. at 171. This new will reflected the client’s intention to use the prior
antenuptial agreement and impliedly relied on its purported validity. Id. When the client’s
wife later filed for divorce, she successfully argued that the antenuptial agreement lacked
enforceability. Id. The client then sued his attorney, alleging independent acts of
malpractice. Id. at 172.
On appeal, the supreme court identified five factors to be applied as a “fact-specific
approach to determine when multiple acts are sufficiently distinct to give rise to separate
legal-malpractice claims . . . .” Id. at 177. Applied here, these factors require us to consider
whether: (1) appellants’ position was significantly worsened by Riley’s later malpractice;
(2) the two acts represent the same “type” of negligent conduct; (3) the acts of negligence
occurred at different times and during different transactions; (4) the two acts flowed from
the same underlying negligence; and (5) the later act relied on the continued validity of
Riley’s prior work. See id. at 175-76.
Under Frederick, we first observe that appellants have alleged that they suffered
adverse consequences from Riley’s 2012 acts. But appellants’ complaint does not reveal
how their position “significantly worsened” due to Riley’s 2012 acts. The 2008 mortgage
remained o n Parcel D even after Riley prepared the two documents in March 2012.
Second, Riley’s negligent conduct appears to be the same “type” in 2012 as it was between
2001 and 2005. Both instances involved his failure to cure the title defects that did not
grant Parcel D to appellants.

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Third, the acts of negligence happened at different times. But they did involve
similar transactions. At both times, Riley sought to prepare legal documents clearing the
title defects and establishing appellants’ ownership of Parcel D. Fourth, the two acts flow
from the same negligence—Riley’s failure to secure ownership of Parcel D for appellants.
Fifth, Riley’s 2012 acts did not rely on the validity of his prior work. In fact, app ellants
assert that he initially did little to correct the title defects, requiring these later acts.
Because we hold that application of the Frederick factors weigh s against the
conclusion that Riley’s 2012 acts constitute independent acts of negligence sufficient to
create a separate malpractice claim , we affirm the district court’s ruling on this issue.
Based on this analysis, we need not address the alternative basis on which the district court
dismissed the case.
Affirmed.