Jay A. Soeffker, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0557

Jay A. Soeffker,
Appellant,

vs.

McGrann Shea Carnival Straughn and Lamb, Chartered, et al.,
Respondents.

Filed December 27, 2021
Affirmed
Bryan, Judge

McLeod County District Court
File No. 43-CV-20-214

Jay A. Soeffker, Glencoe, Minnesota (pro se appellant)

Michael A. Klutho, Maria P. Brekke, Bassford Remele, Minneapolis, Minnesota; and

Kathleen M. Brennan, McGrann Shea Carnival Straughn & Lamb, Chartered, Minneapolis,
Minnesota (for respondents)

Considered and decided by Frisch, Presiding Judge; Bryan, Judge; and Klaphake,
Judge.
*

* Retired judge of the Minnesota Court of Ap peals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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NONPRECEDENTIAL OPINION
BRYAN, Judge
Appellant challenges the district court’ s decision to dismiss the complaint.
Appellant also challenges the entry of defa ult judgment against him on respondents’
counterclaim. Because appellant did not co mply with the requirements of Minnesota
Statutes section 544.42 (2020) or respond to respondents’ counterclaim, we affirm.
FACTS
In 2007, appellant Jay A. Soeffker hired an attorney, K.L., to handle his marital
dissolution proceedings. After becoming dissatisfied with K.L.’s representation in January
2008, Soeffker retained an attorney from respondent McGrann Shea Carnival Straughn and
Lamb, Chartered, et al (the firm) to represen t him instead of K.L. in the dissolution case
and to handle Soeffker’s claim of breach of fiduciary duty against K.L. The firm
represented Soeffker from 2007 to 2012 in various procee dings, including through two
appeals in the dissolution case and a successful collection of judgment.
On February 21, 2019, Soeffker served, but did not file,1 an action against the firm,
alleging that the firm breached its fiduciary duty. According to the complaint, in December
2012, Soeffker met with his a ttorney and discussed “billing e rrors and mistakes and lack
of communication,” as well as Soeffker’s concerns that the firm commenced work “without
proper knowledge and consent.” Soeffker further alleged that his attorney at the firm
breached his fiduciary duty “by taking the position that [Soeffker] should be responsible to

1 Soeffker filed his complaint with the district court on February 14, 2020.
3
pay fees in a letter from [the firm] to [K.L.]” Soeffker also alleged that the firm breached
its fiduciary duty by filing a UCC financing statement against Soeffker for unpaid fees and
for charging him for those filings. Soeffker also alleged that these actions violated the
retainer agreement.
The firm answered Soeffker’s complaint and served a counterclaim against him for
breach of contract. 2 The firm alleged that it provided legal services to Soeffker for an
appeal in 2009, a post-appeal matter in 2011, and a collection matter in 2011. In support
of the counterclaim, the firm alleged that Soeffker failed to pay the amount owed for those
services. The firm also moved to dismiss Soeffker’s complaint because Soeffker failed to
submit the affidavits required by Minnesota Statutes section 544.42. In his response to the
firm’s motion to dismiss the complaint, file d on March 11, 2020, Soeffker made several
requests, including a request that the district court dismiss the firm’s counterclaim. It is
undisputed that Soeffker made no response to the firm’s counterclaim from the date of
service in April 2019 through March 11, 2 020. Soeffker’s memorandum of law
accompanying the March 11, 2020 pl eading only addressed Soeffker’s theory of total fee
forfeiture as a result of the firm’s alleged breac h of its fiduciary duty to him. It did not
advance an argument regarding Soeffker’s request to dismiss the firm’s counterclaim.
In June 2020, the district court held a hearing on the firm’s motion to dismiss. After
hearing arguments from both parties, the distri ct court dismissed Soeffker’s claim with

2 The firm obtained Soeffker’s agreement, in writing, to extend the time to serve its answer
and counterclaim until April 5, 2019. On that date, the firm timely served its answer and
counterclaim, but did not formally file the answer and counterclaim until February 18,
2020.
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prejudice for failing to comply with section 544.42. Soeffker appealed to this court.
Because the district court had not addressed the firm’s counterclaim against Soeffker, this
court determined that the appeal was prematur e. Upon dismissal of the appeal, the firm
moved the district court for de fault judgment against Soeffk er on its counterclaim. The
district court concluded that Soeffker neve r addressed the counterclaim in any of his
pleadings and never addressed the merits of the firm’s motion for default judgment in his
response briefs. The district court granted the firm’s request for default judgment.
Soeffker appeals.
DECISION
I. Decision to Grant Respondents’ Motion to Dismiss
Soeffker asserts that the district court erred by granting respondents’ motion to
dismiss the complaint, arguing that the affi davit requirements of section 544.42 do not
apply to breach-of-fiduciary-duty claims. We disagree.
Under Minnesota Statutes section 544.42, legal malp ractice claims must be
accompanied by two supporting affidavits. The plaintiff must submit one expert affidavit
opining that “the defendant deviated from the applicable standard of care and by that action
caused injury to the plaintiff.” Minn. Stat. § 544.42, subd. 3(a)(1). The plaintiff must also
serve an affidavit disclosing “the identity of each . . . expert witness . . . , the substance of
the facts and opinions to which the expert is expected to testify, and a summary of the
grounds for each opinion.” Id., subd. 4(a). The requirements of section 544.42 are strictly
enforced, see Middle River-Snake River Watershed Dist. v. Dennis Drewes, Inc. , 692
5
N.W.2d 87, 91 (Minn. App. 2005), and failure to comply compels di smissal, Minn. Stat.
§ 544.42, subd. 6(a), (c).
There is an exception to these requireme nts that applies when “the conduct
complained of can be evaluated adequately by a jury in the absence of expert testimony.”
Fontaine v. Steen, 759 N.W.2d 672, 677 (Minn. App. 2009) (quoting Hill v. Okay Contr.
Co., 252 N.W.2d 107, 116 (Minn. 1977)). Su ch cases are rare and exceptional. See
Sorenson v. St. Paul Ramsey Med. Ctr. , 457 N.W.2d 188, 192 (Minn. 1990). Whether
expert testimony is required depe nds on the nature of the ques tions that the trier of fact
must decide and on whether specialized or technical knowledge will assist in that decision.
Fontaine, 759 N.W.2d at 677. We review this legal question de novo. Guzick v. Kimball,
869 N.W.2d 42, 46-47 (Minn. 2015). Howeve r, this court reviews a district court’s
ultimate decision to dismiss a complaint based on section 544.42 for an abuse of discretion.
Id. at 46.
In this case, Soeffker argue s that the requirements of section 544.42 do not apply
for the following two reasons: (1) the requirements of section 544.42 only relate to claims
alleging legal malpractice, not claims allegi ng a breach of fiduciary duty; and (2) the
affidavit requirements of section 544.42 do not apply because the conduct alleged is within
the common knowledge of most jurors. We are not convinced by either argument. First,
Soeffker’s initial argument is contrary to a recent holding from this court. Mittlestaedt v.
Henney, 954 N.W.2d 852, 862 (Minn. App. 2021) (concluding that section 544.42 applies
6
to claims alleging a breach of fi duciary duty against one’s attorney), rev. granted in part
(Minn. Mar. 30, 2021).3
Second, we conclude that expert affidav its are necessary given the nature of the
allegations in the complaint. An attorney owes a fiduciary duty “to represent the client
with undivided loyalty, to preserve the client ’s confidences, and to disclose any material
matters bearing upon the represen tation of these obligations.” Rice v. Perl, 320 N.W.2d
407, 410 (Minn. 1982) (emphasis omitted) (q uotation omitted). A cl aim for breach of
fiduciary duty is closely related to a clai m of professional negligence, and requires a
plaintiff to demonstrate a fiduciary duty, breach of that duty, causation, and damages. See
Padco v. Kinney & Lange, et. al., 444 N.W.2d 889, 891 (Minn. App. 1989) (holding that a
complaint alleging the elements of a legal malpractice claim sufficiently alleged the
elements of a breach of fiduciary duty claim), rev. denied (Minn. Nov. 15, 1989).
Soeffker asserts that the firm breached its fiduciary duty when his atto rney at the
firm took the position that Soeffker would not request reimbursement from K.L. for
additional fees incurred and would forgo a clai m for treble damages if K.L. reached an
agreement with the firm . Soeffker also asserts that th e firm breached its fiduciary duty
when his attorney at the firm filed a UCC financing statement against Soeffker. 4 Both

3 The Minnesota Supreme Court granted review in Mittlestaedt, but this court’s decision
binds our analysis unless and until reversed by the Minnesota Supreme Court. See State v.
Chauvin, 955 N.W.2d 684, 689 (Minn. App. 2021), rev. denied (Minn. Mar. 10, 2021).
4 Soeffker also argues that this conduct constitutes a breach of the retainer agreement. The
relevant portion of the retainer agreemen t reads, “We will not make any settlements
without your consent, nor will any proceedings be filed in co urt without your approval.”
Soeffker contends that breachin g the retainer agreement is a breach of fiduciary duty.
Because this argument derives from the others, we need not address it separately.
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allegations require expert testimony. Whethe r the letter to K.L. fell below the expected
standard of care depends on an understanding of the ci rcumstances su rrounding the
potential claims against K.L., as well as an understanding of the implications of any
statements that were made by or to Soeffker regarding the language in the letter. Similarly,
because the need for UCC financing statemen ts and their significance are outside the
common knowledge of the jury, this allegation would require expert testimony to explain
the standard of care, the disputed amounts in the lien, and whether the firm’s conduct fell
within the standard of care. Therefore, the requirements of section 544.42 apply, and
because Soeffker did not submit the necessary affidavits, the district court did not abuse its
discretion by granting the motion to dismiss the complaint.
II. Decision to Grant Respondents’ Motion for Default Judgment
Soeffker contends that the district c ourt erred by granting the firm’s motion for
default judgment on its counte rclaim. Given Soeffker’s inac tion after being served with
the counterclaim, however, we discern no abuse of discretion by the district court.
Default judgment is appropriate when a pa rty has failed to timely answer a claim.
See Minn. R. Civ. P. 55.01 (providing that “[w]hen a party against whom a judgment for
affirmative relief is sought has failed to plead or otherwise defend within the time allowed
therefor by these rules or by statute, and that fact is made to appear by affidavit, judgment
by default shall be entered against that party.”). We review the entry of default judgment
for an abuse of discretion. Laymon v. Minn. Premier Props., LLC, 903 N.W.2d 6, 17
(Minn. App. 2017), aff’d, 913 N.W.2d 449 (Minn. 2018).
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The firm timely served Soeffker with its answer and counterclaim on April 5, 2019.
After being served with the counterclaim, Soeffker failed to respond until March 11, 2020.
At that time, Soeffker responded to the firm’s motion to dismiss the complaint. Although
Soeffker requested that the district court di smiss the counterclaim in his March 11, 2020
response to the firm’s motion to dismiss the complaint, he did not advance any argument
to support the request at that time, or at a ny time prior to this court’s decision to dismiss
the initial appeal. 5 Because Soeffker did not timely an swer the firm’s counterclaim, the
district court did not abuse its discretion wh en it granted the firm’s motion for default
judgment.
Affirmed.

5 Soeffker asserts that the firm should no t be permitted to make a motion for default
judgment after this court dismissed the initial appeal. He does not provide any authority
for this argument, and we declin e to reach the issue in the ab sence of adequate briefing.
State Dep’t of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn.
1997) (declining to address issue not adequately briefed); Waters v. Fiebelkorn, 13 N.W.2d
461, 464-65 (Minn. 1944) (“[O]n appeal erro r is never presumed. It must be made to
appear affirmatively before there can be reversal. . . . [T]he burden of showing error rests
upon the one who relies upon it.”).