Wayne E. Hukriede, et al., Appellants,

This opinion is nonprecedential except as provided by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
A22-1716

Wayne E. Hukriede, et al.,
Appellants,

vs.

Melanie A. Engh-Liska, aka Melanie A. Liska, et al.,
Respondents.

Filed June 12, 2023
Affirmed in part, reversed in part, and remanded
Larkin, Judge

Hennepin County District Court
File No. 27-CV-22-2956

Paul A. Sortland, Sortland Law Office, PLLC, Minneapolis, Minnesota (for appellants)

Kay Nord Hunt, Michelle K. Kuhl, Lauren E. Nuffort, Sara N. Wilson, Lommen Abdo,
P.A., Minneapolis, Minnesota (for respondents)

Considered and decided by Larkin, Presiding Judge; Reilly, Judge; and Slieter,
Judge.
NONPRECEDENTIAL OPINION
LARKIN, Judge
Parents, their son, and their son’s spouse (collectively appellants) challenge the
district court’s summary-judgment dismissal of their legal -malpractice claims against
respondent-attorney, which are based on appellants’ assertion that the attorney provided
negligent estate-planning advice. Appellants also challenge the district court’s denial of
2
their motion to extend the deadline for rebuttal disclosures. We affirm the district court’s
grant of summary judgment against parents. But we reverse the grant of summary
judgment against son and his spouse and remand for further proceedings. Finally, we
affirm the denial of appellants’ motion to extend the rebuttal disclosure deadline, but the
district court has discretion to reconsider its decision on remand.
FACTS
Appellants Helen Hukriede, Wayne Hukriede, Steven Hukriede, and John Tripp
brought legal malpractice claims against respondents Melanie Liska and Tarrant & Liska
PLLC (together, Liska). Their claims arose out of estate-planning services Liska provided
to Steven and John.
Helen and Wayne are married. Steven is their son. John is Steven’s spouse. In July
1988, Helen and Wayne conveyed their real property located on University Avenue NE, in
Minneapolis to Steven, reserving a life estate for themselves (the 1988 life estate). The
three Hukriedes lived together in the property until 2009, when Helen and Wayne moved
out and John moved in.
In 2019, Steven and John retained Liska for estate-planning advice. Liska prepared
two quitclaim deeds. The first deed extinguished the 1988 life estate. The second deed
granted John an interest in the property as a joint tenant. Steven gave Helen and Wayne
the deed extinguishing the 1988 life estate, and they signed it without obtaining legal advice
or legal representation.
In 2021, Helen was diagnosed with dementia and moved to a nursing home. She
applied for and was approved for medical assistance. Also in 2021, Steven and John
3
retained the services of a different attorney and executed a warranty deed conveying a life
estate in the property back to Helen and Wayne. Liska was not involved in that transaction.
In January 2022, appellants sued Liska for legal malpractice, asserting theories of
professional negligence and breach of fiduciary duty. The parties stipulated to, and the
court adopted, a scheduling order providing that appellants’ expert disclosures were due
by July 1, 2022, Liska’s expert disclosures were due by August 12, 2022, and rebuttal
disclosures were due by September 12, 2022. Liska moved for summary judgment in July
2022. On September 12, 2022, appellants moved to amend the scheduling order and to
extend the deadline for rebuttal expert disclosures. On September 21, before the district
court ruled on appellants’ motion to extend the disclosure deadline, appellants served the
expert reports of an attorney and an appraiser. The district court denied appellants’ request
to extend the deadline, granted Liska’s motion for summary judgment, and dismissed
appellants’ claims against Liska.
This appeal follows.
DECISION
I.
Summary judgment is appropriate when the moving party shows that “there is no
genuine issue as to any material fact and the movant is entitled to judgment as a matter of
law.” Minn. R. Civ. P. 56.01. “A defendant is entitled to summary judgment as a matter
of law when the record reflects a complete lack of proof on an essential element of the
plaintiff’s claim.” Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995). “Summary
judgment is inappropriate when reasonable persons might draw different conclusions from
4
the evidence presented.” Henson v. Uptown Drink, LLC, 922 N.W.2d 185, 190 (Minn.
2019) (quotation omitted).
This court reviews the district court’s grant of summary judgment de novo.
Montemayor v. Sebright Prods., Inc., 898 N.W.2d 623, 628 (Minn. 2017). “We view the
evidence in the light most favorable to the party against whom summary judgment was
granted.” STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn.
2002).
Summary Judgment Against Helen and Wayne
“[A]n attorney is liable for professional negligence only to a person with whom the
attorney has an attorney-client relationship.” Marker v. Greenberg, 313 N.W.2d 4, 5
(Minn. 1981); see Minn. R. Prof. Conduct 1.1 (“A lawyer shall provide competent
representation to a client.”). Similarly, a claim for breach of fiduciary duty requires the
existence of a fiduciary relationship, like that between attorney and client. Swenson v.
Bender, 764 N.W.2d 596, 601 (Minn. App. 2009), rev. denied (Minn. July 22, 2009); see
also STAR Ctrs., 644 N.W.2d at 77 (“An attorney-client relationship gives rise to fiduciary
duties . . . .”). An attorney-client relationship can be established under a contract or tort
theory.
1 See Admiral Merchants Motor Freight, Inc. v. O’Connor & Hannan, 494 N.W.2d
261, 265 (Minn. 1992) . An attorney may also be liable to a third party in limited cases
under a third-party-beneficiary theory. Marker, 313 N.W.2d at 5.

1 In their reply brief, appellants assert that Liska is liable under an “implicit contract
theory,” but they do not cite law or provide legal argument to support that assertion. This
court generally will not address issues unsupported by legal analysis or citation. Ganguli
v. Univ. of Minn., 512 N.W.2d 918, 919 n.1 (Minn. App. 1994). We decline to so here.
5
After being retained by Steven and John, Liska prepared a quitclaim deed that
extinguished the 1988 life estate. Steven gave Helen and Wayne the deed that Liska had
prepared, and they signed it without seeking legal advice or legal representation. It is
undisputed that Helen and Wayne never met or communicated with Liska. Wayne
admitted, in deposition testimony, that they did not seek legal advice from Liska.
In granting summary judgment, the district court reasoned that appellants failed to
raise a genuine issue of material fact regarding the existence of an attorney-client
relationship between Helen and Wayne and attorney Liska. Appellants argue that there
was an attorney-client relationship because it was reasonable for Helen and Wayne to rely
on Liska’s advice.
An attorney-client relationship arises under tort theory when a person seeks and
receives legal advice on which a reasonable person would rely. In re Disciplinary Action
against Severson, 860 N.W.2d 658, 666 (Minn. 2015). The focus is on the contact that
occurred between the plaintiff and the attorney. See Gramling v. Mem’l Blood Ctrs. of
Minn., 601 N.W.2d 457, 460 (Minn. App. 1999) (“Courts have focused on the contact that
occurred between the plaintiff and the attorney.”).
In Gramling, this court affirmed a grant of summary judgment, reasoning that
“[a]bsent a request for legal advice, we cannot conclude an attorney-client relationship
existed under the tort theory of representation.” Id. Like the circumstances in Gramling,
Wayne and Helen did not request legal advice from Liska. Indeed, they never
communicated with attorney Liska or anyone else at her firm. Because it is undisputed that
Helen and Wayne did not seek legal advice from Liska, there is no basis for a reasonable
6
person to conclude that an attorney-client relationship existed under the tort theory of
representation. See id.
Appellants also argue that Helen and Wayne were the “direct and intended
beneficiary” of Liska’s legal services. To pursue a claim for legal malpractice as a direct
and intended beneficiary of legal services, a non-client third party must establish “that it
was, in fact, a direct and intended beneficiary of the attorney’s services.” Sec. Bank & Tr.
Co. v. Larkin, Hoffman, Daly & Lindgren, Ltd., 916 N.W.2d 491, 500 (Minn. 2018)
(quotations omitted). If that threshold requirement is met, this court looks to the factors
set forth in Lucas v. Hamm, 364 P.2d 685, 687 (Cal. 1961), to determine the extent of the
duty owed. McIntosh Cnty. Bank v. Dorsey & Whitney, LLP, 745 N.W.2d 538, 547 (Minn.
2008).
2
“A party is a direct beneficiary of a transaction if the transaction has as a central
purpose an ef fect on the third party and the effect is intended as a purpose of the
transaction.” Id. at 547. “Requiring that the transaction directly benefit the third party
properly serves to prevent nonclients who receive incidental benefits from the
representation, or who only receive downstream benefits, from holding the attorney liable.”
Id. “[T]he attorney must be aware of the client’s intent to benefit the third party in order
for the exception to be applicable.” Id. at 548.

2 Those factors include “the extent to which the transaction was intended to affect the
plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered
injury, the closeness of the connection between the defendant’s conduct and the injury, and
the policy of preventing future harm.” Id. at 546.
7
It is undisputed that Steven and John retained Liska for their own estate-planning
advice. Liska prepared documents that eliminated Helen and Wayne’s interest in the
property, expanded Steven’s interest, and created an interest for John. Steven and John
clearly were the direct and intended beneficiaries of Liska’s services. No reasonable
person could conclude that the elimination of the 1988 life estate was intended to benefit
Helen and Wayne. Moreover, the evidence does not suggest that Liska was aware of any
purported intent to benefit Helen and Wayne. Because the threshold requirement to
recognize a non-client third-party- beneficiary claim is not met, we need not address the
Lucas factors. See Sec. Bank & Tr. Co., 916 N.W.2d at 501-02.
Finally, appellants assert that Liska breached an ethical duty, citing Minn. R. Prof.
Conduct 4.3(c), which provides that “when a lawyer knows or reasonably should know that
[an] unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall
make reasonable efforts to correct the misunderstanding.” But “an attorney’s violation of
the Rules of Professional Conduct does not give rise to a private cause of action against an
attorney.” In re Disciplinary Action against Montez, 812 N.W.2d 58, 66-67 (Minn. 2012).
Indeed, appellants do not provide any legal support for their assertion that a violation of
rule 4.3 would give rise to their malpractice claims in the absence of an attorney-client
relationship.
In sum, we affirm the grant of summary judgment against Helen and Wayne because
there is no genuine issue of material fact and the record reflects a complete lack of proof
of an essential element of Helen and Wayne’s claims, that is, the existence of an attorney-
client relationship between Helen and Wayne and attorney Liska.
8
Summary Judgment against Steven and John
Whether pursued under a professional-negligence or breach-of-fiduciary-duty
theory, legal-malpractice claims require proof of nonspeculative damages caused by an
attorney’s breach of duty. See Mittelstaedt v. Henney, 969 N.W.2d 634, 640 (Minn. 2022)
(stating elements of breach-of-fiduciary-duty malpractice claim); Frederick v. Wallerich,
907 N.W.2d 167, 173 (Minn. 2018) (stating elements for negligence-based malpractice
claim); Leoni v. Bemis Co., 255 N.W.2d 824, 826 (Minn. 1977) (“[D]amages which are
speculative, remote, or conjectural are not recoverable.”). Steven and John’s theory of
causation and damages in this case is premised on the manner in which medical assistance
operates in Minnesota. We thus begin with a discussion of the relevant law.
Medical assistance, which is Minnesota’s Medicaid program, is governed by both
state and federal law. See Pfoser v. Harpstead, 953 N.W.2d 507, 514 (Minn. 2021). The
program “provides financial assistance to individuals who need long-term medical care,
such as nursing home care, but are without the necessary funds to acquire it by allowing
them to apply for and receive funds from the State (once they meet the statutory eligibility
requirements) to cover the costs of such care.” In re Schmalz, 945 N.W.2d 46, 51 (Minn.
2020). “Because Medicaid is intended to be the payor of last resort, persons must be
financially eligible for Medical Assistance by having available assets valued below a
statutory threshold amount.” Pfoser, 953 N.W.2d at 514 (citation omitted).
For purposes of determining eligibility, a person’s assets that were transferred for
less than fair market value within 60 months (prohibited transfers) before a request for
medical assistance is made will be considered. Minn. Stat. § 256B.0595, subd. 1(a) (2022).
9
But certain assets, including a homestead occupied by the spouse of an institutionalized
person, “are not counted when totaling assets to determine eligibility.” Schmalz, 945
N.W.2d at 51; see also Minn. Stat. § 256B.056, subd. 2(1) (2022). If a person’s available
assets exceed the statutory threshold, that person must “spend down” those assets —by
using them to pay for their own care— before qualifying for medical assistance. Schmalz,
945 N.W.2d at 5 1. And prohibited transfers will result in a period of ineligibility before
medical assistance may be obtained. Minn. Stat. § 256B.0595, subd. 2 (2022).
Because “[i]t is the policy of this state that individuals or couples, either or both of
whom participate in the medical assistance program, use their own assets to pay their share
of the cost of care during or after their enrollment in the program,” the medical-assistance
statutes provide that a claim “shall be filed” against the estate of the survivor of a married
couple, one or both of whom received medical assistance. Minn. Stat. § 256B.15, subds.
1(a), 1a (2022); see also Minn. Stat. § 514.981, subd. 1 (2022) (providing for medical-
assistance liens based on benefits paid). For purposes of such a claim, a person’s estate
includes “all of the person’s interests . . . in real property the person owned as a life tenant
. . . at the time of the person’s death.” Minn. Stat. § 256B.15, subd. 1a(b)(2) (2022).
More specifically, the medical assistance statutes provide for “the continuation of a
recipient’s life estate or joint tenancy interest in real property after the recipient’s death for
the purpose of recovering medical assistance.” Id., subds. 1(a)(3), 1h(b) (2022). This
provision “modifies common law principles holding that these interests terminate on the
death of the holder” and “[is] effective only for life estates and joint tenancy interests
established on or after August 1, 2003.” Id., subd. 1(a)(3), (d) (2022). Because a life estate
10
created before August 1, 2003, will not be included in the estate for purposes of a medical
assistance claim, such pre-August 1, 2003 life estates are referred to by appellants’ expert
as “golden” life estates.
Steven and John contend that Liska deprived them of the benefits of a golden life
estate by drafting documents in December 2019 that extinguished the 1988 life estate.
They argue that, had the 1988 life estate not been extinguished, they would have obtained
an unencumbered interest in the property after Helen’s and Wayne’s deaths. They further
argue that because of Liska’s actions, the property is now subject to a medical -assistance
lien, based on the nearly $10,000 per month in medical assistance that Helen is receiving.
In support of these contentions, Steven and John have offered an expert report from estate
planning attorney David W. Johnson. Consistent with Steven and John’s contentions,
Johnson averred that “but for the actions of Melanie Liska, Steven Hukriede would have
been able to receive the property without any diminishment because of any subrogation
interests due and owing for medical assistance provided to Helen Hukriede during her
lifetime.”
Liska contends, and the district court concluded, that summary judgment was
appropriate because Steven and John cannot prove nonspeculative damages caused by
Liska’s conduct. The district court acknowledged Steven and John’s contention that the
amounts Helen was receiving in medical assistance—accumulating at the rate of about
$10,000 per month—would be subject to a medical-assistance lien following her death, but
nevertheless determined that Steven and John’s damages were too speculative. The district
court also determined that Steven and John’s “claimed damages cannot be seen to have
11
been caused by” Liska because Steven chose to extinguish the 1988 life estate and because
“the 2021 Transaction giving a life estate over the Property may be an intervening and
superseding cause.”
As to the determination that Steven and John’s asserted damages are speculative,
the rule against speculative damages does not preclude a party from seeking future
damages:
In a civil action the plaintiff has the burden of proving
future damages to a reasonable certainty. This rule insures that
there is no recovery for damages which are remote,
speculative, or conjectural. However, it is not necessary that
the evidence be unequivocal or that it establish future damages
to an absolute certainty. Instead, the plaintiff must prove the
reasonable certainty of future damages by a fair preponderance
of the evidence. In short, the plaintiff is entitled to an
instruction on future damages if he or she has shown that such
damage is more likely to occur than not to occur.

Pietrzak v. Eggen, 295 N.W.2d 504, 507 (Minn. 1980).
3
Here, Steven and John have offered evidence that Helen is receiving nearly $10,000
per month in medical assistance, and their expert has opined that the property will be
subject to a lien in favor of Hennepin County following Helen’s death that it would not
have been subject to absent Liska’s conduct. Although the precise amount of the lien may

3 Notably, the supreme court has determined that a legal- malpractice claim accrues for
statute-of-limitations purposes when “some damage” occurs. Frederick, 907 N.W.2d at
178. In Antone v. Mirviss, the supreme court held that a client incurred some damage from
an attorney’s negligence in preparing an antenuptial agreement on the date of his marriage.
720 N.W.2d 331, 337 (Minn. 2006). The court explained that when the client married, “he
passed the point of no return” and was “entitled to make a claim upon a portion of any
appreciation in his premarital property.” Id. Similarly here, Steven and John incurred
some damage when the 1988 life estate was extinguished because they irretrievably lost
the benefits of a golden life estate.
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not be known until after Helen’s death, we conclude that Steven and John have presented
evidence sufficient to prove future damages to a reasonable certainty. See Pietrzak, 295
N.W.2d at 507; see also Leoni, 255 N.W.2d at 826 (“Once the fact of loss has been shown,
the difficulty of proving its amount will not preclude recovery so long as there is proof of
a reasonable basis upon which to approximate the amount.”). Accordingly, summary
judgment is not appropriate on the ground that damages are too speculative.4
As to the determination that Steven and John’s asserted damages were not caused
by Liska and that creation of the 2021 life estate by other counsel may be a superseding
intervening cause, l egal-malpractice claims require proof of both proximate and but-for
causation. Frederick, 907 N.W.2d at 173. When the claim is based on transactional work,
but-for causation “turns on whether the attorney’s conduct was the but-for cause of the
failure to obtain a more favorable result.” Id. (emphasis omitted). “The doctrine of
superseding cause recognizes that although an actor’s negligent actions may have put the
plaintiff in the position to be injured, and therefore contributed to the injury, the actual
injury may have been caused by an intervening event[, which] prevents the original
negligent actor from being liable for the final injury.” Wartnick v. Moss & Barnett, 490
N.W.2d 108, 113 ( Minn. 1992). There are four elements that must be met for an
intervening cause to be superseding and thus relieve the original negligent actor of liability:
(1) Its harmful effects must have occurred after the original
negligence; (2) it must not have been brought about by the

4 Because we conclude that Steven and John have presented sufficient evidence of
nonspeculative damages based on the exposure of the property to a medical-assistance lien,
we need not reach their argument that they will incur additional damages based on the taxes
they will pay on capital gains if and when they sell the property.
13
original negligence; (3) it must actively work to bring about a
result which would not otherwise have followed from the
original negligence; and (4) it must not have been reasonably
foreseeable by the original wrongdoer.

Id. “[A]n intervening cause which is a normal response to the stimulus of a situation
created by the original negligence will not be considered a superseding cause such that it
relieves the original negligent actor.” Id. at 114 (quotation and alteration omitted).
Here, Steven and John offered evidence through their expert’s opinion that, but for
Liska’s conduct, the property would not have become subject to a medical-assistance lien.
The expert explains that Wayne and Helen’s extinguishment of their life estate in 2019 was
a prohibited transfer within the lookback period that appears to have prevented Helen from
qualifying for medical assistance when she first entered the nursing home. The expert
further explains that, after Wayne and Helen’s life estate was reestablished in 2021, Helen
became eligible for medical assistance. Steven and John’s expert further avers that Liska
should have been aware that extinguishing the 1988 life estate would cause the property to
become subject to a medical-assistance lien.
Steven explains that when they met with new counsel in 2021 his “understanding
was that we had two choices. We either have to pay the value of my mother’s ownership
right up front, because the extinguishment was done like a little over a year before that . . .
or put the . . . deed back the way it was.”
We conclude that this evidence is sufficient to create genuine issues of material fact
regarding causation. Although Liska correctly asserts that the property did not become
subject to a medical-assistance lien until the creation of the 2021 life estate, a reasonable
14
factfinder could find that the creation of the 2021 life estate— to reverse the transfer that
rendered Helen ineligible for medical assistance— was brought about by Liska’s
negligence and was reasonably foreseeable. Thus, we cannot say that creation of the 2021
life estate was a superseding cause as a matter of law. Accordingly, summary judgment is
not appropriate on the ground of causation.
In sum, we reverse the grant of summary judgment against Steven and John and
remand for further proceedings consistent with this opinion.
II.
We last address appellants’ argument that the district court erred by denying their
motion to extend the court-ordered deadline for rebuttal disclosures.
The district court may amend a scheduling order on a showing of good cause. Minn.
R. Civ. P. 16.02; see also Minn. R. Gen. Prac. 111.04. “The district court has broad
discretion to amend scheduling-order deadlines, and we review its decision for an abuse of
discretion.” Mercer v. Andersen, 715 N.W.2d 114, 123 (Minn. App. 2006). The district
court abuses its discretion if it makes findings unsupported by the record, misapplies the
law, or if its decision contradicts logic and the facts on record. Bender v. Bernhard, 971
N.W.2d. 257, 262 (Minn. 2022).
In this case, the parties stipulated to and the court adopted a scheduling order
requiring that appellants’ “[r]ebuttal disclosures shall be made by September 12, 2022.”
On September 12, appellants moved to extend the deadline for rebuttal disclosures.
Appellants stated that they needed the extension because their appraisal was not completed
in time, due to a missed communication, and because the attorney expert’s affidavit was
15
“stuck in the ‘drafts’ section” of the court e-file system and not served. Liska opposed the
motion as an “untimely disclosure of a new expert witness.”
On September 20-21, appellants served the expert reports of an attorney and an
appraiser. The district court determined that there was no good cause to extend the time
for rebuttal testimony, reasoning that the “scheduling order reflects not only the agreements
between the parties but also the [district] court’s agreement” and that appellants’
“explanations are not reasonable excuses to grant extension of time.” The district court
also reasoned that an extension would prejudice Liska because she did not have a chance
to respond or prepare against the untimely disclosure.
Appellants argue that “Minnesota law has long allowed late disclosure of expert
witnesses, where there is no prejudice to the opposing party.” Appellants focus on
prejudice and emphasize that the “expert reports were submitted only nine days late.”
Appellants cite Dennie v. Metropolitan Medical Center, 387 N.W.2d 401 (Minn. 1986) and
Krech v. Erdman, 233 N.W.2d 555 (Minn. 1975), arguing that “prejudice must be stated
and shown.” In Dennie, the supreme court concluded that the district court abused its
discretion by suppressing all of a party’s expert testimony for failure to make a timely
disclosure. 387 N.W.2d at 405. In Krech , the supreme court concluded that the district
court did not abuse its discretion by denying a motion to suppress expert testimony. 233
N.W.2d at 557.
Because the scheduling order was agreed to by the parties and appellants had over
three and half months to communicate with their appraiser and to properly file their expert
reports, we cannot say that the district court abused its discretion by denying the motion to
16
extend the deadline for rebuttal disclosures. We therefore do not reverse the district court’s
ruling. However, the district court has discretion to reconsider its ruling on remand.
Affirmed in part, reversed in part, and remanded.