Steven Lee Mittelstaedt, 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This opinion is nonprecedential except as provided by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
A23-0112

Steven Lee Mittelstaedt, et al.,
Appellants,

vs.

Maxim Management, LLC,
Defendant,

William H. Henney,
Respondent,

John W. Prosser,
Defendant.

Filed August 14, 2023
Reversed and remanded
Segal, Chief Judge

St. Louis County District Court
File No. 69VI-CV-17-451

Charles J. Lloyd, Adam C. Hagedorn, Livgard, Lloyd & Christel PLLP, Minneapolis,
Minnesota (for appellants)

William H. Henney, Chanhassen, Minnesota (self-represented respondent)

Considered and decided by Cochran, Presiding Judge; Segal , Chief Judge; and
Wheelock, Judge.

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NONPRECEDENTIAL OPINION
SEGAL, Chief Judge
Appellant Steven Lee Mittelstaedt sued respondent-attorney William H. Henney
alleging breach of fiduciary duty as part of a multi-claim lawsuit involving a business
dispute. In the claim against Henney, Mittelstaedt alleged that he and Henney had an
attorney-client relationship and that Henney breached fiduciary duties owed to Mittelstaedt
by failing to disclose Henney’s financial and business interest in a lease agreement
involving Mittelstaedt’s business and by drafting an agreement that was objectively unfair
to Mittelstaedt.
This case has already been before the Minnesota Supreme Court and is now back
before us on Mittelstaedt’s appeal from the district court’s second judgment dismissing his
claim against Henney. The current judgment is based on the district court’s determination
that expert testimony is necessary to establish a prima facie case on the first two elements
of Mittelstaedt’s breach-of-fiduciary-duty legal-malpractice claim (the fiduciary- duty
claim)—the existence of an attorney-client relationship and a breach of the standard of
conduct established by that relationship. Based on that determination, the district court
dismissed the claim against Henney because Mittelstaedt did not provide an expert affidavit
to establish a prima facie case on those elements as required by Minn. Stat. § 544.42 (2022).
The district court, however, applied an incorrect legal standard in assessing whether
expert testimony is required. The standard applied by the district court—the medical-
malpractice standard— was expressly rejected by the Minnesota Supreme Court in the prior
appeal of this case. Mittelstaedt v. Henney, 969 N.W.2d 634, 640 (Minn. 2022)
3
(Mittelstaedt II). Applying the correct legal standard to the particular facts presented here,
we conclude that expert testimony is not required to establish a prima facie case concerning
the first two elements of the fiduciary-duty claim. We therefore reverse the dismissal and
remand the case to the district court.
FACTS
This dispute arises out of various business dealings between the parties and their
business entities. Mittelstaedt runs a trucking operation. He owns multiple businesses
related to that operation, including Wide Open Services LLC and appellant Iron Range
Repair & Storage LLC. In February 2012, Mittelstaedt entered into two leases with Beacon
Bank, which owned a property in Virginia, Minnesota (the Virginia property) where
Mittelstaedt relocated his trucking operation and home. 1 Both leases contained an option
to purchase and an acknowledgement that Mittelstaedt made payments to obtain the
options. The two option payments totaled $60,000 and were put into an escrow account.
After Mittelstaedt relocated to the Virginia property, the sole customer of
Mittelstaedt’s trucking operation filed for bankruptcy and shut down its operations. As a
result, Mittelstaedt was unable to make the lease payments. Beacon Bank informed
Mittelstaedt that it had a buyer approved to purchase the Virginia property and offered to
return the option payments if he cooperated with the sale, but Mittelstaedt felt that he had
invested too much in the property and still hoped to eventually purchase it.

1 The Virginia property is part residential and part commercial; one of the leases covered
the residential portion of the property and the other lease covered the commercial portion.
4
In an effort to remain on the Virginia property, Mittelstaedt asked John Prosser to
purchase the property from Beacon Bank and then continue leasing it to Mittelstaedt with
an option to purchase. Mittelstaedt originally met Prosser at a trade show for custom
vehicles around 2008. After meeting, the two became friends and “did quite a bit of
business together.” Around 2010, Prosser introduced Mittelstaedt to Henney, his attorney.
According to Mittelstaedt, Henney subsequently provided legal advice to him and his
businesses regarding an insurance claim and Mittelstaedt’s divorce.
In March 2015, Prosser purchased the Virginia property from Beacon Bank. Prosser
then assigned the property to Maxim Management LLC —a company that he and Henney
created to own and manage the Virginia property as equal partners. The following month,
Maxim Management leased the property to Mittelstaedt’s company, Wide Open Services.
Henney represented Prosser during the lease negotiations and drafted the lease and all
related documents; Mittelstaedt was represented by separate counsel. Henney did not
disclose to Mittelstaedt or his counsel that Henney was a 50% owner of Maxim
Management. Henney signed the lease on behalf of Maxim Management and Mittelstaedt
signed and personally guaranteed the lease on behalf of Wide Open Services. The lease
contained an option to purchase, which Mittelstaedt claims to have paid $25,000 to obtain.
Additionally, as part of the agreement, Mittelstaedt and his now former wife conveyed an
adjacent property to Maxim Management. Around this time, Mittelstaedt and Prosser also
established a joint business venture in which Mittelstaedt repaired used trucks and Prosser
then resold them.
5
By the end of 2015, Mittelstaedt struggled to make the payments due under the lease
and sought to renegotiate. The result was a second lease, which became effective in
January 2016. Henney again signed the lease on behalf of Maxim Management and
Mittelstaedt again signed and personally guaranteed the lease, but this time on behalf of
Iron Range Repair & Storage. The second lease lowered the monthly rent but, allegedly
unbeknownst to Mittelstaedt, did not contain an option to purchase. Mittelstaedt believed
that his share of the profits from the joint venture satisfied the lower rent due under the
second lease, and as a result stopped making rent payments. Prosser, however, asserted
that Mittelstaedt was in default.
Maxim Management subsequently brought an eviction action against Mittelstaedt
and Iron Range Repair & Storage. In response, Mittelstaedt sued Maxim Management,
Henney, and Prosser. 2 Mittelstaedt alleged a breach-of-fiduciary-duty claim against both
Henney and Prosser, two claims of fraud related to the lease agreements for the Virginia
property, and two claims related to payments that Mittelstaedt alleged he was owed as part
of the joint venture.
Henney, as counsel for himself, Prosser, and Maxim Management, moved for
summary judgment. The district court granted the motion for summary judgment in part
and dismissed the fiduciary-duty claim against Henney and the two fraud claims. As a

2 The complaint also alleged claims against Prosser Holdings LLC, a company owned by
Prosser that may have been involved in the joint venture. All of the claims filed against
Prosser Holdings also named Prosser as a defendant and are not at issue on appeal; for
simplicity, we refer only to Prosser when summarizing those claims.
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result, three claims remained: the breach- of-fiduciary-duty claim against Prosser and the
two claims related to the joint venture between Prosser and Mittelstaedt.
The district court consolidated Mittelstaedt’s remaining claims with the eviction
action and held a court trial. Following trial, the district court determined that
(1) Mittelstaedt and Prosser “may have breached their fiduciary duties to each other, [but]
neither party has proved any damages flowing from that breach aside from [damages
related the joint venture]”; (2) Mittelstaedt was owed $275,328.28 from the joint venture;
and (3) Mittelstaedt and Iron Range Repair & Storage were not in default of the second
lease at the time the eviction action was filed, but did owe $272,421 under the terms of the
lease. The district court then offset the amounts and awarded Mittelstaedt and Iron Range
Repair & Storage $2,907.28 in damages. Mittelstaedt appealed.
Mittelstaedt I – The Initial Court of Appeals Opinion
On appeal, Mittelstaedt argued, as relevant here, that the district court erred in
granting summary judgment on the fiduciary-duty claim against Henney.
3 This court
affirmed, but on a different ground than the district court. The district court granted
summary judgment based on the determinations that Mittelstaedt was represented by
separate counsel during the negotiation of the first lease, did not offer material evidence
that “Henney took unfair advantage of [the parties’] professional relationship,” and
generally “failed to provide a factual basis for [the] claim against Defendant Henney.” This

3 Mittelstaedt also raised arguments related to the dismissal of the fraud claims and various
findings from the court trial. This court rejected those arguments and the supreme court
denied review on those issues. Accordingly, only the fiduciary-duty claim against Henney
remains at issue.
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court did not reach the merits of the decision, but instead determined that summary
judgment was proper because Mittelstaedt was required to file expert affidavits under
Minn. Stat. § 544.42 but failed to do so. Mittelstaedt v. Henney , 954 N.W.2d 852 (Minn.
App. 2021) (Mittelstaedt I), rev’d, 969 N.W.2d 634 (Minn. 2022).
Under Minn. Stat. § 544.42, subd. 2, when “expert testimony is to be used by a party
to establish a prima facie case [of negligence or malpractice against a professional], the
party must” serve the opposing party with an affidavit of expert review that complies with
certain statutory requirements. When an ex pert affidavit is required for a claim and the
party does not satisfy the requirements of Minn. Stat. § 544.42, the district court must, upon
motion, dismiss the claim. Minn. Stat. § 544.42, subd. 6. This court explained that the
statute “generally requires expert testimony to establish a prima facie case of legal
malpractice.” Mittelstaedt I, 954 N.W.2d at 860. We reasoned that the expert-affidavit
requirement set forth in the statute is applicable to a breach-of-fiduciary-duty claim against
an attorney because such a claim is equivalent to a legal-malpractice claim. Id. at 860-61.
Citing Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 191 (Minn. 1990), this
court commented that “attorney-misconduct cases that do not require expert testimony are
‘rare and exceptional.’” Id. at 863. Finally, this court concluded that, “because this is not
a rare case that does not require expert testimony,” Mittelstaedt’s failure to provide an
expert affidavit under Minn. Stat. § 544.42 was fatal to his claim and, on that basis,
affirmed the entry of summary judgment against Mittelstaedt on the fiduciary-duty claim.
Id.

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Mittelstaedt II – Opinion of the Minnesota Supreme Court
The Minnesota Supreme Court granted review and reversed the decision of this
court on the expert-affidavit issue. Mittelstaedt II, 969 N.W.2d at 641. The supreme court
held that “[t]he expert-affidavit requirement in Minnesota Statutes section 544.42 generally
applies to breach- of-fiduciary-duty claims against attorneys,” but “[w]hether expert
testimony is required to support a breach-of-fiduciary-duty claim against an attorney in a
particular case is a threshold issue to be determined by the district court on a case -by-case
basis.” Id. at 636. The supreme court further determined that this court did not apply the
“ordinary case-by -case analysis” when addressing whether expert testimony was
necessary, but rather applied a more stringent standard that applies in medical-malpractice
claims. Id. at 640. The supreme court explained:
The court of appeals erred by applying the medical-
malpractice presumption we articulated in Sorenson v. St. Paul
Ramsey Medical Ctr., 457 N.W.2d 188 (Minn. 1990), rather
than an ordinary case-by-case analysis to determine that
experts were required here. In Sorenson, we held that only the
“rare” or “exceptional” case would not require expert
testimony, given the complex and scientific nature of facts in
medical-malpractice cases. Because the same considerations
do not necessarily appear as frequently in malpractice claims
against lawyers, the more stringent Sorensen test has limited
applicability to a legal malpractice case. Instead, courts must
decide on an ordinary case-by-case basis whether expert
affidavits are required.

Id. at 640-41 (footnote omitted) (quotation and citations omitted).

The supreme court reversed and remanded to this court to consider the district
court’s summary-judgment decision on the merits. The supreme court instructed this court
that should it determine that summary judgment was not proper on the merits, then the
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matter should “be remanded to the district court for further proceedings, including a
decision as to whether an expert affidavit is necessary in this case.” Id. at 641.
Mittelstaedt III – Court of Appeals Opinion on Remand from the Supreme Court
On remand from the supreme court, this court reversed the district court’s grant of
summary judgment in favor of Henney. Mittelstaedt v. Henney, No. A20-0573, 2022 WL
2297639 (Minn. App. June 27, 2022) (Mittelstaedt III). This court determined that “the
district court erroneously placed the burden of proof on Mittelstaedt to prove Henne y was
frank and fair with him” and therefore erred in granting summary judgment on the merits.
Id. at *3. Consistent with the direction from the supreme court, this court then remanded
the matter to the district court to reconsider the expert-affidavit issue and noted that the
district court could reconsider the motion for summary judgment in light of the proper
burden of proof and guidance from Mittelstaedt II and III.
Following remand, the district court determined that expert testimony is required to
establish a prima facie case on the first two elements of the fiduciary-duty claim against
Henney and that Mittelstaedt was therefore required to file an expert affidavit under Minn.
Stat. § 544.42. The district court reasoned:
The jury in this case will be asked to determine complex
questions regarding the formation of an attorney client
relationship, the termination of that relationship, what
disclosures an attorney must [make] to his or her client, and
how those disclosures should be made. These questions
require testimony concerning the standard of care and rules of
professional conduct which are not familiar to the lay person.

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The district court consequently dismissed the claim and granted summary judgment in
favor of Henney based on Mittelstaedt’s failure to comply with the expert-affidavit
requirement in Minn. Stat. § 544.42.
DECISION
Mittelstaedt argues that the district court applied the wrong legal standard and erred
in determining that expert testimony is required to establish a prima facie case of breach of
fiduciary duty. He maintains that the district court’s dismissal of his claim for failure to
file an expert affidavit under Minn. Stat. § 544.42 was erroneous.
Before addressing the merits of the appeal, we must first resolve the parties’ dispute
over the applicable standard of review. Mittelstaedt contends that the district court’s
decision should be reviewed de novo, but Henney argues that abuse of discretion is the
correct standard. The supreme court’s opinion in Guzick v. Kimball, 869 N.W.2d 42 (Minn.
2015), offers guidance on this issue. In Guzick, the supreme court explained:
We review a district court’s dismissal of an action for
procedural irregularities under an abuse of discretion standard.
But to the extent the dismissal involves interpreting Minn. Stat.
§ 544.42 (2014), we apply de novo review. Further, whether
expert testimony is required to establish a prima facie case is a
question of law that we review de novo.

869 N.W.2d at 46-47 (footnote omitted) (quotation and citations omitted). Here, the district
court’s decision turns on the determination that expert testimony—and therefore an expert
affidavit—is required. Per Guzick, this presents a question of law that we review de novo.
Turning now to the merits, we agree with Mittelstaedt that the district court applied
the wrong legal standard—a standard specifically rejected by the supreme court in
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Mittelstaedt II— in assessing whether an expert affidavit is required in this case by Minn.
Stat. § 544.42. 4 The district court cited Sorenson and applied the medical-malpractice
standard, stating that the “issue in this case, as argued based upon guidance from the higher
courts, is does this particular set of facts require . . . expert affidavits or is it the ‘rare and
exceptional’ case that does not require disclosure.” In reversing this court’s initial opinion,
the supreme court held that it was error to apply “the medical-malpractice presumption . . .
articulated in Sorenson” in a legal-malpractice case. Mittelstaedt II, 969 N.W.2d at 640.
The district court thus erred by applying an incorrect legal standard. We also conclude that
the district court erred in concluding that expert testimony was required under the facts of
this case on the first two elements of the fiduciary-duty claim.
Section 544.42 applies “where expert testimony is to be used by a party to establish
a prima facie case.” Minn. Stat. § 544.42, subd. 2. Whether Minn. Stat. § 544.42 applies
“is a threshold issue for the district court to decide by examining each element of the prima
facie case of malpractice.” Mittelstaedt II, 969 N.W.2d at 640 (quotation omitted). Here,
the elements of the breach-of-fiduciary-duty claim against Henney are “(1) the existence
of an attorney- client relationship, which establishes a standard of conduct, i.e., the duty;
(2) a breach by the attorney of one or more of the fundamental obligations owed to the

4 In this regard, we also note that Henney persisted in using the wrong legal standard—the
Sorenson standard rejected in Mittelstaedt II—not only before the district court on remand
from Mittelstaedt III, but in his briefing and oral argument to this court. We admonish
Henney to correct this error in further proceedings in this matter.
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client under that standard of conduct; (3) causation; and (4) damages.”5 Id. “If any element
demands expert testimony, the statute’s affidavit requirement applies.” Id.
As the next step in our analysis, we review the standard for applying the expert-
affidavit provision of Minn. Stat. § 544.42 in the context of a legal- malpractice claim. In
Guzick, which is cited with approval in Mittelstaedt II, the supreme court clarified that the
general rule that expert testimony is a prerequisite for proceeding with a medical -
malpractice case is not applicable in cases alleging legal malpractice because “complex
issues of science or technology are generally not found in legal malpractice cases.” 869
N.W.2d at 50 (quotation omitted). The court explained that, “[i]nstead of relying on a
general rule, we analyze whether the facts needed . . . are within an area of common
knowledge and lay comprehension such that they can be adequately evaluated by a jury in
the absence of an expert.” Id. The supreme court reinforced that concept in Mittelstaedt
II, noting that the more stringent standard articulated in Sorenson—that it is “only the ‘rare’
or ‘exceptional’ case [that] would not require expert testimony . . . in medical-malpractice
cases”—“has limited applicability to a legal malpractice case.” 969 N.W.2d at 640
(quoting Sorenson, 457 N.W.2d at 191) (other quotation omitted). Thus, under the holding
of Mittelstaedt II, we must determine , under the particular facts of this case, whether the

5 As we stated in Mittelstaedt I, because Mittelstaedt’s claim involves a transactional
matter, the fourth element “reads ‘that but for the defendant’s conduct, the plaintiff would
have obtained a more favorable result in the underlying transaction than the result
obtained.’” Mittelstaedt I, 954 N.W.2d at 860 n.8 (quoting Schmitz v. Rinke, Noonan,
Smoley, Deter, Colombo, Wiant, Von Korff & Hobbs, Ltd., 783 N.W.2d 733, 738 (Minn.
App. 2010), rev. denied (Minn. Sept. 21, 2010)).
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existence of an attorney-client relationship and breach of that relationship “can be
evaluated adequately by a jury in the absence of expert testimony.” Id. (quotation omitted).
We begin by addressing the proof necessary to establish the existence of an attorney-
client relationship. Caselaw provides that “[t]he existence of an attorney-client relationship
is usually a question of fact dependent upon the communications and circumstances.” In re
Paul W. Abbott Co., 767 N.W.2d 14, 18 (Minn. 2009) (quotation omitted). The existence
of “[a]n attorney-client relationship may be established under either a contract or a tort
theory.” Id. “Under a contract theory, an agreement must be shown based on the
circumstances, relationship, and conduct of the parties.” Id. (quotation omitted). And,
“[u]nder a tort theory, a relationship exists when a person seeks and receives legal advice
from an attorney in circumstances in which a reasonable person would rely on the advice.”
Id. (quotation omitted). The tort theory thus specifically relies on a “reasonable person”
standard and focuses on the perspective of the alleged client— not the perspective of what
an expert on the topic of attorney-client relationships would understand.
In this regard, it is important to note that Minn. Stat. § 544.42 applies only to
establishing a prima facie case, not a court’s assessment of the likelihood of success on the
merits. As generally understood, “[a] person can establish a prima facie case by
introducing enough evidence to create a jury question.” 11 Peter N. Thompson, Minnesota
Practice § 301.01 ( 4th ed. 2012). Here, the district court already ruled, in response to
Henney’s December 2017 motion for summary judgment, that Mittelstaedt provided
sufficient evidence—without expert testimony —to create a genuine issue of material fact
on the existence of both an attorney-client relationship and Henney ’s alleged failure to
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disclose his one-half ownership in Maxim Management. Specifically, the district court
stated:
In the present case, [Mittelstaedt has] provided
sufficient evidence to create a fact question regarding whether
or not there was an attorney client relationship between
Defendant Henney and [Mittelstaedt], both before and after the
signing of the lease; whether there continued to be an influence
from that relationship at the time the parties entered into the
leasing agreement; and whether Defendant Henney completely
disclosed his interest in Maxim Management.

Thus, the district court has already determined that Mittelstaedt has made out a prima facie
case on both elements—without reliance on expert testimony.
To determine whether a jury can adequately evaluate those two elements— the
existence of an attorney-client relationship and breach of the standard of conduct owed by
an attorney to a client—we are to look to the particular facts and circumstances of this case.
Mittelstaedt II, 969 N.W.2d at 640. Here, Mittelstaedt has brought forward evidence that
Henney represented one of Mittelstaedt’s companies —Wide Open Services— in an
insurance case, emails from Henney regarding a money judgment for Wide Open Services
in a different case, and various emails regarding Henney’s alleged representation of
Mittelstaedt in connection with Mittelstaedt’s divorce. With respect to the lease
transactions, Mittelstaedt had his own counsel during negotiations for the first lease but not
for the second lease— the lease that omitted the option to purchase. These facts and
circumstances do not seem overly complicated or outside the reach of a jury to “evaluate[]
adequately . . . in the absence of expert testimony.” Id.
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We reach the same conclusion with regard to the claimed breach—Henney’s failure
to disclose that he was a 50% owner of Maxim Management and had a financial interest in
the lease agreement. To the extent that an attorney-client relationship existed between
Henney and Mittelstaedt, the duty to disclose a financial interest in the lease arising out of
something as obvious as a 50% ownership interest is a straightforward obligation, easily
grasped by a jury. As the supreme court noted in Mittelstaedt II : “The fundamental
obligations attorneys owe their clients are the duty of candor, the duty to disclose material
facts, and the duty to put the client’s interests ahead of the attorney’s interests.” 969
N.W.2d at 640.
The district court, in ruling to the contrary, surmised that expert testimony would be
necessary to explain the rules of professional conduct. The applicable rule, however, is not
that complicated. Minnesota Rules of Professional Conduct 1.8(a), concerning a lawyer’s
obligations to a current client when a lawyer has a financial interest in a business
transaction, provides:
A lawyer shall not enter into a business transaction with a
client or knowingly acquire an ownership, possessory,
security, or other pecuniary interest adverse to a client unless:
(1) the transaction and terms on which the lawyer acquires
the interest are fair and reasonable to the client and are fully
disclosed and transmitted in writing in a manner that can be
reasonably understood by the client;
(2) the client is advised in writing of the desirability of
seeking and is given a reasonable opportunity to seek the
advice of independent legal counsel on the transaction; and
(3) the client gives informed consent, in a document
signed by the client separate from the transaction documents,
to the essential terms of the transaction and the lawyer’s role
16
in the transaction, including whether the lawyer is representing
the client in the transaction.

This rule sets out clear guidance and would be well within the grasp of a jury to understand
and to apply.6 We thus conclude that an expert affidavit is not required under the facts and
circumstances of this case to establish the second element of Mittelstaedt’s legal
malpractice claim—whether Henney breached a duty of disclosure.
In sum, we disagree with the district court’s determination that expert testimony,
and therefore an expert affidavit, is required by Minn. Stat. § 544.42 to establish a prima
facie case on the first two elements of Mittelstaedt’s claim—the existence of an attorney-
client relationship and a breach of the standard of conduct by failing to disclose Henney’s
ownership interest in Maxim. We therefore reverse the district court’s determination on
those two elements. Because it appears that the district court did not address whether expert
testimony is required by Minn. Stat. § 544.42 on the remaining two elements—causation
and damages—we remand to the district court to address those elements.
7 As the supreme
court explained in Mittelstaedt II, whether Minn. Stat. § 544.42 applies “is a threshold issue
for the district court to decide by examining each element of the prima facie case of

6 In citing to the rules of professional conduct, we do not suggest that a violation of the
rules necessarily establishes a breach of a lawyer’s fiduciary duties. See L & H Airco, Inc.
v. Rapistan Corp., 446 N.W.2d 372, 380 (Minn. 1989) (advising that the rules “are intended
to discipline attorneys, not provide a basis for civil liability”). But the rules nonetheless
provide guidance concerning a lawyer’s obligations.

7 As we have noted above, because Mittelstaedt’s claim alleges malpractice in a transaction,
not litigation, the fourth element of the malpractice cause of action is modified to read “that
but for the defendant’s conduct, the plaintiff would have obtained a more favorable result
in the underlying transaction than the result obtained.” Mittelstaedt I, 954 N.W.2d at 860
n.8 (quotation omitted).
17
malpractice.” Mittelstaedt II, 969 N.W.2d at 640 (emphasis added) (quotation omitted).
We caution the district court on remand, however, that it must apply the legal standard set
out in Mittelstaedt II in making this evaluation, not the “rare and exceptional” standard for
medical-malpractice claims set out in Sorenson.
The district court’s grant of summary judgment in favor of Henney dated December
19, 2022, is reversed, and we remand for further proceedings consistent with Mittelstaedt
II, III, and this opinion.
Reversed and remanded.