Raymond Kvalvog, 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This opinion is nonprecedential except as provided by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
A24-1400

Raymond Kvalvog,
Appellant,

vs.

Garth Unke, et al.,
Respondents.

Filed August 11, 2025
Affirmed
Ross, Judge

Otter Tail County District Court
File No. 56-CV-23-1466

Kevin T. Duffy, Duffy Law Office, Thief River Falls, Minnesota (for appellant)

Richard J. Thomas, Chris Angell, Burke & Thomas, PLLP, Arden Hills, Minnesota (for
respondents)

Considered and decided by Ross, Presiding Judge; Wheelock , Judge; and
Halbrooks, Judge.∗
NONPRECEDENTIAL OPINION
ROSS, Judge
Two sons of Raymond Kvalvog were killed and others injured when a car driven by
one of the sons rolled into a highway median. An injured crash survivor sued Kvalvog,

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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whose insurer appointed Garth Unke to serve as his defense counsel. Kvalvog’s insurer
settled the suit against Kvalvog’s wishes, leading Kvalvog to sue Unke and his law firm,
alleging attorney malpractice. Unke successfully moved for summary judgment because
Kvalvog failed to allege compensable damages. Kvalvog appeals, arguing that he could
recover nominal damages, forfeited attorney fees, damages from unexplored claims, and
the costs of his insurance-premium increases. For each theory, Kvalvog either suffered no
damage, forfeited the argument by not raising it in the district court, or failed to offer more
than speculation in support. We therefore affirm.
FACTS
We base this review of the district court’s grant of summary judgment against
Raymond Kvalvog on the undisputed evidence and on any disputed evidence construed in
the light most favorable to his claims. See Minn. R. Civ. P. 56; Warren v. Dinter, 926
N.W.2d 370, 375 (Minn. 2019). This case is a tertiary dispute, arising from two others that
followed closer to the June 2015 Interstate 94 tragic collision detailed in Kvalvog v. Lee,
No. A20-0693, 2021 WL 3027269, at *1 (Minn. App. July 19, 2021), rev. denied (Minn.
Sept. 29, 2021). The collision involved teenagers Zachary and Connor Kvalvog, who were
killed while they traveled to a high school basketball tournament with teammates. Zachary
was driving his parents’ pickup truck with Connor, Mark Schwandt, and Jimmy Morton as
passengers, while other teammates convoyed in two other vehicles. The other two vehicles,
one driven by the boys’ coach Josh Lee, passed a semitruck, but as Zachary tried to pass,
the semi began moving into his lane and Zachary lost control of the pickup, which rolled
in the median. The collision killed the Kvalvog brothers and injured Schwandt and Morton.
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Initial Litigation
Kvalvog and his wife sued Lee, their sons’ school, the pickup’s manufacturer, and
their own insurer. Lee and the school filed a third-party complaint against the unidentified
semi driver. Minnesota State Trooper Rod Eischens, who had prepared a crash-
investigation report, testified that the semi’s encroaching into Zachary’s lane caused the
crash. A jury found that the semi driver was solely negligent and caused the collision. The
Kvalvogs later unsuccessfully moved for relief from judgment, alleging newly discovered
personal connections between Trooper Eischens and people associated with the school,
including the school’s principal, Chris Nellermoe. The district court in that case did not
allow the Kvalvogs to depose Trooper Eischens, and we affirmed both the decisions against
the Kvalvogs. Id. at *8, *12.
Secondary Litigation
Schwandt later sued Kvalvog, Lee, his own insurer, and the school for injuries he
suffered in the crash. He alleged that Zachary had been negligent and contributed to the
accident, and that Kvalvog had negligently entrusted his pickup to Zachary. Kvalvog’s
insurer, Secura Supreme Insurance Company, appointed Garth Unke to defend Kvalvog in
that suit. Kvalvog denied liability and asserted cross-claims against Lee and the school for
contribution and indemnity. Unke allegedly had led Kvalvog to believe that his cross-
claims could be amended to include additional claims against the school, Nellermoe, Lee,
and Schwandt after obtaining the “crucial depositions” of Nellermoe’s wife and Trooper
Eischens.
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Kvalvog wanted Unke to delay scheduled settlement mediation until he could add
the other claims, b ut, at Unke’s urging , Kvalvog agreed to the mediation. Unke and
Kvalvog had no intention of settling, however, believing Schwandt’s claim to be meritless.
Although Unke assured Kvalvog that he would have an active role in the discussions, he
mostly left Kvalvog out of them. Secura assigned its representative to participate in the
mediation, and the representative settled the case on Kvalvog’s behalf for $250,000 to be
paid by the insurance company, agreeing to a Pierringer release allowing the plaintiff to
pursue claims against other defendants. According to Kvalvog, Unke “essentially” told him
after the mediation that Secura was a good-paying client of his and he did not feel he could
go against its wishes. He believes in essence that Unke tricked him into going forward with
the mediation knowing that Secura intended to settle. Kvalvog complained that Unke
should have advised him of Secura’s plans to settle and that Kvalvog had the right to his
own independent counsel and assuming uninsured liability for Schwandt’s claims.
Kvalvog moved the district court to stay the settlement agreement so that he could
pursue his claims. He said that he wanted “a little time to simply take the depositions . . . of
Sergeant Eischens, so [he and his wife could] finally have some peace of mind.” He added,
“I am not trying to hold up any money or anybody’s settlement.” He emphasized, “It’s not
about the money. It’s never been about the money.” The district court denied his motion,
and Kvalvog appealed, arguing that the district court should have stayed the settlement
because Unke did not “live up to his fiduciary duty to Kvalvog when he agreed to
settle . . . because the settlement caused Kvalvog to lose his cross -claims and planned
depositions.” Schwandt v. Park Christian Sch. , No. A23-0052, 2023 WL 6054270, at *5
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(Minn. App. Sept. 18, 2023) (quotation marks omitted), rev. denied (Minn. Dec. 19, 2023).
We rejected the argument and affirmed, reasoning that Kvalvog had failed to show that the
district court erred or establish that the alleged error harmed him. Id. at *6, *8. We observed
that the settlement included a Pierringer release and that Kvalvog’s cross -claims for
contribution and indemnity were therefore extinguished in the settlement. Id. at *7. And
we concluded that Kvalvog’s inability to take the depositions did not prejudice him:
We acknowledge Kvalvog’s understandable anguish
and desire for information about the accident that caused the
deaths of his two sons. Still, “the only objective of the pretrial
discovery rules is to allow a party to obtain all of the facts
relative to a claim or defense.” . . . Because “[a]ll claims in this
matter have resolved,” including any claims against Kvalvog
and Kvalvog’s cross-claims, the depositions of the state trooper
and the PCS principal ’s wife are no longer “relevant to any
party’s claim.” Minn. R. Civ. P. 26.02(b).

Id.

Tertiary Litigation

Kvalvog’s litigation persists in this action. Kvalvog, unrepresented by legal counsel,
filed a civil complaint naming Unke and his law firm of Stich, Angell, Kreidler & Unke
P.A. as defendants. The complaint alleges that Unke breached his duty of care to Kvalvog
through his representation in the Schwandt action against him. This breach allegedly
prevented Kvalvog from pursuing a counterclaim against Schwandt, from recovering on
his cross-claim against the school, and from deposing Trooper Eischens and Nellermoe’s
wife.
Unke and his law firm moved for summary judgment on the ground that Kvalvog
had not presented and could not present any evidence of compensable damages from
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Unke’s alleged malpractice. Kvalvog opposed the motion, naming various theories of
damages, most stemming from potential claims he might rest on possible new evidence
from the depositions. Kvalvog also maintained that he was harmed because he had lost
insurance coverage because of the settlement and had trouble finding new coverage.
The district court granted the motion for summary judgment, dismissing Kvalvog’s
complaint. Kvalvog appeals.
DECISION
Kvalvog argues that the district court erred by granting the respondents summary
judgment. The district court should enter summary judgment whe n no genuine issue of
material fact exists and the moving party is entitled to judgment as a matter of law. Minn.
R. Civ. P. 56.01; Warren, 926 N.W.2d at 374. We review a challenge to summary judgment
de novo based on the undisputed evidence and viewing any disputed evidence in the light
most favorable to the nonmoving party. See Warren, 926 N.W.2d at 374–75. Kvalvog
contends that his complaint should survive summary judgment because his damages might
be measured from his lost claims as well as his potential success in other actions. He also
argues that, under a breach-of-fiduciary-duty theory, the district court could award him fee-
forfeiture or nominal damages. And he maintains that he might obtain a damages award
based on his increased insurance costs. We address each argument.
Kvalvog alleges harms stemming from the Schwandt settlement. We adopt our
previous reasoning in the Schwandt suit and our conclusion that Kvalvog was not harmed
by the loss of his cross -claims and depositions. Kvalvog’s claims in the Schwandt action
included contribution and indemnity, seeking to shift the burden of his liability. We held
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that because Kvalvog, the school, and Lee settled with Schwandt on a Pierringer basis,
each tortfeasor was obligated to pay only his proportionate share of liability. Schwandt,
2023 WL 6054270, at *7. We recognized that contribution or indemnity claims brought by
any nonsettling defendant against the settling defendants are barred and that no party could
bring a claim against Kvalvog, Lee, or the school for contribution or indemnity. Id. We
observed that pretrial discovery is designed only to reveal facts that bear on a claim or
defense. Id. And we concluded that, because the settlement resolved all the claims in the
matter, including Kvalvog’s, no facts remained to be discovered relevant to any claim or
defense. Id. Our reasoning resolved the questions central to Kvalvog’s alleged harm in that
case and here to the extent he alleges harms based on contribution or indemnity.
We must address Kvalvog’s contention that he might have discovered evidence
through the hoped-for depositions to build claims beyond contribution and indemnity, or
to pursue claims in other actions. The district court here construed Kvalvog’s potential
claims as malicious prosecution, defamation, fraud, misrepresentation, and intentional
infliction of emotional distress. Kvalvog does not contest this characterization on appeal,
and we limit our review to theses potential bases of recovery.
Kvalvog faces a central problem in basing his present litigation on the theory that
Unke’s alleged malpractice cost him the opportunity to find evidence to support these yet-
unasserted claims: Unke’s alleged malpractice did not impair Kvalvog’s ability to pursue
these claims. These claims are all tort claims. See Leiendecker v. Asian Women United of
Minn., 731 N.W.2d 836, 841 (Minn. App. 2007) (defamation), rev. denied (Minn. Aug. 7,
2007); G.A.W., III v. D.M.W., 596 N.W.2d 284, 286–87 (Minn. App. 1999) (fraud and
8
intentional infliction of emotional distress), rev. denied (Minn. Sept. 28, 1999); Kellar v.
VonHoltum, 568 N.W.2d 186, 192 (Minn. App. 1997) (malicious prosecution), rev. denied
(Minn. Oct. 31, 1997); M.H. v. Caritas Fam. Servs., 488 N.W.2d 282, 287 (Minn. 1992)
(misrepresentation). And tort claims are not compulsory, meaning that a party who fails to
assert them in one action is not precluded from doing so in a later action. See Minn. R. Civ.
P. 13.01; Leiendecker, 731 N.W.2d at 840. Likewise, “[c]ross-claims are not mandatory or
compulsory in Minnesota.” Denzer v. Frisch, 430 N.W.2d 471, 475 (Minn. App. 1988);
see Minn. R. Civ. P. 13.07. Kvalvog therefore did not lose the ability to pursue these claims
and presumably undertake discovery because of the settlement of Schwandt’s suit. We add
that, relatedly, one would have to speculate to conclude that the untaken depositions would
have revealed evidence favorable to any unasserted tort claim, or any claims Kvalvog
might make to re-open the initial litigation; and speculation is an insufficient ground on
which to establish a genuine issue of material fact to avoid summary judgment. Bob
Useldinger & Sons, Inc. v. Hangsleben, 505 N.W.2d 323, 328 (Minn. 1993). For these
reasons, Kvalvog’s unmade tort claims provide no reason to reverse the district court’s
summary-judgment decision.
Kvalvog’s arguments center on damages he could secure under a breach-of-
fiduciary-duty theory in the form of nominal damages or Unke’s forfeiting his attorney
fees. But “[p]laintiffs are not entitled to recover on a theory neither plead[ed] nor
voluntarily litigated.” Folk v. Home Mut. Ins. Co., 336 N.W.2d 265, 266 (Minn. 1983) .
Professional-negligence and breach-of-fiduciary-duty claims against attorneys are distinct,
in that successful professional-negligence claims involve an attorney’s breaching a
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standard of care and successful fiduciary-duty claims involve an attorney’s breaching a
standard of conduct. Mittelstaedt v. Henney, 969 N.W.2d 634, 639 (Minn. 2022). Kvalvog
concedes— seemingly contrary to the record —that he did not reference a fiduciary-duty
claim during the summary-judgment proceedings. But Kvalvog’s complaint focuses on
Unke’s allegedly breaching a standard of care rather than a standard of conduct. Under this
state’s notice-pleading standard, see Halva v. Minn. State Colls. & Univs., 953 N.W.2d
496, 500 (Minn. 2021 ), Kvalvog never put respondents on notice that he was making a
fiduciary-duty claim and does not allege that they consented to litigate it. And he also failed
to make the attorney-fee -forfeiture and nominal-damages arguments that he now asserts
arise from a fiduciary-duty claim. Under Thiele v. Stich, we decline to decide these
damages arguments as they were not argued to or considered by the district court. 425
N.W.2d 580, 582 (Minn. 1988). Although Kvalvog insists that his nominal-damages and
fee-forfeiture arguments were implicit in his alleged fiduciary -duty claim and urges us to
address the issue in the interests of justice, see Minn. R. Civ. App. P. 103.04, we decline
to do so.
Kvalvog argues too that he suffered harm from being left to pay increased insurance
premiums and from spending time searching for a new insurance company after Secura
dropped his coverage allegedly because of the settlement. The district court rejected this
argument in part because Kvalvog failed to submit specific evidence to support it. Damages
that are remote and speculative cannot be recovered. Jackson v. Reiling, 249 N.W.2d 896,
897 (Minn. 1977). Because there is no general test for determini ng whether damages are
remote or speculative, we generally defer to the district court’s assessment. Id.; Bryson v.
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Pillsbury Co., 573 N.W.2d 718, 722 (Minn. App. 1998) (applying this principal to a district
court’s granting summary judgment on damages). Kvalvog’s cited evidence here is meager.
He did not offer any evidence showing the difference in premiums between his former and
new insurance policies or specifically showing the extent of time and effort he spent
seeking a new insurer. Although “uncertainty as to the amount [of damages] is not” always
fatal to a claim, Olson v. Aretz, 346 N.W.2d 178, 183 (Minn. App. 1984) (quotation
omitted), “[m]ere speculation, without some concrete evidence, is not enough to avoid
summary judgment,” Bob Useldinger & Sons, 505 N.W.2d at 328. Affording the district
court deference in this damages determination, we hold that Kvalvog’s evidentially
unsupported generalizations about damages from his change of insurance are too
speculative to survive respondent’s summary-judgment motion.
Kvalvog cursorily asserts that the district court erred in its conclusions on each type
of harm he argued to the district court. He bears the burden on appeal of showing
prejudicial error. Loth v. Loth, 35 N.W.2d 542, 546 (Minn. 1949). Without citing the record
or legal authority in support, he does not lead us to conclude that he was prejudiced by the
district court’s treatment of his arguments that we have not otherwise addressed. And our
de novo review satisfies us that the district court properly entered summary judgment
favoring Unke and his law firm.
We emphasize, as we have in prior cases arising from the underlying crash, that we
know the death of Kvalvog’s sons was tragic and that we are not the least unsympathetic
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to the ongoing quest for answers and the effort to properly assign fault. Our affirmance
speaks only to the legal questions presented in this appeal.
Affirmed.