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STATE OF MINNESOTA IN COURT OF APPEALS A07-2327 Lady Jayne Fontaine f/k/a Jayne Fraser, Appellant, vs. Geraldine Carlen Steen, et al., Respondents. Filed January 27, 2009 Affirmed Minge, Judge Hennepin County District Court File No. 27-CV-06-11341 Kenneth Hertz, Hertz Law Offices, P.A., 3853 Central Avenue Northeast, Columbia Heights, MN 55421 (for appellant) William L. Davidson, Paul C. Peterson, Lind, Jensen, Sullivan & Peterson, 150 South Fifth Street, Suite 1700, Minneapolis, MN 55402 (for respondents) Considered and decided by Minge, Presiding Judge; Schellhas, Judge; and Johnson, Judge. SYLLABUS 1. Whether a legal-malpractice claim requires expert testimony to establish a prima facie case is a question of law, reviewed de novo on appeal. 2. An adverse court ruling on a legal issue does not necessarily constitute a prima facie showing of legal malpractice in that same proceeding.

OPINION MINGE, Judge Appellant challenges the district court's grant of summary judgment and dismissal of her legal-malpractice claim against respondents and the district court's judgment in favor of respondents on their counterclaim for unpaid legal services. We affirm. FACTS James Fraser initiated a marriage dissolution action against appellant Lady Jayne Fontaine (f/k/a Jayne Fraser) in 2000, and appellant hired respondents Geraldine Carlen Steen and the Beckman & Steen Law Firm to represent her. James Fraser's father, Gerald Fraser, had financed the marital home pursuant to a purported contract for deed. During the dissolution proceeding, Gerald Fraser served a notice of cancellation of the contract for deed. On October 9, 2000, respondent Steen, on appellant's behalf, moved the district court to join Gerald Fraser as a third-party respondent in the divorce action and to enjoin him from canceling the contract for deed. At a November 13, 2000 hearing, the district court granted the motion and enjoined Gerald Fraser from canceling the contract for deed. During the November 13 hearing, appellant alleges that she told respondent Steen that she had accumulated sufficient funds and was able to pay the outstanding arrears owed to Gerald Fraser on the contract for deed but that respondent Steen ignored her and "[gave] me a look that indicated to me that I should not talk to her while she was before the Judge." Respondent Steen denies that appellant ever told her that she was prepared to cure the default and observes that, even if she had, because James Fraser was under a 2

district court order to make the payments to his father on the home pending completion of the dissolution proceeding, it was tactically not advisable for appellant to cure the default in the midst of the dissolution proceeding. In the afternoon of November 22, 2000, the day before Thanksgiving, Gerald Fraser's attorney sent a settlement offer via fax and U.S. Mail to respondent Steen's office. The offer did not state that it would expire or be withdrawn unless accepted by a certain time. On Friday, November 24, 2000, Gerald Fraser's attorney sent a letter withdrawing the offer via fax and U.S. Mail. According to respondent Steen, she did not see either communication until Monday, November 27, 2000, because she was out of the office at appointments on Wednesday afternoon and her office was then closed until Monday due to the Thanksgiving holiday. Respondent Steen states that, upon receiving the letters, she forwarded them to appellant and notes that, in a deposition, appellant admitted that she "may have" received the letters. Appellant asserts that the settlement offer was never communicated to her. Respondents represented appellant until approximately the end of January 2001, at which time appellant retained new legal counsel for both the dissolution proceeding and the controversy with Gerald Fraser over the default on financing the home. On January 30, 2001, the district court agreed to reconsider its November 13 joinder and temporaryinjunction decisions. On March 30, 2001, the district court reversed itself on these matters. Appellant sought review of those district court decisions. Ultimately, this court affirmed. We determined that the district court correctly ruled that it did not have 3

authority to make Gerald Fraser a party to the marriage dissolution action for the purpose of enjoining him from canceling the contract for deed. But we remanded because we concluded that appellant was entitled to judicial review of her claim and that the contract for deed was actually an equitable mortgage that required foreclosure. Fraser v. Fraser, 642 N.W.2d 34, 40 (Minn. App. 2002). Appellant commenced this lawsuit in May 2006, alleging that the following conduct constituted legal malpractice: (1) attempting to join Gerald Fraser in the dissolution proceeding instead of filing a separate action; (2) disregarding appellant's willingness to pay Gerald Fraser the arrears on the contract for deed on the home; and (3) failing to promptly communicate Gerald Fraser's November 22, 2000 settlement offer. She claimed that, because of this malpractice, she incurred approximately $90,000 in litigation expenses. Appellant's pleading did not include an affidavit of expert review or an allegation that an expert was not necessary. Respondents denied appellant's

allegations, counterclaimed for payment of outstanding legal bills, demanded that appellant comply with the expert disclosure requirements stated in Minn. Stat.

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