Mitzel v. Vogel Law Firm, Ltd.

1

2024 ND 171

Sharon Ardelle Mitzel, Fred Alan Mitzel, Jr., and Eric Joseph Mitzel, Plaintiffs and Appellants v. Vogel Law Firm, Ltd. and Jerilynn Brantner Adams, Defendants and Appellees

No. 20230372

Supreme Court of North Dakota

September 12, 2024

Appeal from the District Court of Cass County, East Central Judicial District, the Honorable Bobbi B. Weiler, Judge.

Paul A. Sortland, Minneapolis, MN, for plaintiffs and appellants.

Richard J. Thomas (argued) and Chris Angell (on brief), Arden Hills, MN, for defendants and appellees.

OPINION

Bahr Justice

[¶1] Plaintiffs Sharon Mitzel, Alan Mitzel, and Eric Mitzel appeal from a judgment dismissing their claims with prejudice after the district court granted Defendants Vogel Law Firm and Jerilynn Brantner Adams (collectively, "Vogel") partial summary judgment dismissing Alan and Eric Mitzel's claims, and at trial granted Vogel judgment as a matter of law dismissing Sharon Mitzel's remaining claims. We conclude the court did not err in granting partial summary judgment dismissing Alan and Eric Mitzel's legal malpractice claims against Vogel. We further conclude that the court did not err in determining the measure of damages and that Sharon Mitzel presented no evidence she gave up an interest in the marital property to secure Fred Mitzel's agreement to deed Section 19 to Alan and Eric Mitzel upon his death. Finally, we conclude the court erred in determining Sharon Mitzel presented no evidence she incurred attorney's fees and costs due to Vogel's alleged legal malpractice. We affirm the judgment in part and reverse in part; we remand for further proceedings consistent with this opinion.

I

[¶2] This case arises out of alleged legal malpractice in an underlying divorce action involving the disposition of land in LaMoure County, referred to as "Section 19."

[¶3] Fred Mitzel and Sharon Mitzel were married and had two sons together- Alan Mitzel and Eric Mitzel. In 2004, Fred Mitzel and Sharon Mitzel formed the Fred Mitzel Family LLLP ("LLLP"). In March 2005, Fred Mitzel and Sharon Mitzel executed a quit claim deed conveying their interests in a large portion of their farm, including their interests in Section 19, along with other property to the LLLP.

[¶4] In August 2007, Fred Mitzel commenced the underlying action for divorce against Sharon Mitzel. Sharon Mitzel retained Vogel to represent her in the divorce action. In July 2009 Fred Mitzel and Sharon Mitzel entered into a partial stipulation that valued and divided the parties' property. Even though neither party apparently personally owned it, the July 2009 stipulation purported to award Section 19 to Fred Mitzel "[s]ubject to deeding to boys upon death."

[¶5] In December 2009, Fred Mitzel and Sharon Mitzel entered into a Marital Termination Agreement ("MTA"). In the MTA, consistent with the partial stipulation, the parties agreed among other things to award Section 19 to Fred Mitzel "[s]ubject to restrictions on sale to anyone other than sons, Alan and Eric Mitzel; and requirement to deed to Alan and Eric Mitzel upon Fred's death." The MTA also awarded Fred Mitzel "all right, title, interest, and equity" in the LLLP. A divorce judgment, consistent with the MTA, was subsequently entered in December 2009, dissolving Fred Mitzel and Sharon Mitzel's marriage.

[¶6] In September 2018, the LLLP and Fred Mitzel commenced a quiet title action against Sharon Mitzel, Alan and Eric Mitzel, and AgCountry Farm Credit Services, FLCA ("AgCountry"), seeking an order declaring the LLLP the sole fee simple owner of Section 19, subject only to the mortgage interests held by AgCountry, and declaring the restrictions on alienation in the divorce judgment "null and void." In February 2019, the district court consolidated the quiet title action with the Mitzels' divorce action. In October 2019, the LLLP and Fred Mitzel moved for summary judgment; AgCountry also moved for summary judgment. In November 2019, represented by different counsel, Sharon Mitzel and her sons moved the district court for relief from the divorce judgment under N.D.R.Civ.P. 60(a), seeking the court to correct the "error, oversight, and omission" regarding the transfer of certain real property, and moved for contempt against Fred Mitzel.

[¶7] In April 2020, the district court entered an order in the consolidated cases. In its order, the court denied Sharon Mitzel and her sons' Rule 60(a) motion, concluding that because the MTA and divorce judgment purported to distribute property not owned by the parties to that action, the relief they requested was not fixing a typographical or clerical error, but rather a question of real estate ownership, and thus was not an "oversight or omission" the court could remedy under Rule 60(a). The court held that what Sharon Mitzel and her sons actually sought was a remedy under Rule 60(b) for relief due to "mistake, inadvertence, surprise, or excusable neglect," but they were "time barred from such a request." In its order, the court also granted summary judgment to the LLLP and Fred Mitzel, holding Section 19 was owned in fee simple by the LLLP; and to AgCountry, finding it had a valid mortgage against the property. The court explained that "a divorce judgment that purported to distribute property that was not owned by either party to the divorce" was "a nullity," and, further, "any claim by the Mitzel sons arises out of the Divorce Judgment and for the reasons stated are a nullity." No appeal was taken from the court's final judgment.

[¶8] In September 2020, Sharon Mitzel, Alan Mitzel, and Eric Mitzel commenced this legal malpractice action against Vogel, seeking damages for alleged negligence in the divorce action and causing them to "lose" Section 19 in settling the divorce action. Before trial, the district court granted partial summary judgment to Vogel dismissing Alan and Eric Mitzel's claims holding they lacked standing as non-clients to assert legal malpractice claims against Vogel. The court denied Vogel's summary judgment motion seeking dismissal of Sharon Mitzel's claims.

[¶9] In September 2023, the district court held a trial on Sharon Mitzel's claims. After Sharon Mitzel rested her case, the court granted Vogel's motion for a directed verdict. The court held Sharon Mitzel failed to present any evidence that she "gave up" any amount of the marital estate, to which she was otherwise entitled, in return for Fred Mitzel's promise to convey Section 19 to Alan and Eric Mitzel upon his death. The court held no evidence supported the conclusion she was damaged as a result of Vogel's alleged malpractice.

II

[¶10] This Court has discussed the four elements of a legal malpractice action against an attorney:

The elements of a legal malpractice action against an attorney for professional negligence are: 1) the existence of an attorney-client relationship, 2) a duty by the attorney to the client, 3) a breach of that duty by the attorney, and 4) damages to the client proximately caused by the breach of that duty.

Fahey v. Cook, 2024 ND 138, ¶ 8 (quoting Mullin v. Pendlay, 2022 ND 205, ¶ 6, 982 N.W.2d 330). "Generally, expert testimony is necessary to establish the professional's standard of care (duty) and whether the professional's conduct in a particular case deviated from that standard of care (breach of duty)." Johnson v. Bronson, 2013 ND 78, ¶ 22, 830 N.W.2d 595 (quoting Wastvedt v. Vaaler, 430 N.W.2d 561, 565 (N.D. 1988)). "When it is alleged that an attorney negligently failed to perform some act on behalf of the client, the plaintiff must allege and prove performance of the act would have benefitted the client." Id. (quoting Dan Nelson Constr., Inc. v. Nodland &Dickson, 2000 ND 61, ¶ 14, 608 N.W.2d 267) (emphasis added). "In this context, the 'case-within-a-case' doctrine applies to alleged negligently-conducted litigation and requires that, but for the attorney's alleged negligence, the litigation would have terminated in a result more favorable for the client." Id. (quoting Dan Nelson Constr., at ¶ 14) (emphasis added). A plaintiff alleging legal malpractice must prove the attorney's negligence was the proximate cause of the damage. Id.

III

[¶11] Alan and Eric Mitzel argue the district court erred when it granted partial summary judgment dismissing their legal malpractice claims for lack of standing. They assert Vogel's negligence "cost" them their interest in Section 19.

[¶12] The district court granted partial summary judgment to Vogel dismissing Alan and Eric Mitzel's claims on the basis they lacked standing. Alan and Eric Mitzel argued they had standing to sue for malpractice because they were direct beneficiaries of their parents' divorce decree. The court rejected the argument, concluding North Dakota law requires an attorney-client relationship for a plaintiff to bring a legal malpractice action. The court "refuse[d] to adopt the rule that non-clients can sue for legal malpractice if they are a direct beneficiary of a contract."

A

[¶13] Under N.D.R.Civ.P. 56, we review the district court's summary judgment decision de novo to decide whether the information available to the district court was free of any genuine issues of material fact and whether the moving party was entitled to a judgment as a matter of law. Fahey, 2024 ND 138, ¶ 7; Mullin, 2022 ND 205, ¶ 5. "Summary judgment is appropriate against parties who fail to establish the existence of a factual dispute on an essential element of a claim." Riemers v. Omdahl, 2004 ND 188, ¶ 4, 687 N.W.2d 445 (quoting Zuger v. State, 2004 ND 16, ¶ 7 673 N.W.2d 615). A party resisting a summary judgment motion may not simply rely upon the pleadings or upon unsupported conclusory allegations. Id. Although summary judgment is ordinarily inappropriate for legal...