author: HUDSON, Judge.

text:
    Donna MORENO, et al., Appellants, Respondents, v. CITY OF MINNEAPOLIS, Respondent, v. Minneapolis Institute of Arts, third-party intervenor, Respondent; Appellant.
    Nos. A03-837, A03-943.
    Court of Appeals of Minnesota.
    March 9, 2004.

      Daniel L.M. Kennedy, Minneapolis, MN, for Moreno and Smith.
    Jay M. Heffern, Minneapolis City Attorney, Carol Lansing, Assistant City Attorney, Minneapolis, MN, for City of Minneapolis.
    John H. Herman, D. Charles Mac-donald, Michael A. Ponto, Faegre & Benson LLP, Minneapolis, MN, for Minneapolis Institute of Arts.
    Considered and decided by HUDSON, Presiding Judge; PETERSON, Judge; and HARTEN, Judge.
   OPINION

HUDSON, Judge.

In 2002, the Minneapolis Institute of Arts (MIA) applied for an amendment to its 1973 planned unit development (PUD) in order to add a new wing. The Minneapolis City Planning Commission (planning commission) approved the MIA’s application and the MIA’s neighbors (Smith and Moreno) appealed this decision to the Minneapolis City Council. The city council heard and denied the appeal, approving the MIA’s application subject to conditions recommended by the city-planning department. The neighbors appealed this decision to the district court seeking declaratory and injunctive relief. Although not named in the original complaint, the MIA intervened and argued, by way of cross-claim against the city and counterclaim against Smith and Moreno, that its zoning application was automatically approved by operation of Minn.Stat. § 15.99 (2002). In conjunction with the parties’ cross-motions for summary judgment, the district court found that the MIA’s application was not automatically approved by operation of Minn.Stat. § 15.99. But the district court affirmed, on the merits, the city’s approval of the MIA’s application. On appeal to this court, Smith and Moreno argue that the city erred by approving the MIA’s application because the application was defective and violated Minneapolis zoning ordinances. On appeal and by notice of review, the MIA challenges the district court’s denial of its cross-claim against the city, arguing that its application was automatically approved by operation of Minn. Stat. § 15.99, and therefore Smith and Moreno are precluded from challenging the city’s action. We affirm as modified.

FACTS

The Minneapolis Institute of Arts (MIA) is a museum operated for the benefit of the general public. The original building was completed in 1915 and expanded in 1974. The building is located in Dorilus Morrison Park (the park), which was deeded to the Minneapolis Park Board in 1911. The deed had restrictions giving the Minneapolis Society of Fine Arts, the predecessor to the MIA, exclusive rights “to occupy, use, manage, and control every building erected upon said premises, whether for the purposes of a public museum, or a public gallery of art, or for a school of arts and crafts, for .an auditorium, or for any cognate purpose.... ” Other buildings located within the park are the Minneapolis College of Art and Design (MCAD) and the Children’s Theatre Company (CTC). The MCAD and the CTC hold leases from the MIA for the buildings that they occupy within the park. The leases contain provisions giving the MIA control of the leased premises.

The 1974 expansion of the MIA was authorized by a conditional use permit (CUP) for a planned unit development (PUD) that the city approved on February 23, 1973. At the time of the 1973 PUD, the entire PUD area was controlled by the Minneapolis Society of Fine Arts, which was comprised of the MIA, the MCAD, and the CTC. The institutions separated in 1988, and since that time the Minneapolis Society of Fine Arts has consisted solely of the MIA. Because the original museum expansion had been approved as a CUP for a PUD, the city determined that the MIA’s proposed new wing would require approval of an amendment to the 1973 PUD.

Minn.Stat. § 15.99 (2002) requires that zoning applications be approved or denied within 60 days, or if the deadline is properly extended by the agency, within 120 days. If an application is not denied within that time frame, it is deemed approved. The MIA submitted an application for amendment of the 1973 CUP for a PUD to add the new wing. The city considered the application complete on July 23, 2002, with a 60-day deadline of September 23, 2002. The MCAD and the CTC consented to and supported the MIA’s application for the PUD amendment.

The Minneapolis City Planning Department reviewed the MIA’s application and prepared a report recommending approval of the amendment to the PUD. At a September 9, 2002, public hearing, the planning commission approved the MIA’s application subject to the conditions recommended by the planning department.

Decisions of the planning commission are final, subject to appeal to the Minneapolis City Council and subsequent judicial review. Minneapolis city ordinances give affected parties an opportunity to appeal the planning commission’s decision to the city council within ten days of approval of an application.

On September 19, 2002, appellant Paul Smith appealed the planning commission’s approval of the MIA application to the city council. Smith’s appeal was first heard on October 1, 2002, after — according to the MIA — the September 23, 2002, expiration of the 60-day deadline. The city, however, determined that Smith’s appeal was a separate written request under MinmStat. § 15.99, triggering a new 60-day deadline. Thus, according to the city, the new time limit for deciding Smith’s appeal would end on November 18, 2002. Then, by letter dated November 8, 2002, the city informed Smith that pursuant to MinmStat. § 15.99, it was extending the new 60-day time limit to 120 days; i.e., until January 17, 2003.

The zoning and planning committee of the city council continued the October 1, 2002, hearing to October 29, 2002, where the committee forwarded Smith’s appeal to the city council without a recommendation. On November 8, 2002, the city council voted to return the appeal to the zoning and planning committee to address the issues raised in Smith’s appeal. The zoning and planning committee directed the city-planning department to prepare a supplemental report addressing Smith’s issues.

The planning department addressed Smith’s issues in a report on November 26, 2002. In the report the planning department recommended that the city council adopt the original findings of the planning commission and deny Smith’s appeal, subject to certain conditions. On November 26, 2002, the zoning and planning committee forwarded Smith’s appeal to the city council without recommendation. On December 13, 2002, the city council denied Smith’s appeal and adopted the findings of the November 26, 2002, planning department report.

On January 15, 2003, Smith and Moreno filed a complaint with the district court for declaratory and injunctive relief and sought a temporary restraining order to halt construction of the new wing. The district court issued an order on May 29, 2003:(1) granting the city’s motion for summary judgment in its entirety; (2) granting the MIA’s motion for summary judgment as to Smith and Moreno and denying its cross-claim against the city that Minn.Stat. § 15.99 automatically approved its application, and (3) denying Smith and Moreno’s motion for summary judgment in all respects. Smith and Moreno appealed to this court, and the MIA filed a notice of review and direct appeal to this court. This consolidated appeal follows.

ISSUES

I. Did the district court err in determining that an appeal to the Minneapolis City Council challenging the planning commission’s approval of a zoning application triggered a separate 60-day time limit under Minn.Stat. § 15.99 (2002)?

II. Did the automatic approval of the MIA’s zoning application by operation of Minn.Stat. § 15.99 cut off the right of appellants Smith and Moreno to appeal or otherwise challenge the city’s approval of the zoning application?

ANALYSIS

I

The MIA contends that the city council and the district court erred by determining that the MIA’s application for a PUD amendment was not approved by operation of Minn.Stat. § 15.99 (2002). The MIA contends that Smith’s appeal to the city challenging the MIA’s application was subject to the original 60-day time limit triggered by the filing of the MIA’s initial application on July 23, 2002. The MIA contends that because Smith’s appeal was not decided by the city within 60 days of that date, the MIA’s application was automatically approved by operation of Minn.Stat. § 15.99.

The city determined that the MIA’s application was not automatically approved by operation of Minn.Stat. § 15.99 because Smith’s appeal of the planning commission’s decision was a separate “written request” under Minn.Stat. § 15.99 that triggered a new 60-day time limit.

Thus, the issue before this court is whether an appeal to a municipal governing body triggers a new, separate 60-day deadline under Minn.Stat. § 15.99, or whether it is part of the original zoning request and must be decided within the original 60- to 120-day time period. This appeal's to be an issue of first impression as Minn.Stat. § 15.99 does not directly address this issue and the parties do not cite, nor have we found, case law directly on point.

We review de novo the district court’s interpretation of the law, including questions of statutory interpretation. Sorenson v. St. Paul Ramsey Med. Ctr., 457 N.W.2d 188, 190 (Minn.1990), rehearing denied (Minn. July 17,1990).

Minn.Stat. § 15.99 provides that

an agency must approve or deny within 60 days a written request relating to zoning.... Failure of an agency to deny a request within 60 days is approval of the request. If an agency denies the request, it must state in writing the reasons for the denial at the time that it denies the request.

Minn.Stat. § 15.99, subd. 2 (2002). The 60-day timetable begins to run when the agency receives a written request with all the necessary information. Id. at subd. 3. The time limit in subdivision -2 may be extended up to a total of 120 days if, before the end of the initial 60-day period, the city provides written notice of the extension to the applicant. Id. at subd. 3(f). When the city fails to adhere to the time limit, the result must be that the application was statutorily approved as a matter of law. See Gun Lake Ass’n v. County of Aitkin, 612 N.W.2d 177, 181 (Minn.App. 2000), revieiv denied (Minn. Sept. 13, 2000), Demolition Landfill Servs., LLC v. City of Duluth, 609 N.W.2d 278, 281 (Minn.App.2000), review denied (Minn. Jul. 25, 2000).

Here the MIA’s application was complete and submitted to the planning commission on July 23, 2002. Accordingly, the city was required to approve or deny the application on or before September 23, 2002, or risk automatic approval. The planning commission approved the MIA’s application on September 9, 2002 ánd the city argues that the planning commission’s approval of the MIA’s application satisfied the requirement that the city act on the application within 60 days. Smith filed his appeal of the planning commission decision on September 19, 2002. The- city considered the appeal a new written request triggering a new 60-day time limit under Minn.Stat. § 15.99. The district court agreed, finding that the planning commission was an “agency” under section 15.99 with the authority and responsibility to approve or deny a zoning request. The planning commission approved the MIA’s application on September 9, 2002, more than a week before the 60-day period expired on September 23, 2002. Thus, the district court concluded, the city complied with section 15.99.

But the MIA argues that the planning commission’s approval of the application is not an approval for purposes of Minn.Stat. § 15.99 because the planning commission is not an “agency” within the definition of Minn.Stat. § 15.99. We agree.

Minn.Stat. § 15.99, subd. 1, defines an agency as a “department, agency, board, commission, or other group in the executive branch of state government; a statutory or home rule charter city, county, town.... ” Significantly, the portion of the statute that defines a commission as an agency limits that definition to a commission within the executive branch of state government. The city planning commission was not acting as a statutory or home rule city because the planning commission is merely a level of government within the city’s governmental structure. Moreover, the planning commission’s approval of a zoning application is not the final decision of the city. Although the Minneapolis city ordinances give the planning commission the authority to approve zoning applications, final approval or denial of an application does not occur until the city council has approved or denied the application after an appeal. M.C.O. § 525.180. While it is true that in some cases the decision of the planning commission will be final because there is no challenge to its decision, if the decision is challenged, the application is not finally approved until the challenge is resolved by the city council.

Thus, we conclude that under the appeals process established in Minneapolis, a zoning application is not approved or denied for purposes of Minn.Stat. § 15.99 until the city council — not the planning commission — -has resolved all appeals challenging the application. In addition, we find persuasive the MIA’s argument that section 15.99 “establishes time deadlines for local governments to take action on zoning applications.” Am. Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn.2001) (emphasis added); Tollefson Dev., Inc. v. City of Elk River, 665 N.W.2d 554, 559 (Minn.App.2003) (holding that 60-day time period ran from date of written amendment to the zoning application ) (emphasis added), review denied (Minn. Sept. 24, 2003). By contrast, an appeal from an adverse decision is not a “request ... for a permit, license, or other governmental approval of an action” as required by section 15.99. Minn.Stat. § 15.99, subd. 2. An appeal seeks to reverse or overturn the approval of the request; it is not in itself a request for a permit, license, or approval. Thus, no new 60-day time period is triggered.

Consequently, Smith’s appeal was subject to the initial 60-day time limit triggered by the MIA’s submission of its application on July 23, 2002, and the city council was required to approve or deny the application by September 23, 2002. Here, Smith’s appeal to the city council did not result in an approval or denial of the MIA’s application within the requisite 60 days, and therefore, the MIA’s application was automatically approved by operation of Minn.Stat. § 15.99.

We recognize that automatic approval of a permit application may sometimes be a harsh, extraordinary remedy, especially where, as in this case, the city must act promptly after an internal administrative appeal. But as the MIA rightly observes, if a city has an internal process that permits appeals, then it must structure its appeal process in a manner which permits a decision by the city before the expiration of the deadline. The alternative is to risk approval by operation of section 15.99. Thus, if an internal administrative appeal is filed on day 56, as was the case here, the city can still engage in a thoughtful consideration of the appeal simply by putting in place a system that permits city officials to promptly extend the deadline an additional 60 days.

“[T]he underlying purpose of Minn.Stat. § 15.99 is to keep government agencies from taking too long in deciding issues like the one in question.” Manco of Fairmont, Inc. v. Town Bd. of Rock Dell Township, 583 N.W.2d 293, 296 (Minn.App.1998) (application for conditional use permit), review denied (Minn. Oct. 20, 1998). Although automatic approval of a permit application is an extraordinary remedy, it is a remedy that has been granted by the legislature “notwithstanding any other law to the contrary.” Minn. Stat. § 15.99, subd. 2. When a city has failed to satisfy its clear requirements, the remedy shall be granted. N. States Power Co. v. City of Mendota Heights, 646 N.W.2d 919, 925 (Minn.App.2002), review denied (Minn. Sept. 25, 2002). Accordingly, the MIA’s application was automatically approved by operation of Minn.Stat. § 15.99, and the district court erred in characterizing Smith’s appeal as a new zoning application thereby permitting a new section 15.99 time period.

II

Having determined that the MIA’s application was approved by operation of Minn.Stat. § 15.99, we turn to deciding what is properly before this,court for review on appeal.

On appeal from a quasi-judicial decision of a governmental body, appellants can challenge the decision on the grounds that it was arbitrary, oppressive, unreasonable, and fraudulent, under an erroneous theory of law or without evidentia-ry support. Molnar v. County of Carver Bd. of Comm’rs, 568 N.W.2d 177, 181 (Minn.App.1997); Horn v. City of Coon Rapids, 313 N.W.2d 409, 416-17 (Minn. 1981). A decision is unreasonable, or arbitrary and capricious whén it is “based on whim or ... devoid of articulated reasons.” Mammenga v. State Dep’t of Human Sens., 442 N.W.2d 786, 789 (Minn.1989). A court is obligated to affirm the decision if the record shows the city engaged in reasoned decision making. Cable Communications Bd. v. Nor-West Cable Communications P’ship, 356 N.W.2d 658, 669 (Minn.1984).

But in Gun Lake Ass’n v. County of Aitkin, we held that the county board’s decision on the neighbor’s appeal was compelled by statute due to the county’s failure to deny the application within the required 60 days. 612 N.W.2d 177, 182 (Minn.App.2000), revieiu denied• (Minn. Sept. 13, 2000). We explained ■ that when approval of a zoning application is compelled by Minn.Stat. § 15.99, we cannot then hold that the agency acted in an otherwise arbitrary or improper fashion. Id. at 181. Our opinion in Gun Lake did not address whether we could review challenges to a zoning application on the grounds that approval of the application was an error of law. But we are persuaded that the holding in Gun Lake is logically extended to challenges on the grounds that approval of a zoning application was an error of law. Thus, when approval of a zoning application is statutorily compelled, it cannot then be argued that approval by the city was an error of law.

Here, appellants raise several claims, all of which challenge - the city’s approval of the MIA’s ■ zoning application on the grounds- that approval of the application was arbitrary and capricious. But after carefully reviewing the record, we are convinced that only two of appellants’ claims — the parking exceptions and the setback requirements — are properly reviewed under the arbitrary and capricious standard. Because we have held that the MIA’s zoning application was approved as a result of the application of Minn.Stat. § 15.99, we are likewise compelled to hold that approval of the application with the parking and setback exceptions was not arbitrary and capricious. Gun Lake Ass’n, 612 N.W.2d at 182.

Although not characterized as such by appellants, their remaining claims challenge the approval of the application on the grounds that the approval was an error of law. In accordance with our holding that when operation of Minn.Stat. § 15.99 statutorily compels the approval of a zoning application, approval of that application cannot be an error of law, we are compelled to conclude that the city’s approval of MIA’s application was not an error of law.

DECISION

The district court erred in finding that the administrative appeal challenging the planning commission’s approval of the MIA’s zoning application triggered a new 60-day time limit under Minn.Stat. § 15.99. Thus, because the city did not act on the application within 60 days of its receipt of the application, the MIA’s application was automatically approved by operation of Minn.Stat. § 15.99 (2002). Because the application was automatically approved by operation of Minn.Stat. § 15.99, the city’s approval of the application was not arbitrary, capricious, or an error of law.

Affirmed as modified.

      . The actual 60-day deadline was September 21, 2002; but because September 21 was a Saturday, the deadline was extended to the next business day, which was September 23, 2002. See Minn. R. Civ. P. 6.01.

      . Appellant’s error of law challenges include: (1). the MIA’s failure to include all of the original PUD applicants on its zoning application in violation of M.C.O. § 527.50; (2) the MIA's failure to submit a master sign plan in violation of M.C.O. § 527.70(a); (3) the MIA’s ' PUD amendment only has one use in violation of M.C.O. § 520.160; (4) the city's authority ■ to grant exceptions to the PUD requirements is pre-empted by state statute; and (5) the city • lacked the authority to approve conditions or exceptions to the MIA’s application.


source: Caselaw Access Project

license: Public Domain

text:
    Leslie MAUDSLEY, Appellant, v. Jonathan E. PEDERSON, M.D., Respondent.
    No. A03-915.
    Court of Appeals of Minnesota.
    March 16, 2004.

      Judith L. Emmings, John W. Carey, Sie-ben, Grose, Von Holtum, & Carey, Ltd., Fairfax, MN, for appellant.
    William M. Hárt, Cecilie Morris Loidolt, Damon L. Highly, Meagher & Geer, P.L.L.P., Minneapolis, ’ MN, for respondent.
    Considered and decided by ANDERSON, Presiding Judge; STONEBURNER, Judge; and HUDSON, Judge.
   OPINION

HUDSON, Judge.

Appellant challenges the district court’s dismissal of her medical-malpractice claim against respondent. Appellant contends that respondent’s 15- to 17-hour delay in diagnosing and treating her eye infection caused her to lose vision in one eye. Respondent moved to dismiss the action pursuant to Minn.Stat. § 145.682 (2002), contending that appellant’s expert affidavit failed to detail a chain of causation. Appellant contested the motion, arguing that respondent’s motion- was untimely under Minn. R. Gen Pract. 115.03 and the court’s scheduling order and that the expert affidavit was substantively sufficient under Minn.Stat. § 145.682. The district court determined that it had the authority to hear the untimely motion and dismissed the case, finding that appellant’s expert affidavit failed to meet the substantive requirements of MinmStat. § 145.682 and Minn. R. Evid. 702. We affirm.

FACTS

In the spring of 1999, appellant Leslie Maudsley suffered from advanced glaucoma, which caused her to ' experience impaired vision in both eyes. In April 1999, Maudsley sought treatment from respondent Jonathan E. Pederson, M.D. Peder-son determined that glaucoma surgery (trabeculectomy) was necessary on both of Maudsley’s eyes to help prevent future vision loss. Trabeculectomy carries the risk of several complications, including the infection streptococcal endophthalmitis. It is undisputed that streptococcal endo-phthalmitis is an extremely virulent infection. Indicia of this infection are redness, swelling, pain, mattering or discharge, as well as decreased vision.

On May 27, 1999, Pederson performed surgery on Maudsley’s left eye; she experienced no complications from the surgery. On June 17, 1999, Pederson performed surgery on Maudsley’s right eye. Mauds-ley was scheduled for a post-operative check-up appointment on the morning of June 28. Ten days after the surgery, on June 27, 2002, Maudsley called Pederson complaining of problems with her right eye. Maudsley and Pederson agree that Maudsley told Pederson she was experiencing pain and seeing black dots — symptoms consistent with mild and normal postoperative bleeding. But the parties dispute whether Maudsley also told Pederson she was experiencing “intense pain” and an eye “hemorrhage” — symptoms consistent with infection.

Claiming that he believed Maudsley had normal post-operative symptoms, Peder-son advised Maudsley to wait and see him at her scheduled appointment the next morning, 15-17 hours later. When she attended her appointment the next morning, Pederson diagnosed the right eye as infected and sent her to a vitreoretinal specialist, who identified the infection as streptococcal endophthalmitis. Maudsley ultimately lost all vision in her right eye. Maudsley claims that the 15- to 17-hour delay in diagnosis caused her vision loss.

Maudsley filed a complaint on May 8, 2001, claiming medical malpractice. On May 31, 2002, Maudsley submitted Dr. Harvey Rosenblum’s expert affidavit. Dr. Rosenblum’s affidavit gave the following statement on causation:

It is more likely than not that if treatment had been initiated on June 27, rather than June 28, Leslie Maudsley would not have lost the vision in her right eye. She may have suffered some impairment to that vision, but she would not have lost it totally. When infections are present, it is generally true that better outcomes are the result of earlier treatment; in fact every hour counts.

After receiving Dr. Rosenblum’s affidavit, Pederson requested that Maudsley supplement the affidavit because it lacked specific information regarding causation. On June 27, 2002, Maudsley submitted an amended affidavit, which added the following sentence: “It is more likely then [sic] not that if treatment had been initiated on June 27, 1999, that Leslie Maudsley would have recovered from the infection and had the vision she had at the time surgery was performed on June 17,1999.”

On August 8, 2002, Pederson sent Maudsley a second letter stating that the amended affidavit suffered from the same deficiency regarding causation. Seven months later, in March 2003, Pederson brought a motion, identified as a “motion in limine,” to strike Maudsley’s expert affidavit as inadequate and to dismiss Mauds-ley’s claim with prejudice pursuant to Minn.Stat. § 145.682. Pederson served notice of the motion via a letter on March 27, 2003, and served motion papers on March 31, 2003. The motion was set for hearing on April 9, 2003, the scheduled date of the pretrial conference.

Maudsley filed a response to the motion on April 7, 2003, claiming that the motion was a dispositive motion and untimely under Minn. R. Gen. Pract. 115.03 and the court’s scheduling order. Maudsley also argued that the affidavit was substantively adequate under Minn.Stat. § 145.682. The court heard arguments on the motion on April 9, 2003. At the close of the hearing, the court requested that each side submit proposed findings of facts, conclusion of law, and order for judgment by April 16, 2003. On April 10, 2003, the judge’s law clerk contacted Maudsley’s attorney to inform her that the court was dismissing Maudsley’s case. Maudsley’s counsel sent a letter to the court asserting that Mauds-ley had been deprived of an opportunity to respond to “new arguments raised by our opposing attorneys, or to respond to cases provided to the court at the pretrial conference.” The judge’s clerk again contacted Maudsley’s attorney and gave her an opportunity to submit proposed findings of fact, conclusions of law, and order. Maudsley’s attorney declined to submit anything further to the district court. The district court dismissed the case on May 13, 2003. This appeal follows.

ISSUES

I. Did the district court err by hearing Pederson’s motion to dismiss pursuant to Minn.Stat. § 145.682 when Pederson failed to comply with the formal notice requirements for filing a dispositive motion?

II. Did the district court abuse its discretion by granting Pederson’s motion to dismiss pursuant to Minn.Stat. § 145.682?

ANALYSIS

I

Maudsley argues that the district court erred by granting Pederson’s motion for dismissal pursuant to Minn.Stat. § 145.682 (2002) because it was untimely under Minn. R. Gen. Pract. 115.03 and the district court’s scheduling order. Minn. R. Gen. Pract. 115.03 requires that a party file dispositive motions 28 days prior to the hearing; the district court’s scheduling order required that dispositive motions be heard at least ten days prior to the pretrial/settlement conference.

Under Minnesota law, a plaintiff who brings a medical-malpractice claim must file an affidavit that identifies (1) qualified experts who intend to testify; (2) the substance of their testimony; and (3) a summary of the basis for the experts’ opinions. Minn.Stat. § 145.682, subd. 4(a). Failure to comply with the affidavit requirements mandates that the district court, upon motion, dismiss the plaintiffs claim with prejudice. Id., subd. 6; Lind-berg v. Health Partners, Inc., 599 N.W.2d 572, 577 (Minn.1999). Absent an abuse of discretion, we will not reverse a district court’s dismissal of a suit pursuant to Minn.Stat. § 145.682. Anderson v. Rengachary, 608 N.W.2d 843, 846 (Minn.2000).

The district court acknowledged that Pederson’s motion was untimely, but relying on Lombardo v. Seydow-Weber, 529 N.W.2d 702, 705 (Minn.App.1995), review denied (Minn. Apr. 27, 1995), concluded that it had the authority to dismiss Maudsley’s claim on the merits because the mandatory dismissal of malpractice claims regulates substantive rights, which cannot be abridged, enlarged, or modified by procedural rules. The district court held that Maudsley could not use the General Rules of Practice or the scheduling order to avoid the requirements of Minn. Stat. § 145.682. The district court concluded that by failing to adequately address causation, Maudsley’s expert affidavit did not meet the requirements of Minn.Stat. § 145.682, and her claim was thereby subject to mandatory dismissal. We see no abuse of discretion in the district court’s ruling.

Here, both parties and the district court acknowledge that although the motion was labeled as a “motion in limine,” it was, in fact, a dispositive motion to dismiss, and it did not comply with the notice requirements of either Minn. R. Gen. Pract. 115.03 or the court’s pretrial/settlement conference order. But nothing in Minn.Stat. § 145.682 prevents the district court from hearing an untimely motion. And whether or not to enforce its own scheduling order is clearly within the district court’s discretion. Moreover, in the comments to Minn. R. Gen. Pract. 115, the advisory task force explained that “[t]he time limits of [the rules of general practice] may be readily modified by the court.” Minn. R. Gen. Pract. 115.03, 1997 advisory comm. note. Accordingly,’ we conclude that the district court did not err by hearing Pederson’s motion to dismiss.

We are concerned, however, about the timing of Pederson’s motion. We recognize that Minn.Stat. § 145.682 does not prescribe time limits within which motions to dismiss must be brought. But the primary purpose of the statute is to eliminate nuisance malpractice suits. Oslund v. United States, 701 F.Supp. 710, 713 (D.Minn.1988); Parker v. O’Phelan, 414 N.W.2d 534, 537 (Minn.App.1987), aff'd, 428 N.W.2d 361 (Minn.1988). Thus, the statute is designed to encourage parties to bring motions to dismiss early in the proceedings in order either to eliminate frivolous lawsuits or to give the plaintiff an opportunity to cure any defects prior to trial. Here, Pederson argues that by sending Maudsley two letters in June and August of 2002 asking her to supplement her ’expert affidavit, he gave Mauds-ley ample notice that he intended to ehal-lenge her expert affidavit, particularly since the June 17 letter indicated that Pederson would bring a motion to dismiss pursuant to Minn.Stat. § 145.682 if the affidavit was not supplemented with respect to causation. Maudsley did supplement the affidavit, but Pederson still maintained that it was inadequate. The trial was set for May 19, 2003, but Pederson did not move to dismiss the action until the pretrial conference on April 9, 2003. By not moving to dismiss the action earlier, Pederson lulled Maudsley into thinking they were going to trial, despite counsel’s letters pointing out weaknesses in the affidavit’s chain of causation. The purpose of the statute is to get rid of frivolous cases early; not to surprise plaintiffs on the eve of trial with a motion to dismiss the case. We strongly urge parties to bring these motions in a timely fashion.

II

Maudsley also contends that the district court erred by dismissing her case because her expert affidavit is substantively sufficient under Minn.Stat. § 145.682. The district court found that Maudsley’s expert affidavit failed to: (1) provide the specific details concerning the expert’s expected testimony as required by Minn. Stat. § 145.682; and (2) provide a causal link between Maudsley’s loss of vision and the defendant’s alleged delay in diagnosing streptococcal endophthalmitis.

Minn.Stat. § 145.682 was enacted by the legislature to eliminate frivolous medical-negligence lawsuits by requiring that plaintiffs file affidavits verifying that their alleged claims are well founded. Stroud v. Hennepin County Med. Ctr., 556 N.W.2d 552, 555 (Minn.1996). The supreme court has set forth a strict standard for complying with the “clause 2” affidavit (of expert identification) required under Minn.Stat. § 145.682:

In cases commencing after this opinion is filed ... we will expect a more complete disclosure.... [P]laintiffs will be expected to set forth, by affidavit or answers to interrogatories, specific details concerning their experts’ expected testimony, including the applicable standard of care, the acts or omissions that plaintiffs allege violated the standard of care and an outline of the chain of causation that allegedly resulted in damage to them.

Lindberg, 599 N.W.2d at 576 (quoting Sorenson v. St. Paid Ramsey Med. Ctr., 457 N.W.2d 188, 193 (Minn.1990)); see also Teffeteller v. Univ. of Minn., 645 N.W.2d 420, 428 (Minn.2002); Stroud, 556 N.W.2d at 555-56.

Maudsley argues that her expert affidavit contained sufficient details as to causation and was similar to the expert trial testimony admitted at trial in two cases. See Demgen v. Fairview Hosp., 621 N.W.2d 259, 263 (Minn.App.2001), review denied (Minn. Apr. 17, 2001); Blatz v. Allina Health Sys., 622 N.W.2d 376, 386-87 (Minn.App.2001). We disagree. The expert testimony in Blatz and Demgen is distinguishable from Maudsley’s expert affidavit, because the expert testimony in both of those cases included a greater level of specificity on causation. For example, in Demgen, the expert affidavit stated:

c. Had the ultrasound test been performed, it would have revealed abnormally low amniotic fluid levels (i.e., the presence of Oligohydramnios). In combination with the markedly abnormal fetal heart rate tracing, this finding would dictate the need for an immediate caesarean section.
d. In a hospital comparable to that at issue, the applicable standard of care would dictate that such an emergency caesarean section be accomplished within 53 minutes, prior to this fetus dying. The failure to have the appropriate tests completed delayed having a caesarean section performed. Failing to have the appropriate tests completed was a direct cause of the fetus’ death....
e.Had such an emergency caesarean section been timely performed, a live birth would have resulted.

621 N.W.2d at 263. Further, the expert in Blatz testified:

(a) the paramedics played a substantial part in [Blatz’s] brain injury * * * because of the delay; (b) [ejvery second is .critical because the brain, when deprived of oxygen, is extremely sensitive; (c) there’s only a certain window within which the brain must be reperfused and reoxygenated or irreversible damage will occur; (d) the period for which the brain can be without oxygen before permanent damage occurs is five minutes; (e) if persons are resuscitated within the five-minute window, the outcome is [ujsually good, without any perceptible irreversible brain damage; and (f) the longer * * * outside [the] 5-minute window resuscitation occurs, the more irreversible brain damage occurs.

622 N.W.2d at 386-87 (quotations omitted).

Here, Maudsley’s affidavit contained the following language:

Causation. ...
It is more likely than not that if treatment had been initiated on June 27, rather than June 28, Leslie Maudsley would not have lost the vision in her right eye. She may have suffered some impairment to that vision, but she would not have lost it totally. When infections are present it is generally the rule that better outcomes are the result of earlier treatment; in fact every hour counts. It is more likely then not that if treatment had been initiated on June 27, 1999 that Leslie Maudsley would have recovered from the infection and had the vision she had at the time surgery was performed on June 17,1999.

Compared with the detailed affidavits in Blatz and Demgen, the general statements in Maudsley’s affidavit are not sufficient to satisfy the strict standard for expert affidavits. The primary purpose of an expert affidavit is to illustrate “how” and “why” the alleged malpractice caused the injury. Teffeteller, 645 N.W.2d at 429 n. 4. Such detail was particularly important here, where Pederson claimed that early treatment does not typically affect the poor prognosis associated with this virulent infection. The conclusory statements that generally earlier treatment results in better outcomes and that every hour counts fail to outline specific details explaining how and why Pederson’s 15- to 17-hour delay in treatment caused Mauds-ley’s blindness. As the district court correctly noted, a delay in diagnosis is not enough; if it were, expert testimony on causation would not be necessary. See, e.g., Leubner v. Sterner, 493 N.W.2d 119, 122 (Minn.1992) (holding that something more than conclusion that delay in diagnosis “invariably results in a more serious prognosis” is needed to make out a prima facie case). Therefore, we conclude that the district court did not abuse its discretion by dismissing the case.

Because our analysis of this issue is dispositive, we do not reach whether the district court erred by excluding Mauds-ley’s expert under Minn. R. Evid. 702.

DECISION

We affirm the district court’s decision to dismiss Maudsley’s ease and conclude that the district court did not err by hearing Pederson’s motion to dismiss under Minn. Stat. § 145.682. Further, because Mauds-ley’s expert affidavit failed to set forth a detailed chain of causation explaining how and why Pederson’s delay in treatment resulted in Maudsley’s loss of vision, the district court did not abuse its discretion by dismissing Maudsley’s case with prejudice. We encourage parties to bring motions to dismiss early in the proceedings so that these cases may be resolved expeditiously.

Affirmed.

      . On May 23, 2002, Minn.Stat. § 145.682, subd. 6, was amended and now gives a plaintiff 45 days to amend an allegedly defective affidavit in order to avoid mandatory dismissal.


author: VANDE WALLE, Chief Justice. MARING, Justice,

text:
    2004 ND 37
    Richard John NESVIG, Plaintiff and Appellant, v. R. Gordon NESVIG, Defendant and Appellee.
    No. 20030041.
    Supreme Court of North Dakota.
    Feb. 25, 2004.

      Henry H. Howe, Howe & Seaworth, Grand Forks, ND, for plaintiff and appellant.
    Patrick R. Morley, Morley Law Firm, Ltd., Grand Forks, ND, for defendant and appellee.
   VANDE WALLE, Chief Justice.

[¶ 1] Richard Nesvig appealed from a judgment entered upon a jury verdict dismissing his action against Gordon Nesvig for breach of a fiduciary duty. We hold the jury instructions and special verdict erroneously limited the jury’s consideration of Richard Nesvig’s claims for legal malpractice and breach of a fiduciary duty. We reverse the judgment and remand for further proceedings.

I

[¶ 2] Richard Nesvig, a self-employed farmer living near Buxton, North Dakota, was severely injured in a 1984 automobile accident in Traill County. Gordon Nesvig, Richard Nesvig’s cousin and an attorney in Cottage Grove, Minnesota, represented Richard Nesvig in settlement negotiations with the automobile insurer and in a personal injury action against Traill County and Anderson Brothers Construction. See Nesvig v. Anderson Bros. Constr. Co., 490 N.W.2d 478 (N.D.1992). As a result of a settlement with the automobile insurer, Richard Nesvig received $235,000. Gordon Nesvig deducted attorney fees and other expenses, and, through an investment broker, deposited $175,000 of that settlement in a Franklin fund for Richard Nesvig.

[¶ 3] In the action against Traill County and Anderson Brothers, Richard Nesvig settled with Anderson Brothers for $50,000 and obtained a 1993 jury verdict of more than $900,000 against Traill County. After deductions for attorney fees and other expenses, Richard Nesvig received a net award of $611,768.18 in December 1993, and Gordon Nesvig deposited the money in a Minneapolis bank in an interest bearing money market account that listed Richard Nesvig as beneficiary and Gordon Nesvig as trustee. There was no written documentation between Gordon and Richard Nesvig regarding the deposit of the money in the interest bearing money market account.

[¶ 4] According to Richard Nesvig, he met with Gordon Nesvig in East Grand Forks in December 1993 to endorse a check for the money:

A. I don’t remember exact words, but I think that he just said that he could get me more interest in Minneapolis. So I signed the check and I signed off on a couple of other papers, whatever, and he sent the money to Minneapolis which was what I thought that we were going to do for a short time or whatever or you know.
Q. Okay, and so what was your understanding about what he was going to do with the money?
A. Well, I thought he was going to invest it somewhere down the road or give it to me or whatever, but I thought he was going to invest it somewhere where we could get some more money.
Q. Okay, and when you got the money and signed the check with Gordon in December of 1993, did you give Gordon any specific instructions on what he was to do or not to do with the money.
A. No, not at the time.
Q. What did you think was going to happen with the money, based on your contact with Gordon?
A. Well, I guess we did talk a little bit. He told me he could give me more interest in Minneapolis is why I figured I could send it down there and I figured he could sent [sic] me whatever I wanted. I did not think that there was any problem.
Q. Okay, and did you subsequently start getting statements from something like the Franklin Fund for the money that you sent down to Minneapolis with Gordon?
A. No, I did not.
Q. Okay. How did you — what was the process for you to get money from Gordon of the money that you had left with Gordon.
A. I would have to call him and call him and give him a, tell him what I wanted it for and give him — you know, he was tough. He would not just hand it out to me for any reason. I had to give him a good reason then sometimes he would give me some, other times he would not.

[¶ 5] According to Gordon Nesvig, he did not believe Richard Nesvig could manage the money and he received specific instructions from Richard Nesvig about the money:

A. Well, to summarize them, the one probably paramount instruction was that he wanted it readily available. He wanted, if he called me and he needed this money for something, he did not want to wait for it. And the second—
Q. Let’s go through this list, we will have you explain what was said.
A. All right. And the second item was that and I don’t remember which order they were, but he did not want to lose any principal.
Q. Okay, any more?
A. Third one was that he did not want to be in the stock market is the word that we used, but I took that to mean any publicly traded security where you could lose money.
Q. How about bonds?
A. It would include bonds.
Q. Any more?
A. That is as far as I can remember. Those were the three cardinal rules.

[¶ 6] Gordon Nesvig testified he did not send Richard Nesvig statements regarding the money market account, but he normally had monthly telephone conversations with him regarding money. According to Gordon Nesvig, in early 1995 he discovered the money market account was earning interest at a lower rate than expected and he informed the bank:

And then a few days or weeks later, he sent me his 1994 tax information because I did not have anything other than the 1099. He had his farm income, his Franklin fund statement, and he had his property taxes, whatever all he paid. And in that envelope is when he sent me that letter ... because he knew about the change in the bank account and that is where that thousand dollars a month — and he was really confirming that he wanted it in there. He wanted that extra thousand dollars a month, just interest.

[¶ 7] Richard Nesvig testified that, in March 1995, he sent Gordon Nesvig information for his 1994 taxes and a handwritten letter asking for a copy of his monthly statement and indicating he “would like $1,000.00 more per month when invested, just interest. Seems fair to me.” According to Richard Nesvig, he got a July 1995 statement from Gordon Nesvig, and he never got another monthly statement or $1,000.00 a month after his handwritten letter to Gordon Nesvig. According to Richard Nesvig, he was unable to get money from Gordon Nesvig when he wanted it.

[¶ 8] In November 1997, George Long-mire, on behalf of Richard Nesvig, wrote Gordon Nesvig:

Reference is made to previous correspondence and telephone conferences we have had in connection with [funds belonging to Richard Nesvig], Rick is still insisting funds belonging to him should be returned to the Norwest Bank in Hillsboro, ND.
As indicated in our initial telephone conference, he has a good relationship with a capable woman at this time. I learned recently she had had some banking experience. Further, I feel Rick has changed greatly in the two years I have had contact with him. I feel confident his wife to be and his banker can keep him soundly managing his business affairs. You and I could also keep an eye over his shoulder and prevent him from throwing away his money.
As intimated, I do not feel he needs a conservator at this time. In fact, it is felt he would fight the appointment of a conservator.
It is also felt unless his funds are returned to this state under at least partly his supervision he will have me or some other attorney commence litigation to get this accomplished. Rick requests the funds be transferred to the Norwest Bank in Hillsboro, ND. Hope you will immediately arrange for this to be done.
Am sure in view of his family relation with you, it is understood you feel some obligation to keep him from foolishly spending this money if it is returned to this jurisdiction.

[¶ 9] In July 1998, Richard Nesvig petitioned for appointment of a “limited and special conservator.” Gordon Nesvig filed a “concurrence in the need for conservator” which stated he had been acting as an “informal conservator” for Richard Nesvig since 1983 and “the portion of [Richard Nesvig’s] brain that allows him to make decisions is impaired.” Gordon Nesvig’s concurrence stated Richard Nesvig needed a conservator who would say no to most of his requests and Gordon Nesvig had intended to make different investments, but Richard Nesvig did not want any funds at risk, did not want funds tied up for extended periods of time, and had recently indicated he wanted control of his funds, and Gordon Nesvig therefore “decided to wait until the situation stabilized.” In July 1998, Norwest Bank was appointed as conservator for Richard Nesvig. In August 1998, Gordon Nesvig transferred the $548,100.88 balance in Richard Nesvig’s money market account to the conservator-ship.

[¶ 10] Richard Nesvig subsequently sued Gordon Nesvig, alleging Gordon Nes-vig breached a fiduciary duty to Richard Nesvig by investing his money in the money market account instead of some other prudent investment. A jury returned a special verdict finding there was no agreement between Richard and Gordon Nesvig to invest the money in something other than the money market account, and Gordon Nesvig acted in good faith in failing to return money to Richard Nesvig.

II

[¶ 11] Richard Nesvig argues on appeal to this Court that the trial court erred in including a good faith defense in the special verdict form, because good faith is not a defense to a professional malpractice action. He argues Gordon Nesvig had a duty as an attorney and a fiduciary to properly advise him regarding management of the money. Richard Nesvig claims Gordon Nesvig assumed control over the money as a fiduciary and had a duty to invest the money under the prudent investor rule. Richard Nesvig claims he sustained $335,650 in damages because Gordon Nesvig failed to prudently invest the money. Gordon Nesvig responds the issue in this case was not legal malpractice, but whether he followed N.D.R. Prof. Conduct 1.15 in holding and distributing the money as requested by Richard Nesvig and whether there was an agreement between Richard and Gordon Nesvig to invest the money in something other than the money market account. Gordon Nesvig argues good faith was a proper element for the jury to consider under N.D.R. Prof. Conduct 1.15.

[¶ 12] Jury instructions must correctly and adequately inform the jury of the applicable law and must not mislead or confuse the jury. Rittenour v. Gibson, 2003 ND 14, ¶ 15, 656 N.W.2d 691. We review jury instructions as a whole to determine their correctness. Id. Instructions will be allowed if, as a whole, they advise a jury of the law on essential issues in the case. Id. Special verdict forms are governed by N.D.R.Civ.P. 49(a), and a trial court has broad discretion over the nature and scope of written questions submitted to the jury. Victory Park Apartments, Inc. v. Axelson, 367 N.W.2d 155, 165 (N.D.1985). Although we review a trial court’s use of a special verdict under the abuse-of-discretion standard, a court’s exercise of discretion is necessarily based on the evidence presented and the issues involved in the case. Id.

[¶ 13] The trial court instructed the jury on (1) responsibility for conduct, see N.D.J.I. — Civil 2.01, (2) Richard Nesvig’s burden to prove by the greater weight of the evidence that Gordon Nesvig breached a professional standard of care or a fiduciary duty and that the breach proximately caused damages, (3) the elements of a legal negligence and a breach of fiduciary duty claim, see N.D.J.I. — Civil 15.00, (4) a lawyer’s standard of care, see N.D.J.I. — Civil 15.15, (5) a lawyer’s obligation to “abide by a client’s decisions concerning the objectives of representation, and, where appropriate, consult with the client as to the means by which they are to be pursued,” and (6) there was “no exception to, or reduction in, the duty owed by a fiduciary because of any family relationship.” The court instructed the jury on fiduciary duty:

It is undisputed that a fiduciary relationship exits in an attorney-client relationship. It is also undisputed that a trustee has a fiduciary relationship with the property owner.
If you find there was an agreement between Richard John Nesvig and R. Gordon Nesvig to invest the funds in something other than a money market account than [sic] R. Gordon Nesvig is deemed a trustee.

The court instructed the jury that a “trustee” shall invest and manage trust assets under the “prudent investor rule” and hindsight did not determine a trustee’s compliance with the prudent investor rule.

[¶ 14] In language tracking N.D.R. Prof. Conduct 1.15(a) and (b), the court also instructed the jury on safekeeping-property:

A lawyer is required by law to hold the property of a client that is in the lawyer’s possession in connection with a representation separate from the lawyer’s own property. A lawyer holding money of a client is required to deposit such funds in an interest-bearing trust account in a bank, trust company, saving and loan association, or credit union in an account in which withdrawals or transfers can be made by the depositing attorney without delay.
Upon receiving, in connection with a representation, funds or other property in which a client has an interest, a lawyer shall promptly notify the client. Unless an agreement has been reached with the client, a lawyer shall promptly deliver to the client any funds the client is entitled to receive and, upon request by the client, shall promptly render a full accounting regarding such funds.

The special verdict and the jury’s answers provided:

We, the jury duly impaneled and sworn in the above matter, make the following answers to the questions asked by the court:
1. Did R. Gordon Nesvig fail to return all or some of the funds to Richard John Nesvig when requested to do so by Richard?
ANSWER: Yes Z No_
2. If your answer to Question No. 1 is “Yes”, was R. Gordon Nesvig acting in good faith when he failed to return the funds?
ANSWER: Yes Z No_
3. Was there an agreement between Richard John Nesvig and R. Gordon Nesvig to invest the funds in something other than a money market account?
ANSWER: Yes_NoZ
(If your answer to Question No. 1 and No. 2 is “Yes”, and your answer to No. 3 is “No”, or if your answer to Question No. 2 is “Yes”, and your answer to No. 3 is “No”, then do not answer questions 4-7. In this case, the foreperson shall sign the verdict and notify the bailiff.)

As a result of the jury’s answers to questions one through three, the jury did not answer questions four through seven relating to proximate cause, damages, and interest.

[¶ 15] Gordon Nesvig does not dispute that good faith is not a defense to a legal malpractice case. Although he claims this is not a legal malpractice case, he perhaps incongruously argues the trial court correctly included the good faith inquiry in the special verdict because that inquiry is authorized by his interpretation of a rule of professional conduct for attorneys, N.D.R. Prof. Conduct 1.15.

[¶ 16] We have said the actual nature of the subject matter of an action determines whether it is a legal malpractice case. Johnson v. Haugland, 303 N.W.2d 533, 538 (N.D.1981). We have defined malpractice as a “failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result that injury, loss, or damage to the recipient of those services or to those entitled to rely upon them.” Johnson, at 538 (citing Webster’s Third New International Dictionary (Unabridged 1971)). In Johnson, at 538, in the context of considering a statute of limitations issue, we looked at the essence of a complaint against an attorney and his law firm, and we said the allegations involved conduct in the framework of an attorney-client relationship during the course of prior litigation, which involved an alleged breach of a professional duty and a failure to inform the client of a conflict in interest. We concluded the actual nature of the subject matter of the action was legal malpractice. Id. at 538-39. In Sime v. Tvenge Assoc. Architects & Planners, P.C., 488 N.W.2d 606, 610 (N.D.1992), we said malpractice refers to actions where a fact-finder must evaluate the reasonableness of a defendant’s conduct in light of the special knowledge and skill the defendant is presumed to have as a member of the profession.

[¶ 17] Richard Nesvig’s complaint alleged Gordon Nesvig represented Richard Nesvig in prior litigation that resulted in a net award to him of $611,768.18, and based upon Gordon Nesvig’s representations that he would properly invest, safeguard, and manage the money, Richard Nesvig permitted Gordon Nesvig to retain control of the money. Richard Nesvig alleged Gordon Nesvig solicited and accepted a fiduciary relationship and had a duty to prudently and responsibly invest the entrusted funds. Richard Nesvig testified he “thought [Gordon Nesvig] was going to invest [the money] somewhere down the road or give it to me or whatever, but I thought he was going to invest it somewhere where we could get some more money.” Attorney James Coles, Richard Nesvig’s expert, testified at trial about Gordon Nesvig’s obligation:

the basic obligation is you should not take any action that would harm your client and that would include financial harm. And, also, you have an obligation as an attorney and we have to remember they also call us attorneys and counselors at law. There is a reason for that. People look to attorneys for advice and I think there is a strong obligation to look at these funds. And as I understand it, the information that I have tells me that basically this was money from a personal injury suit and that Richard was injured to the extent that future employment was questionable. So we are looking at a sum of money that basically is the money that would have to survive him for whatever his life is, whatever his life expectancy is and what and where that money has got to go. And so I think the attorney has to fulfill his obligation, has a strong obligation to make some inquiry or be informed as to where this money is going to go and to at least advise or assist the client as to what has to be done to accomplish that goal of having lifetime assets for support. And quite frankly, the attorney, you know, does not have the expertise for that to say how you do this, but the attorney has the obligation to say you need to find out how to do this. Maybe the attorney becomes a facilitator, but that certainly is part of the obligation to give advice that the client can then say, okay, this is what you need to do. You need to talk to an investment person or someone else that can tell you where you need to be so that these funds will survive your lifetime.

[¶ 18] The essence of Richard Nesvig’s action is that he entrusted the net proceeds of his recovery in prior litigation to his attorney to properly invest, safeguard, and manage, and his attorney had an obligation to properly advise him. We conclude his action is in professional malpractice and breach of a fiduciary duty to properly advise.

[¶ 19] The trial court’s instructions about fiduciary duty and safekeeping property and the special verdict effectively limited the jury’s inquiry to whether Gordon Nesvig acted in good faith in failing to return the money to Richard Nesvig and whether there was an agreement between Richard and Gordon Nesvig to invest the money in something other than the money market account. However, an attorney who undertakes to manage or invest a client’s money assumes broader responsibilities than merely establishing an agreement with the client and acting in good faith regarding return of the money.

[¶ 20] An attorney must employ the degree of skill, care, diligence, and knowledge commonly possessed and exercised by a reasonable, careful, and prudent lawyer, see Wastvedt v. Vaaler, 430 N.W.2d 561, 565 (N.D.1988), and an honest belief, or good faith, is not a defense in a malpractice action. Olson v. Fraase, 421 N.W.2d 820, 830 (N.D.1988). See Cosgrove v. Grimes, 774 S.W.2d 662, 664-65 (Tex.1989) (holding subjective good faith is not defense to legal malpractice action). See generally 3 R. Mallen & J. Smith, Legal Malpractice § 19.8, at page 112-13 (5th ed.2000). An attorney-client relationship is a fiduciary relationship. See Meyer v. Maus, 2001 ND 87, ¶¶ 14-15, 626 N.W.2d 281. A fiduciary relationship is “ ‘something approximating business agency, professional relationship, or family tie impelling or inducing the trusting party to relax the care and vigilance ... ordinarily exereise[d].’ ” Matter of Estate of Lutz, 1997 ND 82, ¶32, 563 N.W.2d 90, (quoting Asleson v. West Branch Land Co., 311 N.W.2d 533, 539 (N.D.1981)). In a fiduciary relationship, the superior party has a duty to act in the dependent party’s best interest. Lutz, at ¶ 32. A fiduciary relationship exists when one is under a duty to act for, or to give advice for the benefit of another upon matters within the scope of the relationship. Id. at ¶ 32, (citing Restatement (Second) of Torts § 874, cm. a (1979)). One leading commentator explains that, in various contexts, an attorney may undertake to manage or invest a client’s property, and in doing so, the attorney not only must conform to the applicable standard of care and comply with fiduciary obligations, but also may assume the responsibilities of a trustee. 3 R. Mallen & J. Smith at § 25.4. Although an attorney and a client may reach an agreement about the client’s funds, an attorney has an obligation as a reasonable, careful, and prudent lawyer to adequately advise the client before the agreement is reached. See Wastvedt, 430 N.W.2d at 566.

[¶ 21] We reject Gordon Nesvig’s claim that this case is about the narrow and limited issue of holding the funds under his interpretation of N.D.R. Prof. Conduct 1.15. That rule deals with safekeeping money in an interest bearing trust account in subdivisions (a) through (c) and authorizes and outlines a lawyer’s responsibilities for interest bearing trust accounts either for the benefit of clients, or for benefit of the North Dakota Bar Foundation in subdivisions (d) through (f). .The official comment to N.D.R. Prof. Conduct 1.15 provides, in part:

The determination of whether funds of a client or third person could be invested to provide a positive net return to the client, rests in the sound judgment of each lawyer or law firm. No charge of ethical impropriety or other breach of professional conduct shall attend a lawyer’s exercise of sound judgment if the lawyer acts in good faith.

[¶ 22] The North Dakota Rules of Professional Conduct were adopted by this Court effective January 1, 1988, as the result of a study of the A.B.A. Model Rules of Professional Conduct by a Professional Conduct Subcommittee of this Court’s Attorney Standards Committee. See Minutes of Professional Conduct Subcommittee of Attorney Standards Comm. 2 (Sept. 16, 1983). The A.B.A. Model Rules of Professional Conduct do not include provisions corresponding to N.D.R. Prof. Conduct (d) through (g), or the quoted language from the official comment. As originally submitted to this Court by the Attorney Standards Committee, proposed N.D.R. Prof. Conduct 1.15 did not include the current subdivisions (d) through (g) and the quoted language from the official comment. See North Dakota Rules of Professional Conduct, Supreme Court Docket Number 11437 (filed on September 12, 1986). Subdivisions (d) through (g) and the quoted language in the official comment were proposed after the 1986 North Dakota State Bar Association meeting and a September 6, 1986 meeting of the State Bar Association Board of Governors “to establish a mandatory IOLTA program in North Dakota.” See September 22, 1986 letter from John E. Widdel, Jr., President of State Bar Association of North Dakota to Chief Justice Ralph J. Erickstad in Supreme Court Docket Number 11437. Rule 1.15 N.D.R. Prof. Conduct was adopted effective January 1, 1988 with the language in subdivisions (d) through (g) and the good faith language in the official comment. Under N.D.R. Prof. Conduct 1.15(d)(1) and (2), a lawyer must deposit a client’s funds in an interest bearing trust account so the interest will benefit either the North Dakota Bar Foundation, or the client, and the lawyer’s decision to place funds in either type of account is governed by factors in N.D.R. Prof. Conduct 1.15(d)(3). The history and language of N.D.R. Prof. Conduct 1.15 support a conclusion that the reference to good faith in the comment establishes a standard for a lawyer’s decision to deposit money in either a client account or an IOLTA account, see N.D.R. Prof. Conduct 1.15(d), and does not establish a good faith defense for returning a client’s money or advising the client.

[¶23] Our rules of professional conduct are designed to provide guidance to lawyers and a structure for regulating conduct through disciplinary agencies, and they are not intended to be a basis for civil liability. See Preamble, Scope, and Terms to N.D.R. Prof. Conduct. In Disciplinary Board v. McKechnie, 2003 ND 22, ¶ 16, 656 N.W.2d 661, we said disciplinary proceedings differ significantly from malpractice actions, and although the rules of professional conduct set a minimal level of conduct for disciplinary actions, malpractice liability is premised upon the conduct of a reasonable lawyer under the circumstances. See also Olson, 421 N.W.2d at 828; Martinson Bros. v. Hjellum, 359 N.W.2d 865, 875 (N.D.1985); Matter of Jaynes, 267 N.W.2d 782, 784 (N.D.1978). We thus reject Gordon Nesvig’s claim that N.D.R. Prof. Conduct 1.15 establishes a good faith defense for returning a client’s money. Rather, an attorney must employ the degree of skill, care, diligence and knowledge commonly possessed and exercised by a reasonable, careful, and prudent lawyer, see Wastvedt, 430 N.W.2d at 565, and, as a fiduciary, an attorney must provide advice for the benefit of another upon matters within the scope of the relationship. Lutz, 1997 ND 82, ¶ 32, 563 N.W.2d 90. Although an attorney and a client may reach an agreement about the client’s funds, the attorney has an obligation as a reasonable, careful, and prudent lawyer to adequately advise the client. See Wastvedt, 430 N.W.2d at 566.

[¶ 24] We conclude the instructions and the special verdict erroneously limited the jury’s inquiry to whether Gordon Nesvig acted in good faith in failing to return the money to Richard Nesvig and whether there was an agreement to invest the money in something other than a money market account without appropriate consideration of an attorney’s obligation to provide advice appropriate for the situation. We conclude those instructions did not correctly and adequately inform the jury about the applicable law on essential issues of the case, and a new trial is required. We decline Richard Nesvig’s request to rule, as a matter of law, Gordon Nesvig breached a professional duty to Richard Nesvig and that the breach was the proximate cause of $335,650 in damages to Richard Nesvig. We also reject Richard Nesvig’s claim for attorney fees.

Ill

[¶ 25] We reverse the judgment dismissing Richard Nesvig’s action against Gordon Nesvig, and we remand for proceedings consistent with the opinion.

[¶ 26]CAROL RONNING KAPSNER, DALE V. SANDSTROM and WILLIAM A. NEUMANN, JJ., concur.

MARING, Justice,

concurring in the result.

[¶ 27] I concur in the result. I agree with the majority opinion that the instructions and the special verdict erroneously permitted the jury to consider a good-faith defense for returning a client’s money. I also agree this action is one for professional malpractice and the prudent investor rule does not apply. I write separately because I am concerned that the majority opinion does not clearly set forth the law applicable to legal malpractice. The elements of a legal malpractice claim for negligence are the existence of an attorney-client relationship, a duty to the client, a breach of that duty by the attorney, and damages to the client proximately caused by breach of that duty. Wastvedt v. Vaaler, 430 N.W.2d 561, 564-65 (N.D.1988); Larson v. Norkot Mfg., Inc., 2002 ND 175, ¶ 10, 653 N.W.2d 33 (quotation omitted). The verdict form in the present case should ask whether there was an attorney-client relationship at all times relevant; whether the attorney committed legal malpractice by either (1) providing negligent advice or (2) failing to return the client’s money upon request; and whether the attorney’s negligence proximately caused damage to the client and, if so, in what amount. Conceivably the client’s fault could be compared to the attorney’s fault if there is evidence of such, i.e., disregard for the advice of the attorney. Wastvedt, at 564. It is fundamental that “before an attorney’s advice or conduct can be the proximate cause of damage, the [client] must establish that the advice or conduct falls below the applicable standard of care and constitutes therefore a breach of duty.” Id. at 565. “The standard of care or duty to which an attorney is held in the performance of professional services is that degree of skill, care, diligence, and knowledge commonly possessed and exercised by a reasonable, careful, and prudent lawyer in the practice of law in the state.” Id. We have said that, generally, expert testimony is necessary to establish the standard of care and whether an attorney deviated from that standard of care. Id. If the attorney’s conduct is so egregious and obvious that a layperson can evaluate the breach of duty, then there is an exception to the requirement of expert testimony. Id. “It is well established that an attorney is liable for all losses caused by his failure to follow with reasonable promptness and care the lawful instructions of his client.” Olson v. Fraase, 421 N.W.2d 820, 829 (N.D.1988).

[¶ 28] It is based on this law that the case should be tried on remand. I, therefore, respectfully concur in the result.

[¶ 29] Mary Muehlen Maring


author: MARING, Justice.

text:
    2004 ND 48
    STATE of North Dakota, Plaintiff and Appellee, v. Zachary BERGSTROM, Defendant and Appellant.
    No. 20030160.
    Supreme Court of North Dakota.
    Feb. 27, 2004.

      Susan Schmidt (submitted on brief), Severin Ringsak & Morrow, Bismarck, N.D., for defendant and appellant.
    Cynthia Mae Feland (submitted on brief), Assistant State’s Attorney, Bismarck, N.D., for plaintiff and appellee.
   MARING, Justice.

[¶ 1] Zachary Bergstrom appeals from a judgment entered upon a jury verdict finding him guilty of Possession of Drug Paraphernalia in violation of- N.D.C.C. § 19-03.4-03. We affirm.

I

[¶ 2] On September 19, 2001, the State appeared before Judge Gail Hagerty to obtain a search warrant for Bergstrom’s residence. At the beginning of the hearing to obtain the search warrant, Judge Hagerty stated, “I have an application for a search warrant seeking permission to search the residence of Zachary Berg-strom at 618 North 3rd Street, Bismarck.” Detective Paul Olson testified under oath to provide probable cause for the search warrant. He testified an individual named David Mayne told him Bergstrom was involved in drug activity and to many details this individual gave to support the accusation.

[¶ 3] When attempting to begin the search, it was discovered 618 North 3rd Street, Bismarck, North Dakota, consisted of two apartments. The State appeared a second time before Judge Hagerty to obtain a second warrant for the correct apartment, number one. The second search warrant for Bergstrom’s residence correctly listed 618 North 3rd Street, # 1, Bismarck, North Dakota, as the place to be searched. The warrant listed methamphetamine, marijuana, owe sheets, scales, drug paraphernalia, 9mm handgun, and a safe as the things to be seized. The search ultimately encompassed Berg-strom’s residence, two vehicles, and a storage facility unit.

[¶ 4] In September 2001, Bergstrom was charged, by information, with one count of Possession with Intent to Deliver Marijuana, one count of Possession with Intent to Deliver Methamphetamine, one count of Delivery of Marijuana, one count of Delivery of Methamphetamine, one count of Possession of Drug Paraphernalia, and one count of a Felon in Possession of a Firearm. Bergstrom pled not guilty to all charges. The two delivery charges were dismissed due to the unavailability of a State witness. The Felon in Possession of a Firearm charge was dismissed as the result of referral to the United States Attorney’s office for further prosecution.

[¶ 5] The trial court delayed the trial date twice. The State requested the first continuance because the Assistant State’s Attorney assigned to the case had a scheduled vacation during the dates set for trial. The State requested the second continuance because its main witness was at the FBI training academy and the crime lab analyst was subpoenaed for another trial during the dates set for trial. The trial court denied the State’s third motion for a continuance.

[¶ 6] On January 8, 2003, approximately 400 days after pre-trial motions were due, Bergstrom moved to suppress evidence obtained in the searches, arguing Detective Olson did not testify to Berg-strom’s exact address but referred only to his “residence.” He also argued that the search of one of the vehicles was not a valid probation search. The trial court denied Bergstrom’s motion to suppress.

[¶ 7] On May 27, 2003, Bergstrom moved to dismiss the case for lack of a speedy trial, arguing that it was unconscionable that more than two years had elapsed since he was arrested. The trial court denied the motion on June 2, 2003, and on June 4-5, 2003, a jury trial was conducted on one count of Possession with Intent to Deliver Marijuana, one count of Possession with Intent to Deliver Methamphetamine, and one count of Possession of Drug Paraphernalia.

[¶ 8] The jury found Bergstrom guilty of Possession of Drug Paraphernalia and not guilty of the two charges of Possession with Intent to Deliver. The judge entered judgment upon the jury verdict on June 5, 2003. Bergstrom appeals the judgment upon the jury verdict finding him guilty of possession of drug paraphernalia in violation of N.D.C.C. § 19-03.4-03.

II

[¶ 9] On appeal, Bergstrom argues the evidence discovered while conducting the searches should have been suppressed because Detective Olson’s sworn testimony did not specifically state the address to be searched and, therefore, was not supported by probable cause. We disagree.

[¶ 10] The standard of review for the denial of a suppression motion is well established in North Dakota:

[W]e defer to the district court’s findings of fact and resolve conflicts in testimony in favor of affirmance. We affirm the district court’s decision unless, after resolving conflicting evidence in favor of affirmance, we conclude there is insufficient competent evidence to support the decision, or unless the decision goes against the manifest weight of the evidence. That standard of review recognizes the importance of the trial court’s opportunity to observe the witnesses and assess their credibility, and we accord great deference to its decision in suppression matters. Questions of law are fully reviewable.

State v. Matthews, 2003 ND 108, ¶ 8, 665 N.W.2d 28 (internal citations and quotations omitted).

[¶ 11] The Fourth Amendment of the United States Constitution, made applicable to the states by the Fourteenth Amendment, and Article I, section 8, of the North Dakota Constitution, protect individuals from unreasonable searches and seizures. The Fourth Amendment of the United States Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

U.S. Const, amend. IV; see also N.D. Const, art. I, § 8.

[¶ 12] In this case, the first search warrant obtained by the State listed the address to be searched as 618 North 3rd Street, Bismarck, North Dakota. When it was discovered that the residence actually consisted of two apartments, the State obtained a second search warrant specifically listing the address to be searched as 618 North 3rd Street, # 1, Bismarck, North Dakota. Both warrants listed methamphetamine, marijuana, owe sheets, scales, drug paraphernalia, 9mm handgun, and a safe as the things to be seized. Both warrants also stated Judge Hagerty was satisfied there was probable cause to believe the property listed was being concealed at the address listed.

[¶ 13] On appeal, Bergstrom argues the warrant was not valid because Detective Olson never testified under oath to the exact address, but referred only to Berg-strom’s “residence.” However, at the beginning of the hearing on the request for a search warrant, Judge Hagerty stated, “I have an application for a search warrant seeking permission to search the residence of Zachary Bergstrom at 618 North 3rd Street, Bismarck.” Detective Olson testified under oath at the hearing for the second search warrant that the correct address was apartment number one. Therefore, we conclude the search warrant was valid, and the trial court’s denial of Bergstrom’s motion to suppress was supported by competent evidence and was not against the manifest weight of the evidence.

Ill

[¶ 14] Bergstrom argues he did not receive a speedy trial, guaranteed by the Sixth Amendment of the United States Constitution; Article I, section 12, of the North Dakota Constitution; and N.D.C.C. § 29-01-06(5). We disagree.

[¶ 15] In State v. Erickson, 241 N.W.2d 854, 859 (N.D.1976), this Court adopted the United States Supreme Court balancing test announced in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), which is used to evaluate the validity of a speedy trial claim under the United States Constitution, and now, the North Dakota Constitution, and the North Dakota statute. N.D.C.C. § 29-01-06(5). The test requires balancing four factors: length of the delay, reason for the delay, proper assertion of the right, and actual prejudice to the accused. State v. Murchison, 541 N.W.2d 435, 438 (N.D.1995) (citing Barker, 407 U.S. at 531-33, 92 S.Ct. 2182). In Barker v. Wingo, the Supreme Court of the United States held:

We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process. But, because we are dealing with a fundamental right of the accused, this process must be carried out with full recognition that the accused’s interest in a speedy trial is specifically affirmed in the Constitution.

Barker, 407 U.S. at 533, 92 S.Ct. 2182 (footnote omitted); see also State v. Johnson, 1999 ND 33, ¶21, 590 N.W.2d 192.

[¶ 16] On appeal, Bergstrom argues the delay of more than two years before his trial “continued far too long because of the State’s requests for continuances.” The delay of over two years in this case weighs in favor of Bergstrom. This length of delay should never be the norm, and trial judges should be diligent in preventing the length of delay in a case such as this. However, the length of delay does not control our analysis, it is merely one of four factors for this Court to balance. Murchison, 541 N.W.2d at 439 (quoting State v. Wunderlich, 338 N.W.2d 658, 661 (N.D.1983)).

[¶ 17] Closely related to the length of delay is the reason for delay. Bergstrom argues that the reasons for delay are mostly attributable to the State, but admits in his brief on appeal that his changes in counsel could excuse some of the delay. See Murchison, 541 N.W.2d at 439 (stating that a new attorney request is relevant to a speedy trial claim). The State moved for three continuances in this case. The trial court rescheduled the trial and granted the State’s motion for a continuance due to the Assistant State’s Attorney’s scheduled vacation during the new trial dates. The trial court granted a second motion for a continuance because the State’s main witness was at the FBI training academy and the crime lab analyst was subpoenaed for another trial on the new dates set for trial. The trial court denied the State’s third motion for a continuance.

[¶ 18] This Court has stated it is relevant whether the State purposefully delayed the trial. Murchison, 541 N.W.2d at 439. Here, there is no evidence the State purposefully delayed the trial. The court rescheduled the trial twice. The delay due to the Assistant State’s Attorney’s vacation is attributable to the State action, but the delay due to the unavailability of the State’s main witness and crime lab analyst would not be. See Barker, 407 U.S. at 531, 92 S.Ct. 2182 (stating that a missing witness can serve as a valid reason to justify an appropriate delay of trial). However, Bergstrom moved to suppress evidence obtained in the searches approximately 400 days after pre-trial motions were due, causing delay. See Murchison, 541 N.W.2d at 439 (stating that motions initiated by the defendant are relevant when determining whether a defendant’s speedy trial rights were violated).

[¶ 19] In his brief on appeal, Berg-strom addresses only the first two factors of the Barker v. Wingo balancing test. We have repeatedly held that a “party raising a constitutional challenge should bring up the heavy artillery or forego the attack entirely.” State v. Backlund, 2003 ND 184, ¶ 38, 672 N.W.2d 431 (quotation omitted). Bergstrom failed to address whether he properly asserted his right to a speedy trial. More importantly, Berg-strom failed to allege any prejudice to him due to the delay. Further, his entire argument regarding a violation of his speedy trial rights under the United States Constitution, the North Dakota Constitution, and the North Dakota statute, is only two paragraphs in length. Although we are concerned by the length of delay in this case, Bergstrom has not brought up the heavy artillery and has not satisfied this Court that his speedy trial rights were violated by the delay in bringing his case to trial.

[¶ 20] We conclude Bergstrom was not denied his right to a speedy trial under the Sixth Amendment of the United States Constitution; Article I, section 12, of the North Dakota Constitution; or N.D.C.C. § 29-01-06(5).

IV

[¶ 21] We affirm the judgment entered upon the jury verdict finding Bergstrom guilty of Possession of Drug Paraphernalia in violation of N.D.C.C. § 19-03.4-03.

[¶ 22] DOUGLAS L. MATTSON, D.J., GERALD W. VANDE WALLE, C.J., WILLIAM A. NEUMANN and CAROL RONNING KAPSNER, JJ„ concur.

[¶ 23] The Honorable DOUGLAS L. MATTSON, D.J., sitting in place of SANDSTROM, J., disqualified.