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Antone v. Mirviss

April 12, 2005

RICHARD ANTONE, APPELLANT,
v.
ISRAEL MIRVISS, RESPONDENT.



Hennepin County District Court File No. MP 03-20404.

Considered and decided by Shumaker, Presiding Judge; Dietzen, Judge; and Crippen, Judge.*fn1

SYLLABUS BY THE COURT

1. A rule 12.02 motion to dismiss an action is deemed to be a motion for summary judgment if matters outside the pleadings are submitted and not excluded by the district court.

2. A cause of action accrues for purposes of applying the statute of limitations when the cause of action is able to survive a motion to dismiss for failure to state a claim.

3. A cause of action will survive a motion to dismiss only if at least "some" ascertainable damages have occurred, even if not all damages are known or determinable.

4. In a legal malpractice action based on an allegation that a lawyer was negligent in preparing an antenuptial agreement and thus failed to prevent a former spouse from obtaining property that was to be protected by the agreement, the requisite damages do not occur until the district court awards such property to the former spouse.

5. The term "some" damage means damages that are fixed and ascertainable and not merely hypothetical or potential.

The opinion of the court was delivered by: Gordon W. Shumaker, Judge

Reversed and remanded

Dissenting, Dietzen, Judge

OPINION

Appellant-client appeals the district court's dismissal of his legal malpractice action against respondent-attorney, contending that the district court erred when it held that the statute of limitations began to run when appellant and his former spouse got married in reliance on an antenuptial agreement respondent prepared and that appellant's action was commenced after the limitations period expired.

FACTS

This is a legal malpractice action in which appellant Richard Antone claims he sustained damages because his attorney, respondent Israel Mirviss, improperly drafted an antenuptial agreement that Antone and his former spouse entered. The district court ruled that the statute of limitations had expired before Antone commenced suit and granted Mirviss's motion to dismiss the action. Antone contends the district court erred as a matter of law.

As Antone prepared to marry for a second time, he consulted attorney Mirviss about how he might prevent his spouse from obtaining certain of his assets if he died or if the parties dissolved their marriage. Antone alleges that Mirviss advised that an antenuptial agreement would be the proper protective instrument and that Mirviss promised to draft an agreement "so that, in the event of marriage dissolution, Antone's fiancée would not benefit from any appreciation that occurred relative to Antone's premarital assets/properties."

Mirviss drafted an antenuptial agreement that both parties signed after consulting with their respective attorneys. The agreement disclosed the parties' assets and provided for a limitation on spousal maintenance in the event of a marriage dissolution, but it was silent as to property rights upon dissolution.

The parties married on December 21, 1986, one day after they signed the antenuptial agreement. Antone commenced a marriage dissolution proceeding nearly 12 years later, on September 25, 1998. He alleges that during the pendency of the dissolution he discovered for the first time that the antenuptial agreement did not address the division of the parties' assets and did not prevent his spouse from obtaining assets that Mirviss allegedly promised to protect.

On November 9, 2000, the district court entered judgment of dissolution, ruling that the antenuptial agreement did not affect the court's authority to order a property division that would include assets Antone alleged were to have been covered by the agreement. Nevertheless, the district court awarded all of the appreciated value of such assets to Antone. Ultimately, the supreme court remanded the issue to the district court, stating: "We hold as a matter of law that a portion of the market-related appreciation during the marriage is marital property." Antone v. Antone, 645 N.W.2d 96, 103 (Minn. 2002). The supreme court's directive to the district court on remand was to determine the portion of the appreciated value Antone's former spouse was entitled to receive. The district court entered its amended judgment awarding a portion of that value on January 3, 2003.

Premised on theories of negligence, breach of fiduciary duty, and breach of contract, Antone started this action against Mirviss on September 11, 2003. Mirviss moved to dismiss the suit, arguing that the statute of limitations had expired before September 11, 2003. The district court agreed; ruled that the statute began to run on the date the parties married, about ...


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