                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2012).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A14-0912

                              Carroll A. Britton, et al.,
                                    Appellants,

                                         vs.

                                Harry Hohman, et al.,
                                    Respondents.

                              Filed December 29, 2014
                                     Affirmed
                                   Larkin, Judge

                             Swift County District Court
                              File No. 76-CV-13-553


Belvin L. Doebbert, Doebbert Law Offices, Glenwood, Minnesota (for appellants)

Kay N. Hunt, Keith J. Broady, Lommen Abdo Cole King & Stageberg PA, Minneapolis,
Minnesota (for respondents)


      Considered and decided by Peterson, Presiding Judge; Larkin, Judge; and

Klaphake, Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

LARKIN, Judge

       Appellants challenge the district court’s judgment dismissing their legal-

malpractice complaint against respondents under Minn. R. Civ. P. 12.02(e) and 12.03.

We affirm.

                                          FACTS

       This appeal stems from appellants Carroll A. Britton and Harold B. Kail’s 1 legal-

malpractice action against respondents Harry Hohman and Harry Hohman Law Firm Ltd.

Respondents represented appellants in a partition action in district court. In that action,

Alicia Garatoni and Glenwood Investment Properties LLC, petitioned the district court

for partition of land that was the subject of contracts for deed between appellants, as

vendors, and Garatoni and Glenwood, as vendees. The district court issued an initial

order granting partition and appointing referees to make recommendations regarding

division of the property. After the referees submitted their report, the district court issued

a second order confirming the report and dividing the property according to the referees’

recommendations.

       In an earlier appeal, this court concluded that it lacked jurisdiction to consider

whether the district court’s initial order granting partition was proper, because appellants

did not timely appeal that order. Glenwood Inv. Props., L.L.C. v. Carroll A. Britton

Family Trust, 765 N.W.2d 112, 116-17 (Minn. App. 2009). We therefore limited our


1
  Britton and Kail appear both in their individual capacities and as parties to various
trusts.

                                              2
review to the district court’s second order confirming the referees’ report and dividing the

property according to the referees’ recommendations, and we affirmed that order. Id. at

117-18.

       Appellants sued respondents for legal malpractice based on respondents’

representation of appellants in the partition action, including respondents’ failure to

timely appeal the initial order granting partition. Respondents moved to dismiss for

failure to state a claim under Minn. R. Civ. P. 12.02(e) and for judgment on the pleadings

under Minn. R. Civ. P. 12.03. The district court granted the motion and entered judgment

dismissing appellants’ complaint with prejudice. This appeal follows.

                                      DECISION

       Minn. R. Civ. P. 12.02(e) allows a party to assert by motion the defense of “failure

to state a claim upon which relief can be granted.” “A rule 12.02(e) motion raises the

single question of whether the complaint states a claim upon which relief can be

granted.” Martens v. Minn. Mining & Mfg. Co., 616 N.W.2d 732, 739 (Minn. 2000). “A

claim is sufficient against a motion to dismiss for failure to state a claim if it is possible

on any evidence which might be produced, consistent with the pleader’s theory, to grant

the relief demanded.” Walsh v. U.S. Bank, N.A., 851 N.W.2d 598, 603 (Minn. 2014).

“To state it another way, under this rule a pleading will be dismissed only if it appears to

a certainty that no facts, which could be introduced consistent with the pleading, exist

which would support granting the relief demanded.” N. States Power Co. v. Franklin,

265 Minn. 391, 395, 122 N.W.2d 26, 29 (1963).




                                              3
       Minn. R. Civ. P. 12.03 provides that any party may move for judgment on the

pleadings “[a]fter the pleadings are closed.” The standard for relief under rule 12.03 is

similar to the standard under rule 12.02(e): “To withstand a motion for judgment on the

pleadings, [a plaintiff] must state facts that, if proven, would support a colorable claim

and entitle it to relief.” Midwest Pipe Insulation, Inc. v. MD Mech., Inc., 771 N.W.2d 28,

31 (Minn. 2009). “When a case is dismissed . . . for failure to state a claim for which

relief can be granted, [an appellate court] review[s] the legal sufficiency of the claim de

novo to determine whether the complaint sets forth a legally sufficient claim for relief.”

Graphic Commc’ns Local 1B Health & Welfare Fund A v. CVS Caremark Corp., 850

N.W.2d 682, 692 (Minn. 2014).

       The district court concluded that appellants failed to state a legal-malpractice

claim on which relief could be granted and that respondents were therefore entitled to

judgment on the pleadings. The district court noted that the elements of legal malpractice

are “(1) the existence of an attorney-client relationship; (2) acts constituting negligence or

breach of contract; (3) that such acts were the proximate cause of the plaintiff’s damage;

and (4) that but for defendant’s conduct, the plaintiff would have been successful in the

prosecution or defense of the action.” Jerry’s Enters., Inc. v. Larkin, Hoffman, Daly &

Lindgren, Ltd., 711 N.W.2d 811, 816 (Minn. 2006) (quotation omitted). The district

court assumed that appellants’ complaint established the first three elements and focused

its analysis on the fourth element.

       As to the fourth, “but for,” element the district court reasoned that the negligence

underlying appellants’ legal-malpractice claim was based, in part, on respondents’ failure


                                              4
to challenge Garatoni and Glenwood’s standing to seek partition as contract-for-deed

vendees.2 The district court stated that the issue was “whether partition was appropriate

as between a vendor . . . and a vendee . . . in a contract for deed and in a sense, whether

[the] vendee had standing to bring a partition action.” The district court noted that

“[p]artition is available when there is common ownership in property” and that “for

purposes of the partition statute, [common ownership] may be based on either legal or

equitable title.” The district court concluded that “[g]iven Garatoni and Glenwood’s

considerable equitable interest that was vested,” it could not find “that the Court of

Appeals would have reversed the district court had [appellants timely] appealed.”

Essentially, the district court reasoned that appellants could not establish the but-for

element of a legal-malpractice claim because they could not establish that they would

have been successful in their appeal and that they therefore failed to state a claim on

which relief could be granted.

       Even though the district court’s rule-12 ruling was based on its legal conclusion

that Garatoni and Glenwood had standing to seek partition, appellants do not address the

merits of that conclusion in this appeal.3 Instead, they argue that the district court

improperly applied rule 12, imposed an “impossible standard” of proving what the

outcome of their appeal would have been, and erroneously relied on federal caselaw.


2
  Appellants’ complaint alleged other failures, but their appellate brief only addresses
respondents’ failure to challenge standing. We therefore limit our analysis to that issue.
3
  Because appellants have not argued that the district court’s legal conclusion regarding
standing is erroneous, we do not address the merits of that conclusion. Melina v.
Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (“This issue was not argued in the briefs and
accordingly must be deemed waived.”).

                                            5
They frame their arguments as constitutional, asserting that the district court applied a

standard that violated their rights “to a certain remedy in the laws,” “to obtain justice,”

and to due process under the Minnesota Constitution. See Minn. Const. art. 1, §§ 7, 8.

       None of appellants’ arguments is persuasive. First, caselaw supports the district

court’s application of rule 12. In Minnesota Mining, the resolution of a defendant’s rule-

12.02(e) motion depended on the existence of a unilateral contract. 616 N.W.2d at 738-

39. The supreme court noted that the existence of a unilateral contract is an issue of law

to be resolved by the court. Id. at 740. It concluded that the plaintiff could not establish

the existence of a unilateral contract under existing caselaw. Id. at 745-46. Based on that

legal conclusion, the supreme court ordered that the plaintiff’s lawsuit be dismissed with

prejudice for failure to state a claim on which relief could be granted. Id. at 748.

       Here, resolution of respondents’ rule-12 motion depended on whether appellants

would have been successful in the defense of the partition action but for respondents’

alleged negligence. See Jerry’s Enters., Inc., 711 N.W.2d at 816. Because the alleged

negligence is respondents’ failure to challenge Garatoni and Glenwood’s standing to

request partition, in order to meet the but-for element, appellants must show that Garatoni

and Glenwood lacked standing. Like the existence of a unilateral contract in Minnesota

Mining, standing is a question of law to be resolved by the court. See Schiff v. Griffin,

639 N.W.2d 56, 59 (Minn. App. 2002) (“Whether a party has standing to sue is a

question of law, which we review de novo.”). The district court concluded that Garatoni

and Glenwood had standing based on their vested equitable interests as contract-for-deed

vendees. Having reached that dispositive legal conclusion, the district court properly


                                              6
ordered that appellants’ lawsuit be dismissed for failure to state a claim on which relief

could be granted. See Minn. Mining & Mfg. Co., 616 N.W.2d at 748.

       Second, the district court did not impose an “impossible standard.” To obtain

relief on their legal-malpractice claim, appellants had to show that but for respondents’

conduct, they would have been successful in defending the partition action. See Jerry’s

Enters., Inc., 711 N.W.2d at 816. In this case, the relevant facts are undisputed and the

but-for factor turns completely on a question of law: whether Garatoni and Glenwood

had standing to seek partition. The district court based its rule-12 ruling on its legal

conclusion that Garatoni and Glenwood had standing and that this court would not have

reached a contrary conclusion had there been a timely appeal.            The district court’s

approach reflects proper analysis of the but-for element: given that element, the district

court had to assess whether this court would have resolved the standing issue in

appellants’ favor on appeal.

       Third, the district court’s citation to Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127

S. Ct. 1955 (2007), is not reversible error. Twombly held that a complaint must contain

“enough facts to state a claim to relief that is plausible on its face.” Id. at 570, 127 S. Ct.

at 1974. Our supreme court recently declined to adopt the Twombly standard. See Walsh,

851 N.W.2d at 603 (rejecting the Twombly “plausibility standard” in favor of

Minnesota’s traditional interpretation of Minn. R. Civ. P. 8.01).

       Although the district court recited the Twombly standard in its supporting

memorandum, application of that standard was not necessary to the district court’s

analysis. Given the but-for element of appellants’ legal-malpractice claim, the district


                                              7
court had to assess appellants’ likelihood of success on appeal, regardless of the Twombly

standard.   Because the Twombly standard was not necessary to the district court’s

analysis, the district court’s reliance on that standard does not provide a basis for relief.

See Minn. R. Civ. P. 61 (providing that harmless error is to be disregarded); Katz v. Katz,

408 N.W.2d 835, 839 (Minn. 1987) (“[Appellate courts] will not reverse a correct

decision simply because it is based on incorrect reasons.”). Appellants’ constitutional

arguments, which are based on the district court’s application of the Twombly standard,

therefore fail.

       In conclusion, because the district court properly applied rule 12 and appellants do

not challenge the merits of the district court’s legal determination regarding the

dispositive standing issue, we affirm.

       Affirmed.




                                             8
