*1 conclusory made a existing parties. It rights jeopar- that its. will be statement

dized, specific facts or reasons gave no but why. suggestion is no that Willmsen

There Farm, insurer, vigor- State will not and his ously against appellant’s claims defend liability damage stand- both from presented that would point. No facts were finding appellants’ rights are permit a that being existing party. protected not subroga- preserved Farm Bureau has its rights tion under There has Schmidt. Willmsen, showing as an been isting adequately represent party, will not limiting interest in

Farm Bureau’s asserted liability. The tri- potential underinsurance concluding inter- al court did not err party Bureau as defend- vention Farm inappropriate is under the circumstanc- ant es. EMMINGS, AND

CAREY LTD., Respondent, LUDOWESE, Eugene Appeals of Gislason, Dosland, Moeller, A.

William Malecki, Ulm, Hunter & New *2 484 Wilson, III, McLagan exper- had the Gayle Gau- trial court found Bennett

Thomas Firm, Edina, appel- testify for tise to and that it would be within mer, Wilson Law duty by lawyer the realm of owed to client lant. pursue expert. such an based on considered, Heard, and decided presented by expert, assertions HUSPENI, P.J., and FOLEY summary judgment first motion was de- KALITOWSKI, JJ. nied. motion, appellant had After denial of the photogrammetrist photos. aerial a review KALITOWSKI, Judge. Drawings approximately were made of one- sum- from the trial court’s Appeal arises boundary line. A of the half a respondent on mary judgment favor boundary line was not able to be drawn attorney fees and dismissal claim for trees in all the because was obscured attorney mal- appellant’s counterclaim photographs. Respondent for sum- moved practice. mary judgment and the trial a second time granted the motion. FACTS began an action originally This ISSUES by respondent against attorney fees represented appel- appellant. Respondent granting court err in 1. Did boundary dispute trespass lant in a summary judgment in favor of Ludowese). action, (Schaufler v. depositions, pleadings, where the answers interrogatories, file and admissions on Eugene Ludowese Schaufler and Edward genuine any show there is no issue as to neighboring Appellant farmers. Lu- material fact? destroyed fence which had been dowese property and boundary line between his denying 2. Did the trial court err approximately years; Schaufler’s for attorney counterclaim for mal- boundary dispute this led to a between practice to establish failed them. conduct, that but for against appel- A was entered in the un- lant would have been successful Subsequently, respondent sent a bill derlying claim? check and he returned a Later, he the full amount of the bill. ANALYSIS on check and the stopped payment appeal summary judgment, from On attorney fees resulted. present action for reviewing court to it is the function of the se, initially acting pro Appellant, counter- any are issues of determine whether there alleging attorney malpractice and the trial court material fact and whether $234,962.80. damages He claimed re- application erred in its of the law. Betlach wrong in the spondent venued the case Condominium, 281 N.W.2d Wayzata county, to raise the claim of adverse failed (Minn.1979) (citing Minneapolis, to hire a possession and failed Mercury- St.P. & S.S.M.R. Co. v. St. Paul pert location. to establish Co., Minn. 129 N.W.2d 777 Ind. brought a first motion for claiming appellant prima establish a facie case order to to indicate any failed to introduce legal malpractice, appellant must estab- could determined with be following lish the factors: any certainty. (1) attorney-client re- the existence of an Appellant responded an affidavit of with lationship; indicating, opinion, McLagan Clinton (2) negligently or in attorney acted properly identify photogrammetrist could contract; breach of the where the line had been.

(3) proximate presented by those acts were the cause appellant’s expert again damages; of the client’s failed to establish the entire fence line. (4) conduct, but for the client would have been successful The trial court did not err

underlying claim. *3 respondent summary judgment and dis- Otto, Togstad Vesely, Keefe, Miller & missing appellant’s counterclaim for attor- 686, (Minn.1980) 291 N.W.2d (citing ney malpractice. Saliterman, Christy v. 288 Minn. N.W.2d 288 The first factor is not at issue. The FOLEY, Judge (concurring specially). parties concede the existence of the attor- I concur the result reached here but ney-client relationship. obliged feel to comment on the propriety of factors, In addressing ap- the final three original judge the trial voluntarily submit- pellant argues negli- was ting an affidavit to respondent in gent by failing expert to hire an to estab- this In reaching decision, matter. our the photographs lish the fence line from aerial played part; it was not con- by failing to assert a claim of adverse By filing sidered. affidavit to possession. The trial court found that al- respondent, original the judge trial took on though possession a claim of may adverse the role of an engaged advocate and to, specifically not have been referred pure speculation as to he how would have indirectly appellant was asserted when ruled if certain evidence had been sub- the was the old fence line mitted to him at underlying the action—a and that he was entitled to all of the land dispute. up to it. the court reasoned the Appellant had no opportunity reasonable necessarily considered the Schaufler elements of adverse to judge’s deposition take the or to meet possession. affidavit, the matters contained in his nor In respondent’s motion for could he. We compelled reject any to summary judgment the trial court found consideration of the matters contained in appellant produced has not evidence to Having voluntarily affidavit. sub-

prove appellant would have succeeded affidavit, mitted an it is abundantly clear underlying claim but for subpoena that no necessary was to obtain alleged malpractice. making In this find yet, impartial- affidavit and to maintain ing the trial court relied on an affidavit ity independence and the judiciary, original judge. from the trial agree We appropriate procedure is the in cases concurring opinion with the regarding judge appear where it is for a appropriateness However, of the affidavit. Jud.Conduct, a witness. Minn.Code Can- affidavit, without reference to the 1, 3(c)(1) (1974). ons clearly record shows failure to by original The affidavit submitted prevail in underlying action was not trial profound had a effect on the caused conduct. judge granting mo- trial, prevail To at needed clear tion as is evident from the memorandum convincing that the fence line filed in of the order. However could have been determined. original judge may Theros v. well motivated the trial (Minn. Phillips, been, 256 N.W.2d judges 858-59 he have and all are reminded 1977)(citations omitted). However, the tri- of Canon 2 of the Minnesota Code of Judi- al court in Conduct, found part: de- cial which states “He Schaufler stroyed only proof actually prestige what had should not lend the of his office to been the property between the private advance the interests of others * * years for 27 way Jud.Conduct, and there was Minn.Code Canon accurately reconstructing 2(B). extensive, where the fence There is an well-annotated mapping had been. this action the subject article on the aof as a wit- him. not on trial before ness in a cause Annotation, Judge as Witness

See Him, Á.L.R. Not on Trial Cause Before (1978). 3d 633 appearance in the sub- judge as witness presiding, he was not sequent perilous- appellant, was prejudicial if not being so. Were it not ly close to can be resolved with- that this matter fact origi- affidavit of the reference to the out compelled judge, we would be nal *4 circum- special reverse. There were necessitating stances dent, should have been

submitted. Scheide,

Philip Scheide, N. Lofs- Smith & trom, P.A., Eagan, petitioner, respon- Erickson, Er- Marriage Gregory Lange, Casey, L. J. In re Bonita Petitioner, Brainerd, GIBSON, Respondent, Charpentier, ickson & BAXTER, Timothy J. decided Considered and HUSPENI, P.J., and SCHUMACHER JJ., STONE,* without oral Appeals argument. 17, 1989.

STONE, Judge.

BRUCE C. L. Bonita Gibson commenced registered proceeding under the Revised Reciprocal Sup-

Uniform Enforcement (RURESA), port seeking Act enforcement of the Nebraska ex-husband, required decree her Baxter, pay appellant Timothy J. child court, Nebras- support. applying The trial law, $26,600.32 required pay ka Baxter arrearages and in child interest. ordered Baxter to con- court also couple’s pay child tinue 19, Ne- youngest child until child turns age majority. braska’s * VI, pursuant Acting Appeals by ap- pointment § art. to Minn.Const. of the Court of