Id . at 643 (citing Dalton , 280 Minn. at 154, 158 N.W.2d at 585 ). This court reached the same conclusion on similar facts in Grimm v. O'Connor , 392 N.W.2d 40, 43 (Minn. App. 1986). In Grimm , this court held that an attorney-malpractice cause of action accrued when an attorney failed to inform his clients, real property sellers, that they were signing a new contract for deed that did not include a clause limiting their exposure to rising interest rates, when such a clause had been included in a previous contract for deed.
Minnesota courts recognize that a right of action accrues and the statue begins to run when damage occurs. Grimm v. O'Connor, 392 N.W.2d 40, 43 (Minn.Ct.App. 1986); May v. First Nat'l Bank 427 N.W.2d 285 (Minn.Ct.App. 1988); Sabes Richman, Inc. v. Muenzer, 431 N.W.2d 916, 917 (Minn.Ct.App. 1988). Sabes, 431 N.W.2d at 917.
"Some damage" occurs on the date that the client takes action pursuant to an attorney's negligent advice. See, e.g., Herrmann, 590 N.W.2d at 643-44 (cause of action accrued when, pursuant to attorney's faulty advice, clients engaged in prohibited transaction resulting in tax liability); Thiele v. Stich, 425 N.W.2d 580, 583-84 (Minn. 1988) (cause of action accrued when dissolution decree was entered which lacked terms as a result of attorney's faulty advice); Grimm v. O'Connor, 392 N.W.2d 40, 43 (Minn. App. 1986) (cause of action accrued when client first signed the contract for deed that lacked an interest escalation provision as a result of attorney's faulty advice). A legal malpractice cause of action accrues anew each time that the client acts upon negligent advice provided by the attorney.
This court has addressed the issue of when the statute of limitations begins to run on a legal malpractice claim. In Grimm v. O'Connor, 392 N.W.2d 40 (Minn.Ct.App. 1986), respondent was hired as appellants' attorney to execute a contract for deed. Appellants claimed they did not read the contract before signing it in 1973, but assumed it contained a refinancing clause stipulated to previously.
The statute of limitations begins to run when the cause of action comes into being, "even though the ultimate damage is unknown or unpredictable." Grimm v. O'Connor, 392 N.W.2d 40, 43 (Minn.App. 1986) (quotation omitted). In Grimm, this court affirmed the district court's conclusion that the appellants were damaged "as soon as they executed" a contract for deed, not when they discovered nine years later that a refinancing clause had been omitted.
First, where the plaintiffs alleged that their attorney was negligent in negotiating the settlement of a real estate claim that eliminated an interest escalator clause from their contract for deed, this court concluded that the cause of action accrued when the contract for deed was executed. Grimm v. O'Connor, 392 N.W.2d 40, 42, 43 (Minn.App. 1986). This court rejected the plaintiffs' contention that their claim did not accrue until they refinanced the property at a higher interest rate nine years after the contract was executed; the court reasoned that a contract for deed "has an ascertainable market value" that was affected immediately upon its execution by the absence of the interest escalator clause.
In addition, "[t]he statute of limitations begins to run when the cause of action comes into being `even though the ultimate damage is unknown or unpredictable.'" Grimm v. O'Connor, 392 N.W.2d 40, 43 (Minn.App. 1986) (quoting Dalton v. Dow Chem. Co., 280 Minn. 147, 154, 158 N.W.2d 580, 585 (1968)). Generally, "fraudulent concealment and a plaintiff's due diligence are questions of fact unsuited for summary judgment."
Dalton v. Dow Chemical Co., 280 Minn. 147, 154, 158 N.W.2d 580, 585 (1968), cited with approval in Offerdahl v. University of Minnesota Hospitals and Clinics, 426 N.W.2d 425, 429 (Minn. 1988). See also Grimm v. O'Connor, 392 N.W.2d 40 (Minn.Ct.App. 1986). The trial court granted summary judgment because the action was not commenced within the statute of limitations.
Bonhiver v. Graff, 311 Minn. 111, 117, 248 N.W.2d 291, 296 (1976). We recently addressed the issue of when a cause of action for legal malpractice accrues in Grimm v. O'Connor, 392 N.W.2d 40 (Minn.Ct.App. 1986). There, the attorney represented the Grimms in negotiating a contract for deed which was signed in 1973.
On appeal from a summary judgment it is the function of an appellate court only to determine (1) whether there are any genuine issues of material fact and (2) whether the trial court erred in its application of the law. Grimm v. O'Connor, 392 N.W.2d 40, 43 (Minn.Ct.App. 1986) (quoting Betlach v. Wayzata Condominium, 281 N.W.2d 328, 330 (Minn. 1979)).