Kozal v. Snyder , 312 Neb. 208 ( 2022 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/26/2022 12:06 PM CDT
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
KOZAL V. SNYDER
Cite as 312 Neb. 208Stuart Kozal, doing business as Jumping
Eagle Inn et al., appellants, v.
Andrew W. Snyder and Chaloupka,
Holyoke, Snyder, Chaloupka &
Longoria P.C. L.L.O., appellees.
___ N.W.2d ___
Filed August 12, 2022. No. S-21-377.
1. Summary Judgment: Appeal and Error. An appellate court will affirm
a lower court’s grant of summary judgment if the pleadings and admit-
ted evidence show that there is no genuine issue as to any material facts
or as to the ultimate inferences that may be drawn from the facts and
that the moving party is entitled to judgment as a matter of law.
2. ____: ____. In reviewing the grant of a motion for summary judgment,
an appellate court views the evidence in the light most favorable to the
party against whom the judgment was granted, giving that party the
benefit of all reasonable inferences deducible from the evidence.
3. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court resolves the questions independently of the lower court’s
conclusion.
4. Malpractice: Attorney and Client: Negligence: Proof: Proximate
Cause: Damages. To prevail on a claim for legal malpractice, a plaintiff
must prove (1) the attorney’s employment, (2) the attorney’s neglect of
a reasonable duty, and (3) that such negligence resulted in and was the
proximate cause of loss to the client.
5. Malpractice: Attorney and Client. In a legal malpractice action, the
required standard of conduct or general rule regarding an attorney’s
reasonable duty to his or her client is that the attorney, by accepting
employment to give legal advice or to render other legal services,
impliedly agrees to exercise such skill, diligence, and knowledge as that
commonly possessed by attorneys acting in similar circumstances.
6. Attorney and Client. To the extent there is an issue as to what the law
was and whether the attorney correctly advised on such law is a question
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KOZAL V. SNYDER
Cite as 312 Neb. 208of law for the court. If the court decides that an attorney’s conduct or
advice did not comport with the substance of the law at the time it was
given, then whether the attorney’s specific conduct in that particular
case fell below what the attorney’s specific conduct should have been is
a question of fact.
7. Attorneys at Law: Liability: Appeal and Error. An attorney is not
liable for an error in judgment on a point of law which has not been
settled by an appellate court and on which reasonable doubt may be
entertained by well‑informed lawyers, because an attorney has no duty
to accurately predict the future course of unsettled law.
8. Statutes: Appeal and Error. An appellate court will not resort to
interpretation to ascertain the meaning of statutory words that are plain,
direct, and unambiguous.
9. Statutes: Legislature: Intent. When a statutory term is reasonably con-
sidered ambiguous, a court may examine the legislative history of the
act in question to ascertain the intent of the Legislature.
10. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not needed to adjudicate the controversy before it.
11. Attorney and Client. Attorneys cannot be placed in the position of
having to accept direction from clients on intricate interpretations of
the correct or current state of the law. The attorney, not the client, is
the individual trained to interpret the law. An attorney should not be
required to compromise a reasoned judgment by having to factor into
the judgment the client’s reasoning on a fine point of law.
12. Summary Judgment. In the summary judgment context, a fact is mate-
rial only if it would affect the outcome of the case.
13. Malpractice. Statements or admissions characterized as mistakes or
errors do not necessarily mean that a standard of care has been violated.
Appeal from the District Court for Sheridan County: Travis
P. O’Gorman, Judge. Affirmed.
Jason M. Bruno, Diana J. Vogt, Robert S. Sherrets, and
Thomas G. Schumacher, of Sherrets, Bruno & Vogt, L.L.C.,
for appellants.
Steven W. Olsen and Amy N. Leininger, of Simmons Olsen
Law Firm, P.C., L.L.O., for appellees.
Heavican, C.J., Miller‑Lerman, Cassel, Stacy, Funke,
and Papik, JJ.
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KOZAL V. SNYDER
Cite as 312 Neb. 208Heavican, C.J.
I. INTRODUCTION
Appellants, various liquor stores in Whiteclay, Nebraska,
sought to renew multiple liquor licenses in 2017. The cause
was eventually appealed to this court, where we determined
that because citizen objectors were not named as parties to
the appeal from the decision of the Nebraska Liquor Control
Commission (NLCC), we did not have jurisdiction to hear
the appeal.
Appellants pursued a legal malpractice action against their
counsel, appellees. The district court granted appellees’ motion
for summary judgment, stating that appellees did not breach
their duty of care. Appellants appealed the district court’s
decision. This court granted appellants’ petition to bypass
the Nebraska Court of Appeals and moved this appeal to our
docket. We affirm.
II. FACTUAL BACKGROUND
Stuart Kozal, doing business as Jumping Eagle Inn;
Arrowhead Inn, Inc., doing business as Arrowhead Inn; Jason
Schwarting; Clay Brehmer; Daniel Brehmer, doing business
as State Line Liquor; Douglas Sanford, Steve Sanford, and
Sanford Holdings, L.L.C., doing business as D & S Pioneer
Service (collectively appellants), operated convenience and
retail stores in Whiteclay. Appellants retained attorney Andrew
Snyder (individually Snyder) and the law firm of Chaloupka,
Holyoke, Snyder, Chaloupka & Longoria P.C. L.L.O. (collec-
tively appellees), to secure renewal of their liquor licenses for
the 2017‑18 year.
For the first time in 2017, the NLCC required appellants to
submit a long‑form renewal application to keep their liquor
licenses, rather than allowing the shorthand automatic online
renewal that had been previously granted as a matter of course.
Appellants filed such applications, and several citizen objectors
opposed them.
When the NLCC held a hearing on the renewal applica-
tions in 2017, the citizen objectors acted, and were treated,
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KOZAL V. SNYDER
Cite as 312 Neb. 208as parties in the proceedings before the NLCC. Appellees and
legal counsel for the citizen objectors were both copied on the
NLCC’s order denying the liquor license applications.
On April 25, 2017, appellees appealed the NLCC’s decision
on behalf of appellants in the Lancaster County District Court.
Appellees did not name any of the citizen objectors as parties
to the appellate proceedings. The Lancaster County District
Court thereafter vacated the NLCC’s decision, concluding that
the NLCC’s decision was arbitrary and unreasonable, exceeded
NLCC’s statutory authority, and was contrary to Nebraska
statutes and prior rulings of the Nebraska Supreme Court. The
district court ordered the NLCC to honor the renewal of appel-
lants’ liquor licenses.
The NLCC and the citizen objectors appealed the district
court’s decision. In Kozal v. Nebraska Liquor Control Comm.
(Kozal I) 1 this court vacated the district court’s decision and
dismissed the challenge to the NLCC decision. In Kozal I, we
determined that this court lacked jurisdiction to hear the appeal
because the citizen objectors were not named as parties to the
appellate proceedings as required under Nebraska law.
The day our opinion in Kozal I was released, Snyder sent
an email to appellants informing them of the result, citing his
own “error in not including ‘all parties’ in the appeal,” stating
that “[o]bviously, this is my fault,” and including contact infor-
mation for his malpractice carrier. On April 5, 2019, appel-
lants filed a legal malpractice action against appellees in the
Sheridan County District Court.
On November 14, 2019, appellants filed a motion for par-
tial summary judgment against appellees, contending that no
expert testimony was necessary because appellees’ malpractice
was obvious because Snyder admitted his error in writing. On
January 27, 2020, the district court denied appellants’ first
motion for summary judgment.
1
Kozal v. Nebraska Liquor Control Comm., 297 Neb. 938, 902 N.W.2d 147(2017).
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Cite as 312 Neb. 208On November 12, 2020, appellees filed a motion for sum-
mary judgment, contending that they did not breach any duty
of care to appellants. On January 26, 2021, appellants filed
a motion for partial summary judgment, arguing that appel-
lees breached their duty of care by failing to name the citizen
objectors as parties to the appellate proceedings and by failing
to advise appellants of the consequences of failing to name the
citizen objectors if appellees thought the issue was unsettled.
In April 2021, the district court issued an order denying
appellants’ motion for partial summary judgment and granting
appellees’ motion for summary judgment. The district court
found that it was a question of law whether appellees breached
a duty of care in an area of unsettled law and that appellees
ultimately did not breach this duty.
Appellants appealed from the district court’s order and peti-
tioned this court to bypass the Court of Appeals. We granted
appellants’ petition to bypass, and this case was thereafter
moved to our docket.
III. ASSIGNMENTS OF ERROR
On appeal, appellants assign that the district court erred
in (1) concluding that, as a matter of law, appellees did not
breach the applicable standard of care; (2) granting summary
judgment to appellees; and (3) denying appellants’ motion for
partial summary judgment.
IV. STANDARD OF REVIEW
[1] An appellate court will affirm a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter
of law. 2
[2] In reviewing the grant of a motion for summary judg-
ment, an appellate court views the evidence in the light most
2
Guinn v. Murray, 286 Neb. 584, 837 N.W.2d 805 (2013).
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Cite as 312 Neb. 208favorable to the party against whom the judgment was granted,
giving that party the benefit of all reasonable inferences deduc-
ible from the evidence. 3
[3] When reviewing questions of law, an appellate court
resolves the questions independently of the lower court’s
conclusion. 4
V. ANALYSIS
1. Standard of Care
[4] To prevail on a claim for legal malpractice, a plaintiff
must prove (1) the attorney’s employment, (2) the attorney’s
neglect of a reasonable duty, and (3) that such negligence
resulted in and was the proximate cause of loss to the client. 5
The parties do not dispute that Snyder was a licensed attorney
practicing in the State of Nebraska, nor do they dispute that
Snyder was hired by appellants to assist in the renewal of
their liquor licenses for the 2017‑18 year. Thus, we focus on
whether Snyder neglected a reasonable duty.
[5] In a legal malpractice action, the required standard of
conduct or general rule regarding an attorney’s reasonable duty
to his or her client is that the attorney, by accepting employ-
ment to give legal advice or to render other legal services,
impliedly agrees to exercise such skill, diligence, and knowl-
edge as that commonly possessed by attorneys acting in similar
circumstances. 6
(a) Questions of Law and
Questions of Fact
Appellants assign that the district court erred in granting
appellees’ motion for summary judgment and finding that
3
Ecker v. E & A Consulting Group, 302 Neb. 578, 924 N.W.2d 671 (2019).
4
State v. Jackson, 296 Neb. 31, 892 N.W.2d 67 (2017).
5
See Young v. Govier & Milone, 286 Neb. 224, 835 N.W.2d 684 (2013).
6
See Boyle v. Welsh, 256 Neb. 118, 589 N.W.2d 118 (1999). See, also,
Wolski v. Wandel, 275 Neb. 266, 746 N.W.2d 143 (2008); Bellino v.
McGrath North, 274 Neb. 130, 738 N.W.2d 434 (2007).
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Cite as 312 Neb. 208appellees did not breach the applicable standard of care as a
matter of law. Appellants further assert that the district court
erroneously engaged in an analysis of both questions of law
and questions of fact, ultimately drawing conclusions of fact
that it was not authorized to make.
[6] In Guinn v. Murray, this court previously clarified what
issues in a legal malpractice action are questions of law for the
court and what issues are questions of fact for the fact finder. 7
To the extent there is an issue as to what the law was and
whether the attorney correctly advised on such law is a ques-
tion of law for the court. 8 If the court decides that an attorney’s
conduct or advice did not comport with the substance of the
law at the time it was given, then whether the attorney’s spe-
cific conduct in that particular case fell below what the attor-
ney’s specific conduct should have been is a question of fact. 9
Said differently, it is a question of fact whether the attorney’s
conduct, under the particular circumstances of the case, was
such that the attorney exercised the same skill, diligence, and
knowledge as that commonly possessed by attorneys acting in
similar circumstances. 10
Accordingly, whether Snyder’s conduct or advice was in
conformity with the law at the time it was given is a legal
question for the court. If Snyder’s conduct or advice was not
in conformity with the law, then the question of whether such
conduct or advice was negligent is a fact issue for the jury.
If Snyder’s conduct or advice was not erroneous as a matter
of law, further analysis regarding the factual determination of
whether Snyder’s conduct was negligent is unnecessary.
(b) Unsettled Area of Law
[7] In order to determine whether an attorney’s conduct was
in conformity with the law, the court may consider whether
7
See Guinn v. Murray, supra note 2.
8
Id.
9
Id.
10
See, id.; Wolski v. Wandel, supra note 6.
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KOZAL V. SNYDER
Cite as 312 Neb. 208the issue was previously unsettled. In Wood v. McGrath,
North, 11 we stated that an attorney is not liable for an error
in judgment on a point of law which has not been settled by
an appellate court and on which reasonable doubt may be
entertained by well‑informed lawyers, because an attorney has
no duty to accurately predict the future course of unsettled
law. This immunity rule encourages practicing attorneys in
this state to predict, in a professional manner, the outcome of
legal issues relevant to their clients’ cases. 12 Hence, if the law
regarding citizen objectors as parties to an appeal was unsettled
in Nebraska or a matter of first impression, then Snyder’s judg-
ment on the matter would be immune from suit.
Appellants contend that the district court should have con-
cluded that Snyder was professionally negligent as a matter
of law because Snyder admitted he did not name the citizen
objectors as parties on appeal, and appellants further contend
that the issue of naming citizen objectors was a settled area
of law. By contrast, appellees contend, and the district court
found, that this was an unsettled, complicated issue of first
impression.
A review of the record indicates that the law regarding
citizen objectors in this context was indeed unsettled. In
Kozal I, 13 we noted that the Administrative Procedure Act
(APA), 14 specifically § 84‑917, requires that a petitioner name
all “parties of record” in the agency proceedings as parties to
the proceeding for review. Because the APA did not provide
guidance for when a nonagency party is a “party of record,”
we next looked in Kozal I to the Nebraska Liquor Control
Act (NLCA). 15
11
Wood v. McGrath, North, 256 Neb. 109, 589 N.W.2d 103 (1999).
12
Id.13
Kozal I, supra note 1.
14
Neb. Rev. Stat. §§ 84‑901 to 84‑920 (Reissue 2014 & Cum. Supp. 2016).
15
Neb. Rev. Stat. §§ 53‑101 to 53‑1,122 (Reissue 2010 & Cum. Supp. 2016).
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Cite as 312 Neb. 208The NLCA, in § 53‑1,115, defines which parties qualify as
“part[ies] of record” in the NLCC proceedings, but includes
limiting language, “[f]or purposes of this section.” 16 To deter-
mine whether the Legislature intended to specifically limit its
definition of parties of record to § 53‑1,115(4), we looked to
the legislative history surrounding the NLCA and APA. 17
In Kozal I, after reviewing the legislative history surround-
ing the NLCA and APA, we found that the definition of “party
of record” had been enacted in the same bill that amended the
NLCA to allow for review through the APA. Further,
[t]he fact that the Legislature adopted the definition of
“party of record” in § 53‑1,115(4) . . . in the very same
bill in which it adopted APA review of the [NLCC’s]
orders, leads to the conclusion that the definition in
§ 53‑1,115(4) is the controlling definition of “party of
record” for purposes of APA review of the Commission’s
proceedings. 18
We thereafter concluded that the citizen objectors were par-
ties of record in the licensure proceeding before the NLCC.
Because the citizen objectors were not named as parties on
appeal, the retailers had not complied with the requirements
for judicial review under the APA, and the district court lacked
jurisdiction over the retailers’ petition for review. The district
court’s order was therefore void, and this court lacked jurisdic-
tion over the appeal. We vacated the district court’s order and
dismissed the appeal.
[8,9] An appellate court will not resort to interpretation
to ascertain the meaning of statutory words that are plain,
direct, and unambiguous. 19 But when a statutory term is
reasonably considered ambiguous, a court may examine the
16
See Kozal I, supra note 1.
17
See id.
18
Id. at 948, 902 N.W.2d at 155‑56.
19
In re Estate of Adelung, 306 Neb. 646, 947 N.W.2d 269 (2020).
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Cite as 312 Neb. 208legislative history of the act in question to ascertain the intent
of the Legislature. 20 Our decision to include a review of the
legislative history, and our use of that history to interpret
the meaning of statutory language and to define a party of
record, indicates that the law was ambiguous and open to
construction.
Until this court rendered a decision in Kozal I, the issue of
naming citizen objectors on appeal from NLCC decisions was
unsettled. At the same time, other attorneys and judges were
arriving at similar conclusions on the issue of naming citizen
objectors as parties to an appeal, 21 and there were multiple
cases decided prior to Snyder’s decision in which citizen objec-
tors were not included as necessary parties to an appeal from
the NLCC. 22 Consequently, Snyder is not liable for an error
in judgment on a point of law which had not been settled by
this court and on which reasonable doubt was entertained by
well‑informed lawyers. Snyder had no duty to accurately pre-
dict the future course of unsettled law.
Appellants, in support of their argument that this area of
law was settled, cite to Shaffer v. Nebraska Dept. of Health &
20
Scofield v. State, 276 Neb. 215, 753 N.W.2d 345 (2008). See Bridgeport
Ethanol v. Nebraska Dept. of Rev., 284 Neb. 291, 818 N.W.2d 600 (2012).
21
See, Candyland, LLC v. Nebraska Liquor Control Comm., 306 Neb. 169,
944 N.W.2d 740 (2020); Retroactive, Inc. v. Nebraska Liquor Control
Comm., 298 Neb. 936, 906 N.W.2d 328 (2018).
22
See, Grand Island Latin Club v. Nebraska Liq. Cont. Comm., 251 Neb.
61, 554 N.W.2d 778 (1996); B & R Stores v. Nebraska Liquor Control
Comm., 242 Neb. 763, 497 N.W.2d 654 (1993); Gas ’N Shop v. Nebraska
Liquor Control Comm., 241 Neb. 898, 492 N.W.2d 7 (1992); Gas ’N
Shop v. Nebraska Liquor Control Comm., 229 Neb. 530, 427 N.W.2d 784(1988); Harrigfeld v. Nebraska Liquor Control Commission, 203 Neb.
741, 280 N.W.2d 61 (1979); Joe and Al’s IGA, Inc. v. Nebraska Liquor
Control Commission, 203 Neb. 176, 277 N.W.2d 693 (1979); City of
Lincoln v. Nebraska Liquor Control Comm., 9 Neb. App. 390, 612 N.W.2d
252 (2000), reversed on other grounds 261 Neb. 783, 626 N.W.2d 518(2001).
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Cite as 312 Neb. 208Human Servs. 23 In Shaffer, this court concluded that an insur-
ance company was a party of record for purposes of the APA
where, among other things, it had participated in hearings,
was treated as a party, and presented evidence and arguments.
Appellants conclude that Snyder therefore should have known
that the citizen objectors were parties of record, because like
the insurance company in Shaffer, the citizen objectors had
participated in hearings and were treated as parties. We do
not agree.
[10] In Kozal I, this court undertook a multistep analy-
sis wherein we concluded that citizen objectors were parties
of record for purposes of the APA because citizen objec-
tors are defined by the NLCA as “‘part[ies] of record’” in
the Commission’s liquor license application proceedings and
because the citizen objectors acted as and were treated as par-
ties in the Commission’s hearing. 24 Shaffer provided support
for the latter portion of the analysis, but did little to resolve
the other issues presented where this court questioned the
applicability of the NLCA to the APA, and so this court instead
referred to legislative history. If Shaffer had indeed settled the
issue, this court would likely have forgone such detailed legis-
lative review and merely cited to Shaffer, as an appellate court
is not obligated to engage in an analysis that is not needed to
adjudicate the controversy before it. 25
While we are required to reach a conclusion independent
of the trial court’s conclusion on questions of law, we agree
with the trial court’s interpretation: This was an unsettled, com-
plicated issue of first impression. Thus, even though this court
later deemed Snyder’s decision to omit the citizen objectors on
appeal to be erroneous in Kozal I, Snyder’s decision was not
erroneous as a matter of law at the time it was made.
23
Shaffer v. Nebraska Dept. of Health & Human Servs., 289 Neb. 740, 857
N.W.2d 313 (2014).
24
Kozal I, supra note 1, 297 Neb. at 953, 902 N.W.2d at 158.
25
Curry v. Lewis & Clark NRD, 267 Neb. 857, 678 N.W.2d 95 (2004).
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Cite as 312 Neb. 208Snyder did not err as a matter of law when he omitted the
citizen objectors from the appeal of the NLCC’s decision. The
district court did not err when it concluded the same.
(c) Client Consent
Appellants argue in the alternative that even if the issue of
naming citizen objectors was an unsettled area of law, Snyder
breached the applicable standard of care by failing to advise
appellants of his decision to omit the citizen objectors and
the risks involved with such decision. Appellees argue that
the duty to inform or to discuss unsettled legal issues with
a client has only been imposed in the context of settlement
negotiations.
Appellants cite Wood for the proposition that lawyers gener-
ally have a duty to reasonably inform their clients of the issues
in their cases and allow their clients to make informed deci-
sions. 26 Accordingly, appellants assert that Snyder’s decision
to omit the citizen objectors on appeal without first consulting
appellants regarding this choice was not protected by the doc-
trine of judgmental immunity that has been previously applied
in the context of unsettled issues of law.
But appellants have omitted key information from the Wood
opinion which is pertinent to appellees’ argument. In Wood, we
addressed an attorney’s negligence in the context of failing to
inform a client of unsettled legal issues pertaining to a settle-
ment. We discussed our holdings in Baker v. Fabian, Thielen &
Thielen, 27 where we first established:
[A]n attorney is not liable for an error in judgment on
a point of law which has not been settled by this court
and on which reasonable doubt may be entertained by
well‑informed lawyers. Thus, an attorney’s judgment or
recommendation on an unsettled point of law is immune
26
Wood v. McGrath, North, supra note 11.
27
Baker v. Fabian, Thielen & Thielen, 254 Neb. 697, 578 N.W.2d 446(1998).
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Cite as 312 Neb. 208from suit, and the attorney has no duty to accurately pre-
dict the future course of unsettled law. 28
Applying this judgmental immunity rule from Baker in the
context of settlement negotiations, we stated:
If we conclude that the judgmental immunity rule applies
to an attorney’s failure to inform a client of unsettled legal
issues relevant to a settlement, an attorney could forgo
conducting research or providing a client with informa-
tion on a relevant legal issue once he or she determined
that the legal issue at hand was unsettled in this state. We
fail to see how this result promotes the settlement of dis-
putes in a client’s best interests. 29
In Wood, we were tasked with determining whether to
extend the Baker judgmental immunity rule to an attorney’s
failure to inform a client of unsettled legal issues relevant to a
settlement agreement. We concluded that the doctrine of judg-
mental immunity did not apply in this context, but reiterated
that our decision imposed no additional duty as a matter of law
to research or inform a client on unsettled legal matters, that
an attorney’s ultimate recommendation in an area of unsettled
law is immune from suit, and that such a result gives the cli-
ent the benefit of both professional advice and the informa-
tion necessary to make an informed decision whether to settle
a dispute. 30
Contrary to appellants’ assertions, Wood did not create a
general duty of lawyers to inform their clients of procedural or
tactical decisions just because the area of law may be unsettled.
Appellants have failed to provide any case law that would
extend the duty to inform beyond settlement negotiations.
And while the duty to inform has not yet been extended
past settlement negotiations in this state, we are aware that
28
Wood v. McGrath, North, supra note 11, 256 Neb. at 113, 589 N.W.2d at
106.
29
Id. at 117, 589 N.W.2d at 108 (emphasis supplied).
30
Id.
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Cite as 312 Neb. 208other jurisdictions considering the same issue are split, with
some deciding that judgmental immunity should not apply to
an attorney’s failure to inform their clients of the nature of the
unsettled law. We are also aware that Wood, and specifically
the cannon cited therein, may tend to imply the same. However,
we reiterate that our holding in Wood was specifically limited
to the settlement context upon contention of the parties that the
law firm either did or did not have a duty to inform its client
of relevant unsettled issues of law when the law firm had pre-
sented its client with a settlement.
[11] Further, we find the arguments in favor of extending
judgmental immunity to be persuasive. For example, in consid-
ering judgmental immunity and the duty to inform, the Florida
Supreme Court stated:
Attorneys cannot be placed in the position of having to
accept direction from clients on intricate interpretations
of the correct or current state of the law. The attorney, not
the client, is the individual trained to interpret the law. .
. . [A]n attorney should not be required to compromise a
reasoned judgment by having to factor into the judgment
the client’s reasoning on a fine point of law. 31
A California court similarly stated that an attorney who acts
in good faith and exercises an honest and informed discretion
is not culpable for failing to correctly anticipate the resolu-
tion of an unsettled legal principle, additionally commenting
that “[t]o require the attorney to further advise a client of the
uncertainty in the law would render the exercise of such pro-
fessional judgment meaningless.” 32
Here, evidence in the record, as well as from our decision
in Kozal I, shows that the issue of naming citizen objectors
as necessary parties on appeal was unsettled. While Snyder’s
decision to omit citizen objectors on appeal was later deemed
31
Crosby v. Jones, 705 So. 2d 1356, 1359 (Fla. 1998).
32
Davis v. Damrell, 119 Cal. App. 3d 883, 889, 174 Cal. Rptr. 257, 261
(1981).
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Cite as 312 Neb. 208erroneous by this court, it was not erroneous at the time
Snyder made the decision. Snyder did not have a duty to
inform his clients regarding the unsettled area of law. Snyder’s
conduct was therefore not erroneous as a matter of law, and
this assignment of error is without merit.
2. Cross Motions for Summary Judgment
In their second assignment of error, appellants assert that the
district court erred in granting appellees’ motion for summary
judgment.
[12] An appellate court will affirm a lower court’s grant
of summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts and
that the moving party is entitled to judgment as a matter of
law. 33 In the summary judgment context, a fact is material only
if it would affect the outcome of the case. 34
Appellants focus their argument on the testimony of an
expert who opined that Snyder breached the standard of care
by failing to name the citizen objectors on appeal and by fail-
ing to inform appellants that he believed this issue was an
unsettled area of law. However, to the extent there is an issue
as to what the law was and whether an attorney correctly
advised on such law is a question of law for the court rather
than a question of fact. The expert’s testimony that the law
was settled, that Snyder incorrectly advised on that law, and
that Snyder had a duty to inform his clients of the law if he
believed it was unsettled would not affect the outcome of the
case and is immaterial.
[13] Appellants next focus on the email received from
Snyder on the day our decision in Kozal I was released. In his
email, Snyder stated that the appeal was lost and that “[o]bvi-
ously, this is my fault.” But while Snyder’s email to appellants
33
Guinn v. Murray, supra note 2.
34
O’Brien v. Bellevue Public Schools, 289 Neb. 637, 856 N.W.2d 731(2014).
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was lost, the email was not an admission that Snyder had
breached any applicable standard of care, nor does it create
a question of fact. Statements or admissions characterized as
mistakes or errors do not necessarily mean that a standard of
care has been violated. 35 While Snyder’s decision to omit the
citizen objectors may be characterized as a mistake, his email
admitting to making a mistake does not prove any breach of
the standard of care, nor does it impact whether Snyder’s con-
duct was erroneous as a matter of law. Thus, this evidence also
does not raise any issues of material fact.
We conclude that appellants’ evidence opposing summary
judgment was insufficient to create an issue of material fact
and that thus, the district court did not err when it granted
appellees’ motion for summary judgment.
Finally, appellants assign that the district court erred in
denying their motion for partial summary judgment. Summary
judgment is proper when the pleadings and evidence admitted
at the hearing disclose no genuine issue regarding any material
fact and the moving party is entitled to judgment as a matter
of law. 36 But, as discussed above, Snyder’s conduct or advice
was not erroneous as a matter of law; hence, appellants are not
entitled to judgment as a matter of law.
Despite appellants’ assertions that the district court should
have granted their motion for partial summary judgment based
on the undisputed facts, appellants have failed to prove that
they are entitled to judgment as a matter of law. Conversely,
Snyder was entitled to judgment as a matter of law. The dis-
trict court did not err when it granted appellees’ motion for
35
See, Fossett v. Board of Regents, 258 Neb. 703, 605 N.W.2d 465 (2000)
(doctor admitted that leaving fluid in patient’s abdomen was mistake; this
court found that such statement provided no insight into requisite standard
of care for treating patient and did not create reasonable inference of
negligence); Halligan v. Cotton, 193 Neb. 331, 227 N.W.2d 10 (1975)
(doctor’s statements proved causation, but did not prove negligence).
36
Chambers v. Bringenberg, 309 Neb. 888, 963 N.W.2d 37 (2021).
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partial summary judgment.
VI. CONCLUSION
When Snyder filed the appeal underlying Kozal I, in which
he did not name the citizen objectors as parties, the issue
of naming citizen objectors in appeals from decisions of the
NLCC was an unsettled issue of law. Additionally, Snyder did
not have a duty to inform his clients regarding the unsettled
area of law. We therefore find that the district court did not err
when it concluded that, as a matter of law, appellees did not
breach the applicable standard of care.
We do not review the district court’s decision to deny appel-
lants’ motion for partial summary judgment, and we hold that
the district court also did not err when it granted appellees’
motion for summary judgment.
Affirmed.
Freudenberg, J., not participating.
Papik, J., concurring in part, and in part dissenting.
I concur in the majority’s determination that Snyder was
entitled to summary judgment on the claim that he was negli-
gent in failing to name the citizen objectors. On this claim, I
agree with the majority that the law on whether citizen objec-
tors had to be named was unsettled and that Snyder’s decision
not to name them was covered by the doctrine of judgmental
immunity. I write separately, however, to explain my disagree-
ment with the majority’s conclusion that Snyder was entitled
to summary judgment on the claim that he was negligent in
failing to advise his clients of the risk of omitting the citizen
objectors on appeal.
In a legal malpractice action, the required standard of con-
duct is that the attorney exercise such skill, diligence, and
knowledge as that commonly possessed by attorneys acting
in similar circumstances. Guinn v. Murray, 286 Neb. 584,
837 N.W.2d 805 (2013). The question of what that standard
requires of an attorney in a particular case and whether
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their case dismissed as a matter of law and reach a trier of
fact if they have expert testimony that lawyers of ordinary
skill and capacity would have handled a situation a certain
way, but the attorney-defendant failed to meet that standard.
See id.We have recognized an exception to this general rule when
lawyers take action with respect to unsettled areas of law.
In particular, we have held that a legal malpractice plaintiff
cannot avoid judgment as a matter of law if the claim is
that the lawyer was negligent for an error in judgment on an
unsettled legal question, no matter what expert testimony the
plaintiff might rely upon. See, e.g., Baker v. Fabian, Thielen
& Thielen, 254 Neb. 697, 578 N.W.2d 446 (1998). We have
referred to this as the “doctrine of judgmental immunity.”
Wood v. McGrath, North, 256 Neb. 109, 113, 589 N.W.2d 103,
105 (1999). Our rationale for adopting the doctrine is that
attorneys cannot be expected to accurately predict the future
course of unsettled law. See, id.; Baker, supra. I have no quar-
rel with the doctrine or with the majority’s conclusion that it
applies to Snyder’s decision not to name the citizen objectors
on appeal.
I disagree, however, with the majority’s conclusion that
the doctrine of judgmental immunity should be extended such
that, with the exception of advice regarding settlement offers,
a lawyer cannot be liable for failing to advise clients regarding
risks posed by unsettled areas of law. In my view, the rationale
for the judgmental immunity rule does not neatly fit when it
is claimed that a lawyer was negligent for failing to advise
clients regarding risks posed by unsettled areas of law. To take
this case as an example, Snyder would not have had to predict
that this court would determine that failing to name the citizen
objectors was a jurisdictional defect that would require dis-
missal to advise his clients of the risks and benefits of naming
or not naming the citizen objectors.
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Cite as 312 Neb. 208I agree with the majority that our decision in Wood, supra,held only that the judgmental immunity doctrine did not cover
a failure to advise claim in the context of advice regarding set-
tlement offers. But, on the other hand, much of our reasoning
in that case would apply to other contexts as well. We noted,
for example, that a lawyer need not accurately predict the
future course of the law in order to advise a client regarding
unsettled issues in the law. We also reasoned that if the judg-
mental immunity rule applied to an attorney’s failure to inform
a client of unsettled legal issues relevant to a settlement, “an
attorney could forgo conducting research or providing a cli-
ent with information on a relevant legal issue once he or she
determined that the legal issue at hand was unsettled in this
state.” Id. at 117, 589 N.W.2d at 108. It strikes me that today’s
decision appears to immunize lawyers from potential liability
if they take that very course in an area that does not involve
providing advice on a settlement offer.
To be fair, our decision in Wood also relied on a provision of
the then-governing professional responsibility rules for attor-
neys, providing that the decision to settle a case belongs to the
client. But other provisions of our current rules of professional
conduct recognize an attorney’s general duty to keep a client
informed so the client can make decisions during the represen-
tation. These rules provide that an attorney shall “reasonably
consult with the client about the means by which the client’s
objectives are to be accomplished,” Neb. Ct. R. of Prof. Cond.
§ 3-501.4(a)(2); “keep the client reasonably informed about the
status of the matter,” § 3-501.4(a)(3); and “explain a matter to
the extent reasonably necessary to permit the client to make
informed decisions regarding the representation,” § 3-501.4(b).
A comment to this rule adds:
The client should have sufficient information to partici-
pate intelligently in decisions concerning the objectives
of the representation and the means by which they are
to be pursued, to the extent the client is willing and able
to do so. Adequacy of communication depends in part
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Cite as 312 Neb. 208on the kind of advice or assistance that is involved. For
example, when there is time to explain a proposal made in
a negotiation, the lawyer should review all important pro-
visions with the client before proceeding to an agreement.
In litigation, a lawyer should explain the general strategy
and prospects of success and ordinarily should consult
the client on tactics that are likely to result in significant
expense or to injure or coerce others. On the other hand, a
lawyer ordinarily will not be expected to describe trial or
negotiation strategy in detail. The guiding principle is that
the lawyer should fulfill reasonable client expectations for
information consistent with the duty to act in the client’s
best interests, and the client’s overall requirements as to
the character of representation.
§ 3-501.4, comment 5.
I also note that I am not persuaded by the majority’s reli-
ance on two cases from other jurisdictions. As an initial mat-
ter, it is not clear to me that those cases extend the doctrine of
judgmental immunity as far as the majority does here. Starting
with the Florida Supreme Court’s opinion in Crosby v. Jones,
705 So. 2d 1356, 1359 (Fla. 1998), that opinion expressly
disavowed holding that “an attorney should never be required
to inform a client regarding a conflict in the law.” Instead,
the court held that the lawyer did not have a duty to consult
with his clients when the existing precedents of the court in
which the underlying case was pending supported the law-
yer’s decision. As we explained in Wood v. McGrath, North,
256 Neb. 109, 116, 589 N.W.2d 103, 107 (1999), Crosby was
thus a case of not “unsettled law,” but “apparently settled
law.” (Emphasis in original.) I agree that a lawyer should be
immune from a suit when it is alleged that he or she failed to
consult with a client about apparently settled law. But in this
case, there is no suggestion that at the time Snyder filed the
appeal, the law was apparently settled that citizen objectors
need not be named.
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119 Cal. App. 3d 883, 174 Cal. Rptr. 257 (1981), also may
have presented a situation in which a court was reluctant to
allow for liability for the failure to predict a change in the law.
Although the court refers to the law at issue as unsettled, it
also states that the lawyer could not be held liable for failing to
anticipate a “180 degree shift in the law.” Id. at 888, 174 Cal.
Rptr. at 260 (internal quotation marks omitted).
Both Crosby and Davis do have broader language, quoted by
the majority, concluding that it would be an intrusion on law-
yers’ professional judgment if there is a possibility that lawyers
can be held liable for not advising their clients regarding risks
associated with unsettled issues of law. I am not convinced.
As I see it, advising a client regarding legal risks is part and
parcel of attorneys’ professional judgment. I also note that to
the extent Crosby and Davis are read to apply the doctrine of
judgmental immunity to any case in which it is alleged that a
lawyer failed to advise a client regarding unsettled issues of
law, several other courts have not followed that approach. See,
e.g., Williams v. Ely, 423 Mass. 467, 668 N.E.2d 799 (1996);
Chatham Orthopaedic Surgery Center v. White, 283 Ga. App.
10, 640 S.E.2d 633 (2006); First Nat. Bank of Clovis v. Diane,
Inc., 102 N.M. 548, 698 P.2d 5 (N.M. App. 1985); Bowman v.
Gruel Mills Nyms & Pylman, LLP, 2007 WL 1203580 (W.D.
Mich. Apr. 24, 2007).
Because I would not apply the doctrine of judgmental immu-
nity to the failure to advise claims, I would treat such claims as
subject to ordinary legal malpractice standards. In other words,
I would treat the questions of whether the standard of care
required a lawyer to advise a client of risks posed by unsettled
areas and whether the lawyer met that standard as questions
of fact. And because the appellants offered an expert affidavit
that the standard of care required such advice here, I would not
affirm the entry of summary judgment on that claim. That out-
come would not ensure victory for appellants. Rather, it would
require a trial where Snyder could offer evidence that this was
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advised their client or that, given his relationship with appel-
lants, this was not an issue on which his clients would have
reasonably expected to be so advised.
Much of lawyering, it seems to me, involves identifying
risks and advising clients of potential consequences so that
clients can make informed choices. If a lawyer fails to advise
a client of a risk when other lawyers in the community would
normally provide such advice and the client can prove result-
ing damages, I do not think the judgmental immunity doc-
trine should close the courthouse doors to that client, merely
because the risk involved an unsettled issue of law. For that
reason, I respectfully dissent.
Miller-Lerman, J., joins in this concurrence and dissent.