Dondlinger v. Nelson ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
07/31/2020 12:10 AM CDT
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Nebraska Supreme Court Advance Sheets
305 Nebraska Reports
DONDLINGER v. NELSON
Cite as 305 Neb. 894
Terry L. Dondlinger and Valerie Dondlinger,
appellants, v. Jayson D. Nelson,
an individual, et al., appellees.
___ N.W.2d ___
Filed May 22, 2020. No. S-19-428.
1. Summary Judgment. Summary judgment is proper when the plead-
ings and the evidence admitted at the hearing disclose that there is no
genuine issue as to any material fact or as to the ultimate inferences that
may be drawn from those facts and that the moving party is entitled to
judgment as a matter of law.
2. 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 those facts and
that the moving party is entitled to judgment as a matter of law.
3. Summary Judgment. The primary purpose of the summary judgment
procedure is to pierce the allegations in the pleadings and show conclu-
sively that the controlling facts are other than as pled.
4. Summary Judgment: Proof. The party moving for summary judgment
must make a prima facie case by producing enough evidence to show
that the movant is entitled to judgment if the evidence were uncontro-
verted at trial.
5. ____: ____. If the party moving for summary judgment makes a prima
facie case, the burden shifts to the nonmovant to produce evidence
showing the existence of a material issue of fact that prevents judgment
as a matter of law.
6. Limitations of Actions: Malpractice: Attorney and Client. If a claim
for professional negligence in the nature of legal malpractice is not to
be considered time barred, the plaintiff must either file within 2 years
of an alleged act or omission or show that its action falls within the
discovery exception of Neb. Rev. Stat. § 25-222 (Reissue 2016) or has
been tolled pursuant to the continuous representation rule.
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DONDLINGER v. NELSON
Cite as 305 Neb. 894
7. Limitations of Actions: Words and Phrases. “Discovery,” in the
context of statutes of limitations, refers to the fact that one knows of
the existence of an injury and not that one has a legal right to seek
redress.
8. Limitations of Actions: Malpractice. Under Neb. Rev. Stat. § 25-222
(Reissue 2016), it is not necessary that a plaintiff have knowledge of
the exact nature or source of the problem, but only that a problem
existed.
9. Limitations of Actions: Malpractice: Words and Phrases. In a profes-
sional negligence case, “discovery of the act or omission” occurs when
the party knows of facts sufficient to put a person of ordinary intel-
ligence and prudence on inquiry which, if pursued, would lead to the
knowledge of facts constituting the basis of the cause of action.
10. Malpractice: Attorney and Client: Damages: Words and Phrases. In
a cause of action for professional negligence, legal injury is the wrong-
ful act or omission which causes the loss. Legal injury is not damage;
damage is the loss resulting from the misconduct.
11. Limitations of Actions: Malpractice. The statute of limitations for a
claim of professional negligence is tolled if there is a continuity of the
relationship and services for the same or related subject matter after the
alleged professional negligence.
12. Limitations of Actions: Malpractice: Attorney and Client. In a claim
of professional negligence, if a client discovers the act or omission
prior to the termination of an attorney’s representation, then the con-
tinuous representation exception does not apply to toll the statute of
limitations.
13. Summary Judgment: Affidavits. Where the movant for summary judg-
ment submits an affidavit as to a material fact, and that fact is not con-
tradicted by the adverse party, the court will determine that there is no
issue as to that fact.
14. Summary Judgment. Conclusions based on guess, speculation, conjec-
ture, or a choice of possibilities do not create material issues of fact for
purposes of summary judgment.
Appeal from the District Court for Douglas County: Horacio
J. Wheelock, Judge. Affirmed.
James R. Welsh, of Welsh & Welsh, P.C., L.L.O., for
appellants.
Mark C. Laughlin and Jacqueline M. DeLuca, of Fraser
Stryker, P.C., L.L.O., for appellees.
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305 Nebraska Reports
DONDLINGER v. NELSON
Cite as 305 Neb. 894
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
NATURE OF CASE
This appeal involves a legal malpractice action brought by
Terry L. Dondlinger and Valerie Dondlinger which the district
court for Douglas County dismissed as time barred. The district
court concluded that the continuing representation exception
to the 2-year statute of limitations in Neb. Rev. Stat. § 25-222
(Reissue 2016) did not apply. Instead, because the Dondlingers
discovered the allegedly negligent act prior to the termination
of the attorney-client relationship, the 1-year discovery rule
in § 25-222 did apply and the Dondlingers’ action was time
barred. The district court granted the defendants’ motion for
summary judgment and dismissed the Dondlingers’ action with
prejudice. The Dondlingers appeal.
STATEMENT OF FACTS
On May 18, 2018, the Dondlingers filed a complaint against
defendants Jayson D. Nelson and Hunegs, LeNeave & Kvas,
P.A. On June 12, the Dondlingers amended their complaint
and added Katie D. Figgins as a defendant. The complaints
against the three defendants (collectively the appellees) set
forth claims of professional negligence relating to the appel-
lees’ legal representation of the Dondlingers in a personal
injury action for an accident that occurred on April 6, 2012.
This personal injury action forms the underlying case in the
current legal malpractice appeal.
In their controlling complaint, the Dondlingers allege that
in the underlying case, the appellees “negligently failed to
properly file a Tort Claim pursuant to the Nebraska Political
Subdivision Claims Act, Neb. Rev. Stat. § 13-901 et seq.” on
Nickerson Township, Dodge County, Nebraska. In the underly-
ing case, Nickerson Township was granted summary judgment
and dismissed from the case. The appellees, representing the
Dondlingers, filed a notice of appeal to the Nebraska Court
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305 Nebraska Reports
DONDLINGER v. NELSON
Cite as 305 Neb. 894
of Appeals in November 2015 in case No. A-15-1108. During
the pendency of case No. A-15-1108, the appellees filed a
response to an order to show cause and a motion for extension
of time to file a brief on behalf of the Dondlingers. The appeal
was ultimately dismissed in May 2016 for their failure to file
a brief.
In Nelson’s affidavit filed in the current legal malpractice
case, he explained how he informed the Dondlingers of the
alleged negligence in the underlying case and the outcome in
the Court of Appeals. The affidavit states:
5. During the course of the representation of Terry
Dondlinger and Valerie Dondlinger, I initiated a telephone
conference between myself and Terry Dondlinger and
Valerie Dondlinger. In this telephone conference, I person-
ally informed [them] regarding the District Court’s find-
ing that we did not properly serve Nickerson Township.
This is the alleged negligence that is set forth in [their]
Complaint in the above-captioned matter. We discussed at
length the facts and circumstances which led to the dis-
missal and the appeal.
6. I advised Terry and Valerie Dondlinger that our
representation of them would end, and that we would be
closing their file, after advising them of the alleged negli-
gence at issue in this Complaint. This fact is reflected in
[the Dondlingers’] Statement of Undisputed Facts.
The Dondlingers’ answers to the appellees’ interrogatories
in the current legal malpractice case state that “[w]ithin thirty
(30) days after June 23, 2016,” (1) the Dondlingers discovered
the fact that the appellees had failed to properly file their tort
claim in the underlying case and (2) the Dondlingers’ attorney-
client relationship with the appellees ended. The appellees do
not dispute these assertions.
The Dondlingers filed the present action on May 18, 2018,
which, given discovery within 30 days after June 23, 2016,
was after the 1-year discovery rule contained in § 25-222 but
within the general 2-year statute of limitations for professional
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DONDLINGER v. NELSON
Cite as 305 Neb. 894
negligence set forth in § 25-222. The Dondlingers argued to
the district court and again on appeal that their claim did not
accrue until the continuing representation by the appellees
ended, that the 2-year limitations period started on the termina-
tion of the relationship, and that their action was timely. The
appellees filed a motion for summary judgment in the district
court on the basis of the statute of limitations, § 25-222.
On January 2, 2019, the district court granted the appellees’
motion for summary judgment and dismissed the Dondlingers’
action with prejudice. The Dondlingers filed a motion to alter
or amend the judgment. The district court, on its own motion,
vacated its prior order and requested that the parties provide
supplemental briefing on the “continuous representation doc-
trine.” On April 30, the district court denied the motion to alter
or amend and entered an order granting summary judgment
in favor of the appellees. In reaching its decision, the district
court concluded that the continuous representation doctrine
did not toll the accrual of the action, because the Dondlingers
had discovered the alleged negligence during the course of
the attorney-client relationship. The court determined that the
action was time barred because the Dondlingers filed their
claim for professional negligence more than 1 year after dis-
covery of the alleged negligent act.
The Dondlingers appeal.
ASSIGNMENT OF ERROR
The Dondlingers claim that the district court erred when
it dismissed their amended complaint as untimely. They con-
tend that the 2-year statute of limitations was tolled because
the appellees continued to represent them during the appeals
process.
STANDARDS OF REVIEW
[1,2] Summary judgment is proper when the pleadings and
the evidence admitted at the hearing disclose that there is no
genuine issue as to any material fact or as to the ultimate
inferences that may be drawn from those facts and that the
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DONDLINGER v. NELSON
Cite as 305 Neb. 894
moving party is entitled to judgment as a matter of law. Meyer
Natural Foods v. Greater Omaha Packing Co., 302 Neb.
509, 925 N.W.2d 39 (2019). 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 those facts and that the moving party is entitled to
judgment as a matter of law. Id.
ANALYSIS
Reduced to its essence, the Dondlingers argue that the
continuous relationship doctrine tolled the statute of limita-
tions, thereby giving them 2 years to file their legal malprac-
tice case after learning of their attorneys’ alleged negligence.
The Dondlingers claim that the district court erred when it
ruled that because the continuous relationship did not apply,
the Dondlingers’ complaint was subject to the 1-year dis-
covery rule and was time barred. We find no merit to the
Dondlingers’ argument and therefore affirm the dismissal of
the Dondlingers’ action.
[3-5] In this case, the appellees successfully moved for
summary judgment. The primary purpose of the summary
judgment procedure is to pierce the allegations in the plead-
ings and show conclusively that the controlling facts are other
than as pled. Williamson v. Bellevue Med. Ctr., 304 Neb. 312,
934 N.W.2d 186 (2019). Neb. Rev. Stat. § 25-1332(1) (Cum.
Supp. 2018) provides in part that a motion for summary
judgment shall be granted “if the pleadings and the evidence
admitted at the hearing show that there is no genuine dispute
as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” The party moving for sum-
mary judgment must make a prima facie case by producing
enough evidence to show that the movant is entitled to judg-
ment if the evidence were uncontroverted at trial. Williamson
v. Bellevue Med. Ctr., supra. If the party moving for summary
judgment makes a prima facie case, the burden shifts to the
nonmovant to produce evidence showing the existence of a
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DONDLINGER v. NELSON
Cite as 305 Neb. 894
material issue of fact that prevents judgment as a matter of
law. Id.
The Dondlingers’ legal malpractice action is a claim of pro-
fessional negligence, and we turn to § 25-222 to determine the
timeliness of the cause of action. Section 25-222 provides:
Any action to recover damages based on alleged pro-
fessional negligence or upon alleged breach of warranty
in rendering or failure to render professional services shall
be commenced within two years next after the alleged act
or omission in rendering or failure to render professional
services providing the basis for such action; Provided,
if the cause of action is not discovered and could not be
reasonably discovered within such two-year period, then
the action may be commenced within one year from the
date of such discovery or from the date of discovery of
facts which would reasonably lead to such discovery,
whichever is earlier; and provided further, that in no event
may any action be commenced to recover damages for
professional negligence or breach of warranty in render-
ing or failure to render professional services more than
ten years after the date of rendering or failure to render
such professional service which provides the basis for the
cause of action.
[6] If a claim for professional negligence in the nature
of legal malpractice is not to be considered time barred, the
plaintiff must either file within 2 years of an alleged act or
omission or show that its action falls within the discovery
exception of § 25-222 or has been tolled pursuant to the con-
tinuous representation rule. See Guinn v. Murray, 286 Neb.
584, 837 N.W.2d 805 (2013). We discussed the two exceptions
to the 2-year provision in § 25-222 in recent case law. See
Guinn, supra.
[7-10] With regard to the discovery rule, in Guinn, we stated:
The discovery rule as it pertains to professional neg-
ligence claims is set forth in §25-222, quoted above. By
the terms of the statute, the discovery rule applies only
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DONDLINGER v. NELSON
Cite as 305 Neb. 894
when the cause of action is not discovered and could not
reasonably have been discovered within the 2-year limita-
tions period. If the discovery rule applies, then the limi­
tations period is 1 year from the time the cause of action
is or could have been discovered. “Discovery,” in the con-
text of statutes of limitations, refers to the fact that one
knows of the existence of an injury and not that one has a
legal right to seek redress. Lindsay Mfg. Co. v. Universal
Surety Co., 246 Neb. 495, 519 N.W.2d 530 (1994). It is
not necessary that a plaintiff have knowledge of the exact
nature or source of the problem, but only that a problem
existed. Id. In a professional negligence case, “discovery
of the act or omission” occurs when the party knows of
facts sufficient to put a person of ordinary intelligence
and prudence on inquiry which, if pursued, would lead to
the knowledge of facts constituting the basis of the cause
of action. Gering - Ft. Laramie Irr. Dist. v. Baker, 259
Neb. 840, 612 N.W.2d 897 (2000). In a cause of action
for professional negligence, legal injury is the wrongful
act or omission which causes the loss. Id. Legal injury is
not damage; damage is the loss resulting from the mis-
conduct. See id.
286 Neb. at 597-98, 837 N.W.2d at 817.
[11] With regard to the continuous relationship rule, in
Guinn, we stated:
[T]he statute of limitations for a claim of professional
negligence is tolled if there is a continuity of the rela-
tionship and services for the same or related subject mat-
ter after the alleged professional negligence. Bellino v.
McGrath North, 274 Neb. 130, 738 N.W.2d 434 (2007).
However, we have limited the reach of the continuous
representation rule by stating that continuity does not
mean mere continuity of the general professional rela-
tionship and that the continuous representation rule is
inapplicable when the claimant discovers the alleged
negligence prior to the termination of the professional
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DONDLINGER v. NELSON
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relationship. See Reinke Mfg. Co. v. Hayes, 256 Neb. 442,
590 N.W.2d 380 (1999).
286 Neb. at 598, 837 N.W.2d at 817.
The Dondlingers contend that they learned of the appellees’
alleged negligence within 30 days after June 23, 2016. The
complaint was filed on May 18, 2018. Given that the 1-year
discovery rule would not save their action, the Dondlingers
rely instead on the continuous representation rule to contend
their action was timely filed because the legal malpractice
action did not accrue until the conclusion of their first appeal
and the termination of their professional relationship with
the appellees.
[12] As noted, the controlling principle of law since at
least Economy Housing Co. v. Rosenberg, 239 Neb. 267, 475
N.W.2d 899 (1991), is that if the client discovers the act or
omission prior to the termination of the attorney’s repre-
sentation, then the continuous representation exception does
not apply. In Economy Housing Co., we explained that “[t]o
hold otherwise would merely encourage clients to sit on their
hands, with full knowledge of negligence on the part of the
professional who is serving them, knowing that the clock
would not start to run on their claim until they actually fired
the practitioner.” 239 Neb. at 269, 475 N.W.2d at 900. To
determine whether the continuous representation exception
applies, the record would need to demonstrate when the
Dondlingers learned of the act or omission and, in particular,
whether that occurred prior to or after the end of the appel-
lees’ representation.
In an effort to show that the Dondlingers learned of the error
prior to the termination of their representation, the appellees
offered Nelson’s affidavit, which, as previously quoted, states
in paragraphs 5 and 6 as follows:
5. During the course of the representation of Terry
Dondlinger and Valerie Dondlinger, I initiated a tele-
phone conference between myself and Terry Dondlinger
and Valerie Dondlinger. In this telephone conference,
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DONDLINGER v. NELSON
Cite as 305 Neb. 894
I personally informed [them] regarding the District
Court’s finding that we did not properly serve Nickerson
Township. This is the alleged negligence that is set forth
in [their] Complaint in the above-captioned matter. We
discussed at length the facts and circumstances which led
to the dismissal and the appeal.
6. I advised Terry and Valerie Dondlinger that our
representation of them would end, and that we would be
closing their file, after advising them of the alleged negli-
gence at issue in this Complaint. This fact is reflected in
[the Dondlingers’] Statement of Undisputed Facts.
[13] If uncontroverted, this evidence satisfied the appel-
lees’ objective to establish that the Dondlingers learned of the
error during the attorney-client relationship, thus triggering
the 1-year discovery period in § 25-222 and rendering the
complaint filed on May 18, 2018, untimely. At this point, the
burden with respect to this issue shifted to the Dondlingers to
overcome the evidence that their complaint was time barred.
In this regard, we have noted that where the movant for sum-
mary judgment submits an affidavit as to a material fact, and
that fact is not contradicted by the adverse party, the court will
determine that there is no issue as to that fact. Boyle v. Welsh,
256 Neb. 118, 589 N.W.2d 118 (1999).
A review of the record shows that by virtue of the evidence,
including paragraph 9 of the amended complaint and answer
thereto, it is undisputed that one attorney and the Dondlingers
participated in a communication during which the attorney
advised the Dondlingers that no petition for further review to
the Nebraska Supreme Court would be filed after the Court of
Appeals dismissed the Dondlingers’ appeal. The time for fil-
ing a petition for further review is 30 days. Neb. Ct. R. App.
P. § 2-102(F)(1) (rev. 2015). We logically understand that
this communication occurred within the period available for
filing such a petition for further review, i.e., within 30 days
after the dismissal by the Court of Appeals. According to the
Nelson affidavit, the conversation included an explanation of
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DONDLINGER v. NELSON
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the underlying act or omission and an indication that the attor-
neys would end the relationship.
The Dondlingers’ answers to interrogatories Nos. 6 and 7
stated as follows:
INTERROGATORY NO. 6: Please state the date that
your attorney-client relationship with Defendants ended.
ANSWER: See Complaint.
SUPPLEMENTAL ANSWER: Within thirty (30)
days after June 23, 2016.
INTERROGATORY NO. 7: Please state the date
that you discovered the fact that Defendants “negli-
gently failed to properly file a Tort Claim pursuant to
the Nebraska Political Subdivision Claims Act, Neb. Rev.
Stat. § 13-901 et seq.”, as alleged in paragraph six of your
Amended Complaint in this action.
ANSWER: See Response to Request for Admissions.
SUPPLEMENTAL ANSWER: Within thirty (30)
days after June 23, 2016.
No party asserts a date upon which the attorney-client
relationship ended, but given the exchange regarding filing a
petition for further review, and inferring a date favorable to
the Dondlingers, the termination happened during the 30-day
period available for filing a petition for further review, follow-
ing the Court of Appeals’ dismissal in May 2016. Based on
the Dondlingers’ responses to interrogatories, it is possible that
the Dondlingers learned of the error on any day either before
or after the termination of the relationship, but in any event,
occurring during the 30 days “after June 23, 2016.”
Having reviewed the record, it is clear that the Dondlingers
have failed to specifically assert that they did not learn of
the error until after the termination of the relationship, as
they needed to demonstrate to take advantage of the con-
tinuous representation rule. Because the appellees carried their
evidentiary burden and showed that the Dondlingers were
advised of the error prior to the termination of the relation-
ship, it was incumbent on the Dondlingers to controvert this
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DONDLINGER v. NELSON
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assertion; otherwise, their complaint was untimely filed. The
Dondlingers have not provided evidence which controverts
that of the appellees.
[14] We recognize that the Dondlingers’ evidence identifies
a 30-day period during which they learned of the appellees’
act or omission, and we are aware that at the summary judg-
ment stage, inferences should be in favor of the nonmoving
party. However, although we must infer facts favorable to the
Dondlingers, we are not permitted to speculate. Conclusions
based on guess, speculation, conjecture, or a choice of pos-
sibilities do not create material issues of fact for purposes of
summary judgment. Pitts v. Genie Indus., 302 Neb. 88, 921
N.W.2d 597 (2019). In this case, there is no categorical infer-
ence that the Dondlingers learned of the appellees’ negligent
action or omission after the end of the relationship. Although
there is a possibility, the Dondlingers did not assert they were
unaware of the error until after the termination of the relation-
ship. Given all the evidence and giving the Dondlingers the
favorable inferences, their evidence amounts to the following:
During the period for filing a petition for further review, we
learned of the error on a date which might have been after
the appellees terminated the relationship. The appellees’ evi-
dence that they communicated the error prior to the end of the
­attorney-client relationship stands uncontroverted.
CONCLUSION
As explained above, the district court did not err when
it ruled that the continuing representation exception did not
apply, and that therefore, the Dondlingers’ action was time
barred, and when it granted summary judgment in favor of the
appellees. The district court’s dismissal of the Dondlingers’
action is affirmed.
Affirmed.
Miller-Lerman, J., concurring.
Given our jurisprudence in the legal malpractice area
regarding the continuous representation doctrine, I believe the
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opinion is correct. We have stated that the continuous repre-
sentation rule does not apply when the claimant discovers the
alleged professional negligence prior to the termination of the
professional relationship. Guinn v. Murray, 286 Neb. 584, 837
N.W.2d 805 (2013); Economy Housing Co. v. Rosenberg, 239
Neb. 267, 475 N.W.2d 899 (1991). See Bonness v. Armitage,
ante p. 747, ___ N.W.2d ___ (2020). However, as one trea-
tise noted and this case illustrates, “[i]f applied rigidly, this
approach can produce randomly harsh results.” 3 Ronald E.
Mallen, Legal Malpractice § 23:45, n.23 at 562 (2020). In
the present case, the appellees asserted that they informed the
Dondlingers of the alleged malpractice prior to the termination
of the relationship and the Dondlingers asserted that it was
possible that they discovered the appellees’ alleged malpractice
either before, simultaneously with, or after the termination
of representation.
As I understand it, Nebraska is one of few jurisdictions that
resolves the applicability of the continuous representation doc-
trine by focusing on whether the client discovered the alleged
legal malpractice before or after the end of the representation.
See id. To apply the doctrine in a reasonable manner, I believe,
as a substantial majority of other states have recognized, the
question is more nuanced. See 3 Mallen, supra, § 23:45 (col-
lecting cases).
In Lincoln Grain v. Coopers & Lybrand, 215 Neb. 289, 338
N.W.2d 594 (1983), we explained the continuous treatment
doctrine as it applied to medical malpractice and how it might
apply to accountants and, by inference, other professional serv­
ices. When we adopted the continuous treatment doctrine in
1941, we acknowledged the occurrence rule but nevertheless
sought to avoid premature litigation when we stated:
[I]t is just to the physician and surgeon that he [or she]
may not be harassed by premature litigation instituted in
order to save the right of the patient in the event there
should be substantial malpractice. The physician and sur-
geon must have all reasonable time and opportunity to
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correct the evils which made the observation and treat-
ment necessary and to correct the ordinary and usual
mistakes incident to even skilled surgery. The [continuing
treatment doctrine] is conducive to that mutual confidence
which is highly essential in the relation between surgeon
and patient. The treatment and employment should be
considered as a whole, and if there occurred therein mal-
practice, the statute of limitations should begin to run
when the treatment ceased.
Williams v. Elias, 140 Neb. 656, 662-63, 1 N.W.2d 121, 124
(1941).
Additional concerns, including avoiding disruption of the
relationship and the potential for concealment, were articulated
in Casey v. Levine, 261 Neb. 1, 621 N.W.2d 482 (2001), and
may be relevant in the present case. In Casey, we stated:
It is apparent that allowing a physician an opportunity to
correct any malpractice and not disrupting the ­physician-
patient relationship are the primary considerations under-
lying the continuing treatment doctrine in Nebraska. Id.
See, also, McDermott v. Torre, 56 N.Y.2d 399, 408, 437
N.E.2d 1108, 1112, 452 N.Y.S.2d 351, 355 (1982) (“the
most efficacious medical care will be obtained when the
attending physician remains on a case from onset to cure
[and] implicit in the policy is the recognition that the
doctor not only is in a position to identify and correct his
or her malpractice, but is best placed to do so”). It is the
trust relationship that may make discovery of a claim dif-
ficult. See Miller v. United States, 458 F. Supp. 363, 366
(D. Puerto Rico 1978) (“[t]he rationale for the [continu-
ing treatment doctrine] is the protection of the confiden-
tial physician-patient relationship . . . as well as the fear
that the treating physician, ‘knowing of his actionable
mistake, might be able to conceal it from his patient or
continuously to lull the patient into failing to institute suit
within the ordinarily permissible time period’”).
261 Neb. at 8, 621 N.W.2d at 488.
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The foregoing rationales are in service to permit the profes-
sional an opportunity to be forthright and remedy the error.
In the legal malpractice area, the continuous representation
doctrine tolls the statute of limitations only for ongoing and
continuous services by the attorney for the same or related
subject matter after the professional negligence. See Bellino
v. McGrath North, 274 Neb. 130, 738 N.W.2d 434 (2007).
Continuity does not mean the mere continuity of the general
professional relationship. Behrens v. Blunk, 284 Neb. 454, 822
N.W.2d 344 (2012). In this regard and for completeness, we
are aware of the “exhaustion of appeals” approach adopted by
some states, e.g., Hughes v. Mahaney & Higgins, 821 S.W.2d
154 (Tex. 1991). But see Story v. Bunstine, 538 S.W.3d 455
(Tenn. 2017) (rejecting inter alia the appeal-tolling doctrine).
Under this approach, a statute of limitations does not com-
mence until all appeals from the underlying case in which an
error allegedly occurred are exhausted. In Nebraska, we have
declined to adopt such a broad rule, see Suzuki v. Holthaus, 221
Neb. 72, 375 N.W.2d 126 (1985), and it is not necessary to do
so here.
Our focus on the timing of an innocent client’s knowledge
and whether his or her revelation falls either before or after the
end of the representation confuses the continuous representa-
tion doctrine with the discovery rule and compromises the
virtues of the professional attorney-client relationship which
the continuous representation rule was designed to preserve.
So, as I see it, we should consider abandoning the rigid “prior”
test and return to implementing the original purposes of the
continuous representation doctrine to enable an attorney the
opportunity to resolve the problem or minimize the extent of
the injury. Morrison v. Watkins, 20 Kan. App. 2d 411, 889 P.2d
140 (1995) (noting that Nebraska’s “prior” test does not allow
client to work with attorney to correct error). To be thorough,
if we persist in rigid application of the “prior” test, we should
consider abandoning the doctrine and simply stick to the stat-
ute, Neb. Rev. Stat. § 25-222 (Reissue 2016), which provides
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the discovery rule exception as the only exception to the statute
of limitations.
Here, the appellees continued to represent the Dondlingers
on an appeal from their underlying case in an apparent attempt
to reverse the consequences of the appellees’ alleged act of
malpractice. If we do not insist on applying the “prior” test,
the 2-year statute of limitations for professional negligence
would have accrued on the singular occasion when the appel-
lees informed the Dondlingers of their error, their appellate
case was concluded, and the appellees would be closing the
file. Without application of the “prior” test, the Dondlingers’
legal malpractice case would not be time barred. However, as
noted at the outset of this concurrence, applying our current
jurisprudence, I concur with the opinion, which concludes that
the district court did not err when it determined that the case
was time barred and dismissed the Dondlingers’ action.
Papik, J., concurring.
I agree with Justice Miller-Lerman that the continuous rep-
resentation doctrine, as it currently exists in Nebraska, does
not appear to further the rationale for having such a rule. I, like
Justice Miller-Lerman, understand the primary purposes of a
continuous representation rule to be to encourage attorneys to
attempt to remedy or mitigate the damages caused by possible
errors and to allow clients to rely on their attorneys’ efforts to
do so without fear that the time to bring a legal malpractice
claim is slipping away. See, e.g., Hiligh v. Sands, 389 F. Supp.
3d 69 (D.D.C. 2019) (discussing policy justifications for con-
tinuous representation rule). I too believe those purposes will
rarely, if ever, be served given our rule that the continuous rep-
resentation doctrine does not apply when the claimant discov-
ers the alleged professional negligence prior to the termination
of the professional relationship. See Guinn v. Murray, 286 Neb.
584, 837 N.W.2d 805 (2013).
Indeed, it would seem that the only scenario in which
the continuous representation doctrine could be successfully
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invoked under our precedent would be one in which a former
client learns of malpractice committed by his or her attor-
ney only after the representation has concluded. But, in that
scenario, there is no need for a continuous representation
rule. The discovery exception in Neb. Rev. Stat. § 25-222
(Reissue 2016) would extend the period in which the client
could timely file his or her claim, and there would be no cause
to worry about disrupting an already-concluded lawyer-client
relationship.
One way out of this thicket would be to, as Justice Miller-
Lerman suggests, do away with our rule that the continuous
representation rule does not apply when the client discovers the
alleged negligence prior to the termination of the relationship.
But while that course may lead to a more coherent continuous
representation doctrine, I am concerned that the doctrine as a
whole is not consistent with the text of the professional neg-
ligence statute of limitations. Section 25-222 provides that in
the case of professional negligence, the statute of limitations
starts running upon the allegedly negligent act or omission of
the professional. It provides one and only one exception to that
rule—the discovery exception mentioned above.
Ordinarily, when a statute specifically provides for excep-
tions, we will not recognize others judicially. See In re
Guardianship of Eliza W., 304 Neb. 995, 1006, 938 N.W.2d
307, 315 (2020) (“[o]ne of our rules of statutory interpreta-
tion provides that when a statute specifically provides for
exceptions, items not excluded are covered by the statute”).
We appear not to have followed that principle when we recog-
nized the continuous representation doctrine as an additional
exception to § 25-222’s direction that the statute of limitations
starts running upon the allegedly negligent act or omission of
the professional.
It is, I recognize, one thing to note that the justification for
an established legal doctrine is questionable and quite another
to overrule that doctrine. Stare decisis is entitled to great
weight in our system. See Heckman v. Marchio, 296 Neb. 458,
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894 N.W.2d 296 (2017). But one of the main reasons a court
might adhere to a legal doctrine notwithstanding its question-
able underpinnings is that parties have relied on the existence
of that precedent. See id. It is difficult for me to believe, how-
ever, that anyone has or would organize their behavior based
on our version of the continuous representation doctrine. As I
have noted, the doctrine, as currently articulated, rarely applies
and when it does, it is unnecessary.
If, in fact, there is minimal reliance on the continuous rep-
resentation doctrine and it cannot be squared with § 25-222, I
suggest that any reconsideration of the doctrine should begin
with the question of whether, absent legislative action, the doc-
trine should be recognized at all.
Stacy, J., joins in this concurrence.