Young v. Govier & Milone ( 2013 )

Nebraska Advance Sheets
224 286 NEBRASKA REPORTS
records, I would agree that she had no reason to com-
plain.27 But this case does not present those facts. Because
law enforcement agents sought Wiedeman’s records solely to
incriminate her in a targeted investigation, the search was not
an administrative inspection and did not fall within the special
needs exception.
In short, targeted criminal investigations are distinct
from other types of government searches. And once a court
r
­ecognizes that citizens have legitimate expectations of pri-
vacy in their prescription records, which many courts have
done, the Fourth Amendment requires probable cause and a
warrant before intruding on that interest. Because I believe
that Wiedeman had a legitimate expectation of privacy in
her prescription records, she was entitled to challenge the
search of these records without a warrant and her challenge
had merit.
The Fourth Amendment does not prevent law enforce-
ment agents from searching private information for a criminal
investigation if the agents comply with its procedural protec-
tions of that information. I think most Nebraskans will be
surprised to learn that by filling their prescription orders, they
have publicly disclosed the medical information revealed by
those orders. They likely did not suspect that a prosecutor,
without any judicial oversight, could obtain their prescription
records merely by issuing a subpoena. For these reasons, I
cannot join the majority’s opinion.
27
See, Burger, supra note 18; Stone v. Stow, 64 Ohio St. 3d 156, 593 N.E.2d
294 (1992).
Mary K ay Young, an individual, appellant, v.
Govier & Milone, L.L.P., et al., appellees.
___ N.W.2d ___
Filed July 12, 2013. No. S-11-959.
1. Summary Judgment: Appeal and Error. An appellate court will affirm a lower
court’s grant of summary judgment if the pleadings and admitted evidence show
Nebraska Advance Sheets
YOUNG v. GOVIER & MILONE 225
Cite as 286 Neb. 224that there is no genuine issue as to any material facts or as to the ultimate infer-
ences that may be drawn from those facts and that the moving party is entitled to
judgment as a matter of law.
2. Judges: Recusal: Appeal and Error. A motion requesting a judge to recuse
himself or herself on the ground of bias or prejudice is addressed to the discretion
of the judge, and an order overruling such a motion will be affirmed on appeal
unless the record establishes bias or prejudice as a matter of law.
3. Attorney and Client: Malpractice: Negligence: Proof. A client who has agreed
to the settlement of an action is not barred from recovering against his or her
attorney for malpractice if the client can establish that the settlement agreement
was the product of the attorney’s negligence.
4. Malpractice: Attorney and Client: Negligence: Proof: Proximate Cause:
Damages. In a civil action for legal malpractice, a plaintiff alleging professional
negligence on the part of an attorney must prove three elements: (1) the attor-
ney’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 is that the attorney exercise such skill, diligence, and knowl-
edge as that commonly possessed by attorneys acting in similar circumstances.
6. ____: ____. Although the general standard of an attorney’s conduct is established
by law, the question of what an attorney’s specific conduct should be in a particu-
lar case and whether an attorney’s conduct fell below that specific standard is a
question of fact.
7. Attorney and Client: Expert Witnesses. Expert testimony is generally required
to establish an attorney’s standard of conduct in a particular circumstance and
that the attorney’s conduct was not in conformity therewith.
8. Summary Judgment. Summary judgment proceedings do not resolve factual
issues, but instead determine whether there is a material issue of fact in dispute.
9. Summary Judgment: Expert Witnesses: Testimony. A conflict of expert testi-
mony regarding an issue of fact establishes a genuine issue of material fact which
precludes summary judgment.
10. Malpractice: Attorney and Client: Negligence: Proof. In an action for legal
malpractice, the plaintiff must establish that but for the alleged negligence
of the attorney, the plaintiff would have obtained a more favorable judgment
or settlement.
11. Res Judicata. The doctrine of res judicata, or claim preclusion, bars the relitiga-
tion of a matter that has been directly addressed or necessarily included in a for-
mer adjudication if (1) the former judgment was rendered by a court of competent
jurisdiction, (2) the former judgment was a final judgment, (3) the former judg-
ment was on the merits, and (4) the same parties or their privies were involved in
both actions.
12. Res Judicata: Judgments: Collateral Attack. Res judicata will not preclude a
second suit between the same parties if the forum in which the first action was
brought did not have jurisdiction to adjudicate the action; stated another way,
judgments entered by a court without jurisdiction are void and subject to collat-
eral attack.
Nebraska Advance Sheets
226 286 NEBRASKA REPORTS
13. Jurisdiction: Words and Phrases. Personal jurisdiction is the power of a tribu-
nal to subject and bind a particular person or entity to its decisions.
14. ____: ____. Subject matter jurisdiction is the power of a tribunal to hear and
determine a case in the general class or category to which the proceedings in
question belong and to deal with the general subject matter involved.
15. Res Judicata: Judgments. Summary judgments, judgments on a directed verdict,
judgments after trial, default judgments, and consent judgments are all generally
considered to be on the merits for purposes of res judicata.
16. Judges: Recusal. Under the Nebraska Revised Code of Judicial Conduct, a judge
must recuse himself or herself from a case if the judge’s impartiality might rea-
sonably be questioned.
17. Judges: Recusal: Proof. In order to demonstrate that a trial judge should have
recused himself or herself, the moving party must demonstrate that a reason-
able person who knew the circumstances of the case would question the judge’s
impartiality under an objective standard of reasonableness, even though no actual
bias or prejudice was shown.
Appeal from the District Court for Douglas County: P eter
C. Bataillon, Judge. Affirmed.
James D. Sherrets, Diana J. Vogt, and Thomas D. Prickett,
of Sherrets, Bruno & Vogt, L.L.C., for appellant.
James M. Bausch and Mary Kay O’Connor, of Cline,
Williams, Wright, Johnson & Oldfather, L.L.P., for appel-
lees Baird, Holm, McEachen, Pedersen, Hamann & Strasheim,
L.L.P., et al.
William M. Lamson, Jr., and Cathy S. Trent-Vilim, of
Lamson, Dugan & Murray, L.L.P., for appellees Govier &
Milone, L.L.P., and Pamela Hogenson Govier.
Heavican, C.J., Connolly, Stephan, McCormack, and
Cassel, JJ.
Stephan, J.
In this professional negligence case, Mary Kay Young,
formerly Mary Kay Davis, filed a complaint against several
law firms and individual attorneys who represented her in
a marital dissolution proceeding. Young’s former husband,
Henry Davis, filed for dissolution in July 2001. While that
action was pending, the parties reconciled. As part of the
reconciliation, they entered into two postmarital agreements
which specified how their property would be divided in the
Nebraska Advance Sheets
YOUNG v. GOVIER & MILONE 227
Cite as 286 Neb. 224event of a future dissolution. At the request of both parties,
the district court for Douglas County approved the postmarital
agreements and dismissed the dissolution proceeding with-
out prejudice.
Subsequently, Young filed a second dissolution proceed-
ing in which she was represented by the law firms and attor-
neys who are the appellees in this case. Eventually, on the
advice of these attorneys, Young accepted a settlement pro-
posal from Davis which was based upon the postmarital agree-
ments approved in the first dissolution action, and the marriage
was dissolved.
Young later brought this action in which she alleged that
her attorneys were negligent in advising her to accept the
settlement proposal from Davis. The district court sustained the
appellees’ motions for summary judgment. It reasoned that the
actions of the attorneys were not the proximate cause of any
damage to Young, because she could not show that her recov-
ery in the dissolution proceeding would have been greater but
for the allegedly negligent advice of the attorneys. The court
specifically found that under the doctrines of res judicata and
judicial estoppel, the order in the first dissolution proceeding
which approved the parties’ postmarital agreements was bind-
ing on the court in the second proceeding.
Young appeals. We affirm the judgment of the district court.
I. BACKGROUND AND PROCEDURAL
HISTORY
Young and Davis were married on January 7, 1989, in
Omaha, Nebraska. Two children were born during the marriage.
1. First Dissolution P roceeding
Davis filed a petition for dissolution of the marriage on July
23, 2001, in the district court for Douglas County. Young filed
a cross-petition on July 26. While this proceeding was pend-
ing, Young and Davis entered into a postmarital agreement
(PMA) in which they acknowledged marital difficulties. The
PMA included covenants given “in consideration of the con-
tinuation of the marriage of the parties, and in consideration
of the mutual promises, waivers and releases” made by each
party. The PMA provided that Davis’ ownership interest in a
Nebraska Advance Sheets
228 286 NEBRASKA REPORTS
meatpacking company would be considered separate nonmari-
tal property and that his salary, earnings, and stock in the com-
pany would always be considered as such.
In the PMA, the parties identified marital property, which
included cash, stocks, life insurance, jewelry, automobiles, a
home, and a residential lot. The total value of the listed prop-
erty was more than $6.28 million. The PMA provided that
in the event of divorce, Young would receive $3 million; the
Jaguar automobile; and her clothing, personal effects, and jew-
elry. Davis would retain the other assets, including the home
and the residential lot. Young agreed to renounce any claim to
Davis’ nonmarital assets. The PMA further provided that Young
would not receive alimony or additional property. According to
the PMA, any marital home acquired by either party during
the continuation of the marriage would be titled in the name of
the person whose separate property was used for the purchase.
If they purchased property together, it was to be titled in both
names as tenants in common without rights of survivorship. All
income earned by either party during the continuation of the
marriage was to remain separate property.
The PMA stated that each party had received the advice of
counsel and was entering into the agreement freely and volun-
tarily, free and clear of any duress or undue influence from the
other party, and with full knowledge and access to any neces-
sary information. If either party was required to bring legal
action against the other to enforce rights under the PMA, or if
either attempted to challenge or set aside any term of the agree-
ment, the prevailing party would be entitled to recover costs
and expenses, including reasonable attorney fees. Each party
agreed that the terms of the agreement were fair, reasonable,
not unconscionable, and equitable.
The PMA was signed on November 26, 2001. On January
9, 2002, Davis was given leave to dismiss his petition for
dissolution without prejudice. Young was given leave to file
an amended cross-petition. In that pleading, filed on January
15, Young alleged that the marriage was irretrievably broken
and should be dissolved. She also sought a declaratory judg-
ment that the PMA was void because it was executed when
she was under stress, duress, and emotional collapse and was
Nebraska Advance Sheets
YOUNG v. GOVIER & MILONE 229
Cite as 286 Neb. 224without control of her decisionmaking abilities. She alleged
that because of her mental state, she did not knowingly, intel-
ligently, or voluntarily execute the PMA, and that it was there-
fore null and void.
While Young’s cross-petition was pending, Young and Davis
participated in private mediation in which neither was repre-
sented by counsel. Young and Davis entered into an amended
postmarital agreement (APMA) on April 17, 2002. The APMA
incorporated the PMA by reference and attachment. Young
signed the APMA against the advice of the attorneys who
represented her in the dissolution proceeding and who are not
parties to this action. The APMA included specific provisions
contemplating continuation of the marriage. It provided that
upon execution of the APMA and the dismissal of all pend-
ing litigation, Young and Davis would again live together with
their children. They agreed to “continue participating in family
counseling and/or family therapy to further facilitate their rec-
onciliation.” The APMA provided that neither it nor the PMA
would be enforceable if Davis initiated a new action for dis-
solution or legal separation within 12 months, unless the action
was based on evidence of Young’s infidelity.
The APMA provided that Davis would pay the state and
federal income taxes on the income Young earned from the
$3 million payment she was to receive under the PMA. Young
was also to receive sole ownership of the parties’ residence.
In the event the marriage was dissolved, Young would receive
alimony of $12,500 per month for up to 10 years unless she
remarried or she or Davis died. The APMA also provided
that Young would receive an additional $1 million on the
fourth anniversary of the execution of the APMA, regardless
of whether the parties were married at the time. The APMA
further provided that if either party contested its terms, the
prevailing party would be responsible for paying all attorney
fees and costs.
The APMA included an agreement by both parties to dis-
miss all pending litigation between them, including “[Young’s]
declaratory judgment claim,” which had been filed at the time
of her cross-petition for dissolution. The APMA further pro-
vided that if counsel for either party desired, the terms of the
Nebraska Advance Sheets
230 286 NEBRASKA REPORTS
PMA and APMA would be submitted for approval to the court
in which the action was pending. Like the PMA, the APMA
included representations that it was executed by both parties
voluntarily, without undue influence, and with a full under-
standing of its terms.
At a hearing on April 23, 2002, Young and Davis presented
a stipulation asking the district court to approve the terms of
the PMA and APMA, to dismiss the dissolution proceeding
without prejudice, and to dismiss Young’s declaratory judg-
ment claim with prejudice. The stipulation expressly stated that
dismissal of Young’s declaratory judgment claim with preju-
dice would mean she would be precluded from challenging
the validity of the PMA and APMA. The stipulation was not
signed by counsel for either party, although both parties were
represented by counsel at the hearing.
Davis’ counsel called both parties to testify regarding their
understanding of the PMA and APMA. Both testified that
they intended to continue in their marital relationship upon
resolving their differences with the PMA and APMA and that
they understood both documents, considered them fair and
reasonable, and were requesting the court’s approval of them.
Young testified that she understood that if her declaratory judg-
ment action was dismissed with prejudice, the APMA would
be binding on her. She also testified that she understood the
declaratory judgment could be dismissed without the court’s
approving the PMA and APMA. Further questioning by the
court elicited testimony from the parties regarding their educa-
tional backgrounds and the absence of any impairment to their
ability to understand the proceedings. In an order entered on
April 24, 2002, the court found that it had jurisdiction of the
parties and the subject matter, approved the PMA and APMA,
dismissed Young’s declaratory judgment claim with prejudice,
and dismissed Young’s amended cross-petition for dissolution
of marriage without prejudice.
2. Second Dissolution P roceeding
Thereafter, the parties lived together for approximately 17
months. During that time, pursuant to the PMA and APMA,
Nebraska Advance Sheets
YOUNG v. GOVIER & MILONE 231
Cite as 286 Neb. 224Davis transferred ownership of the family residence, two auto-
mobiles, and $3 million to Young.
On October 6, 2003, Young filed a petition for dissolution
of the marriage. At that time, she was represented by Pamela
Govier and the law firm of Govier, Milone & Streff, L.L.P.
(Govier firm), and a second law firm that is not a party to this
action. The case was assigned to a district court judge who had
not been involved in the prior proceedings.
In his answer and cross-petition, Davis admitted Young’s
allegations that the marriage was irretrievably broken and that
every reasonable effort to effect reconciliation had been made.
He affirmatively alleged that the PMA and APMA controlled
the determination of alimony and the distribution of real and
personal property and that by virtue of the 2002 order approv-
ing the PMA and APMA, Young was barred from relitigating
property and alimony issues by the doctrines of res judicata,
collateral estoppel, and judicial estoppel. Davis sought custody
of the parties’ minor children, an order granting him exclusive
occupancy of his residence, a decree of dissolution incorporat-
ing the terms of the PMA and APMA, and other relief, includ-
ing attorney fees and costs.
In her reply, Young alleged that the PMA and APMA were
“procured by fraud, duress, and without full disclosure” and
were “unconscionable, unenforceable, void, and against public
policy.” Davis then filed a motion for partial summary judg-
ment, asserting that the enforceability of the PMA and APMA
had already been determined by a court and again asserting that
Young was estopped from challenging their validity.
The court overruled Davis’ motion for summary judgment,
concluding that the PMA and APMA were unenforceable
because they were made in contemplation of divorce, were not
consistent with “statutes regarding post-marital agreements,”
and were contrary to public policy. Davis filed a motion for
reconsideration, which the court also overruled.
The law firm which had originally served as cocounsel
with the Govier firm withdrew from the case, and in August
2004, Young retained the law firm of Baird, Holm, McEachen,
Pedersen, Hamann & Strasheim, L.L.P. (Baird Holm firm), as
Nebraska Advance Sheets
232 286 NEBRASKA REPORTS
cocounsel with the Govier firm. William Dittrick, a partner
in the Baird Holm firm, was primarily responsible for the
firm’s work on the case. Early in his involvement, Dittrick
was advised by Govier that the district court had denied
Davis’ motion for partial summary judgment and had held
that the PMA and APMA were unenforceable. That hold-
ing was reaffirmed in February 2006, when the district court
­
overruled Davis’ motion to bifurcate the trial in order to first
determine the enforceability of the PMA and APMA. The court
reaffirmed its prior order determining that the agreements
were unenforceable.
But approximately 7 months later, the court, on its own
motion, announced that it would reconsider its holding on
Davis’ motion for partial summary judgment. After additional
briefing, the court reversed its prior order and sustained Davis’
motion for partial summary judgment. The court reasoned that
the April 2002 ruling that the PMA and APMA were fair, just,
and not unconscionable is res judicata and bars further litiga-
tion between the parties.
Having prevailed on that critical issue, Davis proposed a
settlement. He offered to abide by the PMA and APMA and to
pay alimony of $12,500 per month for 106 months and child
support of $60,000 per year for two children or $36,000 per
year for one child. He also offered to waive his claim for reim-
bursement of $175,000 in attorney fees and waive any claim
to additional attorney fees based on Young’s challenge of the
APMA. The offer stated that if the matter were not settled,
Davis would seek reimbursement of the $175,000, payment of
all attorney fees and costs expended in defense of the PMA and
APMA, and reduction of alimony for a term equal to one-half
the length of the parties’ actual cohabitation (88 months) less
a credit for the alimony paid during the proceedings. The total
alimony award would extend for an additional 64 months. He
also would seek return of all personal property Young removed
from Davis’ home.
After consultation with her attorneys, Young agreed to
accept the settlement offer. Dittrick stated in a letter dated
December 4, 2006, that Young believed she must accept the
terms of the settlement “because of the incredible economic
Nebraska Advance Sheets
YOUNG v. GOVIER & MILONE 233
Cite as 286 Neb. 224risk confronting her.” At a hearing on December 11, Davis
testified that the parties had agreed that each would pay his or
her own attorney fees and that he would not seek repayment
of $175,000 that had been previously ordered by the court.
Young testified that she understood she had no alternative but
to accept the settlement because she would face bankruptcy if
she went to trial. She said that her attorneys had explained the
situation to her in great detail and that she understood that nei-
ther party would appeal the settlement. The court approved the
settlement agreement and, on December 11, entered an order of
dissolution incorporating the PMA and APMA.
3. P rofessional Negligence P roceeding
On November 14, 2008, Young filed this professional neg-
ligence action against the Baird Holm firm; the Govier firm,
now Govier & Milone, L.L.P.; and individual members of
the firms, including Dittrick and Govier. During the course
of the proceeding, various other individual defendants were
dismissed, and those dismissals are not at issue in this appeal.
Young alleged that the PMA and APMA were unenforce-
able because they were fraudulently procured by Davis, signed
while she was under duress, and void as against public policy.
She alleged that her attorneys, the appellees, were negligent
in advising her about the PMA and APMA and in litigating
issues regarding the enforceability of the agreement. She also
alleged that they charged her excessive fees. She alleged that
as a proximate result of their negligence, she lost the ability to
appeal the enforceability of the PMA and APMA and “the abil-
ity to share in up to one-half of what [the attorneys] informed
her was a $192 Million Marital Estate.” She prayed for judg-
ment against the appellees, jointly and severally; for monetary
damages of $100 million; and for disgorgement of attorney
fees, interest, and costs. The appellees filed answers denying
all claims and asking for dismissal of the action.
The appellees filed motions for summary judgment, and
Young filed a cross-motion for summary judgment. The dis-
trict court overruled Young’s motion, finding that there were
genuine issues of material fact as to whether the appellees
were negligent. However, the court granted the appellees’
Nebraska Advance Sheets
234 286 NEBRASKA REPORTS
motions for summary judgment in part, finding that the order
approving the PMA and APMA entered in the first dissolution
proceeding was binding on the court in the second dissolu-
tion proceeding under the doctrines of res judicata and judi-
cial estoppel. The court determined that even if Young could
establish negligence by the appellees, she could not prove
proximate causation.
The court reserved three issues for trial: (1) whether Govier
failed to convey a $2 million settlement offer to Young, (2)
whether there was a failure to submit counteroffers, and (3)
whether the appellees charged excessive fees. Subsequently, the
district court modified its order and granted summary judgment
for the appellees on the first two of the previously preserved
claims, leaving only the claim regarding excessive attorney
fees for trial. Eventually, the parties reached a settlement as to
the attorney fees and stipulated to the entry of a final judgment,
which was entered on November 1, 2011. Young perfected this
timely appeal.
II. ASSIGNMENTS OF ERROR
Young assigns, summarized and restated, that the district
court erred in (1) overruling her motion for summary judgment
on the issues of negligence and proximate cause, (2) sustain-
ing the appellees’ motion for partial summary judgment based
upon its determination that the PMA and APMA would have
been binding on the court in the second dissolution proceeding
if it had not been settled, and (3) overruling her motions for
recusal of the district judge.
III. 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 those
facts and that the moving party is entitled to judgment as a
matter of law.1
1
Beveridge v. Savage, 285 Neb. 991, 830 N.W.2d 482 (2013).
Nebraska Advance Sheets
YOUNG v. GOVIER & MILONE 235
Cite as 286 Neb. 224[2] A motion requesting a judge to recuse himself or herself
on the ground of bias or prejudice is addressed to the discre-
tion of the judge, and an order overruling such a motion will
be affirmed on appeal unless the record establishes bias or
prejudice as a matter of law.2
IV. ANALYSIS
Professional negligence actions against attorneys typically
involve a “‘case within the case,’” the former being the prior
lawsuit or transaction in which the attorney’s negligence is
alleged to have occurred.3 Here, the case within the case is the
second dissolution proceeding in which Young was represented
by the appellees. She contends that they negligently advised
her to settle that case after the court determined that it was
bound by the first court’s approval of the PMA and APMA
in the first dissolution proceeding. Thus, our “case within the
case” actually has within it yet another case upon which the
issues in this appeal are largely focused.
[3,4] A client who has agreed to the settlement of an action
is not barred from recovering against his or her attorney
for malpractice if the client can establish that the settlement
agreement was the product of the attorney’s negligence.4 In a
civil action for legal malpractice, a plaintiff alleging profes-
sional negligence on the part of an attorney must prove three
elements: (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
It is undisputed that a professional relationship existed between
Young and the appellees. The issues in this appeal involve the
elements of neglect of duty and proximate cause.
2
Huber v. Rohrig, 280 Neb. 868, 791 N.W.2d 590 (2010).
3
See Bowers v. Dougherty, 260 Neb. 74, 85, 615 N.W.2d 449, 457 (2000).
4
Wolski v. Wandel, 275 Neb. 266, 746 N.W.2d 143 (2008); Bruning v. Law
Offices of Ronald J. Palagi, 250 Neb. 677, 551 N.W.2d 266 (1996).
5
Freedom Fin. Group v. Wooley, 280 Neb. 825, 792 N.W.2d 134 (2010);
Radiology Servs. v. Hall, 279 Neb. 553, 780 N.W.2d 17 (2010).
Nebraska Advance Sheets
236 286 NEBRASKA REPORTS
1. Young’s Motion for
Summary Judgment
[5-7] Young argues that the district court erred in denying her
motion for summary judgment and in failing to find that certain
conduct by the lawyers was malpractice which proximately
caused her alleged damage. In a legal malpractice action, the
required standard of conduct is that the attorney exercise such
skill, diligence, and knowledge as that commonly possessed
by attorneys acting in similar circumstances.6 Although the
general standard of an attorney’s conduct is established by
law, the question of what an attorney’s specific conduct should
be in a particular case and whether an attorney’s conduct fell
below that specific standard is a question of fact.7 Expert tes-
timony is generally required to establish an attorney’s standard
of conduct in a particular circumstance and that the attorney’s
conduct was not in conformity therewith.8
[8,9] In support of her motion for summary judgment, Young
presented the affidavits of attorney experts who opined that
the appellees failed to meet the standard of care in advising
Young to accept the settlement offer in the second dissolution
proceeding. In response, the appellees submitted the affidavits
of attorney experts who opined that they did not deviate from
the standard of care. Summary judgment proceedings do not
resolve factual issues, but instead determine whether there is a
material issue of fact in dispute.9 A conflict of expert testimony
regarding an issue of fact establishes a genuine issue of mate-
rial fact which precludes summary judgment.10 Accordingly,
the district court did not err in overruling Young’s motion for
summary judgment.
6
Radiology Servs. v. Hall, supra note 5; Boyle v. Welsh, 256 Neb. 118, 589
N.W.2d 118 (1999).
7
Radiology Servs. v. Hall, supra note 5; Wolski v. Wandel, supra note 4.
8
Wolski v. Wandel, supra note 4.
9
Farmington Woods Homeowners Assn. v. Wolf, 284 Neb. 280, 817 N.W.2d
758 (2012); Conley v. Brazer, 278 Neb. 508, 772 N.W.2d 545 (2009).
10
See Schiffern v. Niobrara Valley Electric, 250 Neb. 1, 547 N.W.2d 478(1996).
Nebraska Advance Sheets
YOUNG v. GOVIER & MILONE 237
Cite as 286 Neb. 2242. Appellees’ Motions for
Summary Judgment
[10] Young argues that the district court erred in sustaining
the appellees’ motions for summary judgment. This inquiry
focuses on the element of proximate cause. In an action for
legal malpractice, the plaintiff must establish that but for the
alleged negligence of the attorney, the plaintiff would have
obtained a more favorable judgment or settlement.11 The dis-
trict court determined that even if the appellees breached the
standard of care as alleged by Young, she could not have
received a more favorable settlement in the second dissolu-
tion proceeding, because the court was bound to enforce the
PMA and APMA under the doctrines of res judicata and judi-
cial estoppel.
(a) Res Judicata
[11,12] The doctrine of res judicata, or claim preclusion,
bars the relitigation of a matter that has been directly addressed
or necessarily included in a former adjudication if (1) the for-
mer judgment was rendered by a court of competent jurisdic-
tion, (2) the former judgment was a final judgment, (3) the
former judgment was on the merits, and (4) the same parties
or their privies were involved in both actions.12 Res judicata
will not preclude a second suit between the same parties if the
forum in which the first action was brought did not have juris-
diction to adjudicate the action; stated another way, judgments
entered by a court without jurisdiction are void and subject to
collateral attack.13
It is clear that the validity of the PMA and APMA was
directly addressed in the court’s order terminating the first
dissolution proceeding, which included Young’s claim for
11
Bellino v. McGrath North, 274 Neb. 130, 738 N.W.2d 434 (2007).
12
Kiplinger v. Nebraska Dept. of Nat. Resources, 282 Neb. 237, 803 N.W.2d
28 (2011).
13
Ryan v. Ryan, 257 Neb. 682, 600 N.W.2d 739 (1999). See, also, Marshall
v. Marshall, 240 Neb. 322, 482 N.W.2d 1 (1992); Zenker v. Zenker, 161
Neb. 200, 72 N.W.2d 809 (1955); Koch v. County of Dakota, 151 Neb.
506, 38 N.W.2d 397 (1949); 50 C.J.S. Judgments § 931 (2009).
Nebraska Advance Sheets
238 286 NEBRASKA REPORTS
declaratory relief, and that the two dissolution proceedings
involved the same parties. Thus, the focus of our inquiry is
whether the order terminating the first dissolution proceeding
was a final judgment on the merits by a court of competent
jurisdiction.
[13,14] Personal jurisdiction is the power of a tribunal to
subject and bind a particular person or entity to its decisions.14
Subject matter jurisdiction is the power of a tribunal to hear
and determine a case in the general class or category to which
the proceedings in question belong and to deal with the general
subject matter involved.15 It is undisputed that the court had
personal jurisdiction over the parties in the first dissolution
proceeding. The disputed issue in this appeal is whether it had
subject matter jurisdiction to determine the validity of the PMA
and APMA.
There are two possible sources of such jurisdiction: (1) the
Uniform Declaratory Judgments Act16 and (2) the Nebraska
statutes governing dissolution of marriage,17 both of which
were implicitly invoked in the amended cross-petition filed by
Young in the first dissolution proceeding.
In her cross-petition filed in the first dissolution proceeding,
Young requested that the district court exercise its jurisdic-
tion under the Uniform Declaratory Judgments Act and find
the PMA to be void, because it was executed at a time when
she was under stress, duress, and emotional collapse and was
without control of her decisionmaking abilities. She alleged
that because of her mental state, she did not knowingly, intel-
ligently, or voluntarily execute the PMA and that it was there-
fore null and void.
The Uniform Declaratory Judgments Act includes the fol-
lowing grant of subject matter jurisdiction:
14
Abdouch v. Lopez, 285 Neb. 718, 829 N.W.2d 662 (2013).
15
Spady v. Spady, 284 Neb. 885, 824 N.W.2d 366 (2012); Peterson v.
Houston, 284 Neb. 861, 824 N.W.2d 26 (2012).
16
See Neb. Rev. Stat. §§ 25-21,149 to 25-21,164 (Reissue 2008).
17
See Neb. Rev. Stat. §§ 42-347 to 42-386 (Reissue 2008 & Cum. Supp.
2012).
Nebraska Advance Sheets
YOUNG v. GOVIER & MILONE 239
Cite as 286 Neb. 224Courts of record within their respective jurisdictions
shall have power to declare rights, status, and other legal
relations whether or not further relief is or could be
claimed. No action or proceeding shall be open to objec-
tion on the ground that a declaratory judgment or decree
is prayed for. The declaration may be either affirm­ tive
a
or negative in form and effect, and such declarations
shall have the force and effect of a final judgment
or decree.18
This broad authority encompasses the power to determine a
party’s rights under a contract, including a claim that the con-
tract itself is invalid. Section 25-21,150 provides:
Any person interested under a deed, will, written con-
tract or other writings constituting a contract, or whose
rights, status or other legal relations are affected by a
statute, municipal ordinance, contract or franchise, may
have determined any question of construction or validity
arising under the instrument, statute, ordinance, contract,
or franchise and obtain a declaration of rights, status or
other legal relations thereunder.
In the context of domestic relations actions, we have previ-
ously held that a party was entitled to seek declaratory relief
in order to determine rights under an agreement with a for-
mer husband made in contemplation of a divorce which had
occurred in another state.19
As noted, Young specifically sought declaratory relief in the
first dissolution proceeding when she asked the court to declare
the PMA “null and void.” As a court of record, the district
court had subject matter jurisdiction with respect to the claim
for declaratory relief.20 The remaining question is whether the
court actually exercised that jurisdiction.
18
§ 25-21,149.
19
Dorland v. Dorland, 175 Neb. 233, 121 N.W.2d 28 (1963), overruled
on other grounds, Landon v. Pettijohn, 231 Neb. 837, 438 N.W.2d 757(1989).
20
See, Bituminous Casualty Corp. v. Deyle, 234 Neb. 537, 451 N.W.2d 910(1990); § 25-21,149.
Nebraska Advance Sheets
240 286 NEBRASKA REPORTS
While Young’s claims for dissolution of her marriage and
declaratory relief were pending before the court in the first
dissolution proceeding, the parties entered into mediation and
negotiation, which led to the reconciliation of the marriage and
execution of the APMA. They then jointly asked the court to
approve their settlement agreement, which included the PMA
as amended by the APMA. In a written stipulation signed by
both parties, they represented to the district court that they
had “voluntarily, freely and clearly entered into the [PMA and
APMA] without any duress or undue influence from the other
party,” and they acknowledged that the terms of the agree-
ments were “fair, just and not unconscionable.” Young then
testified that she understood approval of the parties’ settlement
would resolve all issues in her claim for declaratory relief
and result in its dismissal with prejudice, meaning she could
not in the future assert that the PMA and APMA were unen-
forceable. The court specifically questioned Young and found
her competent.
[15] We conclude that the court exercised its jurisdiction
under the Uniform Declaratory Judgments Act to approve the
PMA and APMA and that its order constituted a judgment on
the merits denying Young’s claim for a declaration that they
were invalid. We have noted that summary judgments, judg-
ments on a directed verdict, judgments after trial, default judg-
ments, and consent judgments are all generally considered to
be on the merits for purposes of res judicata.21 This was essen-
tially a consent judgment in which the court, at the request of
both parties, made specific findings regarding the validity of
the PMA and APMA and the competency and capacity of the
parties to enter into them. The court dismissed Young’s claim
for declaratory relief with prejudice, just as it would have if it
had found the PMA and APMA to be valid and enforceable in
a contested proceeding.
21
DeVaux v. DeVaux, 245 Neb. 611, 514 N.W.2d 640 (1994) (superseded by
statute on other grounds as stated in Alisha C. v. Jeremy C., 283 Neb. 340,
808 N.W.2d 875 (2012)). See Jack H. Friedenthal et al., Civil Procedure
§ 14.7 (4th ed. 2005).
Nebraska Advance Sheets
YOUNG v. GOVIER & MILONE 241
Cite as 286 Neb. 224Under Neb. Rev. Stat. § 25-601(1) (Reissue 2008), Young
could have dismissed her declaratory judgment action without
prejudice at any time prior to its submission to the court. Had
she done so, the resulting order of dismissal would not have
been a decision on the merits.22 This was no doubt the reason
Young’s lawyer asked her on the witness stand if she under-
stood that the court’s approval of the PMA and APMA would
result in dismissal of the declaratory judgment action with
prejudice and that she had the option of dismissing the action
“without the court approving these documents.” Young testified
that she understood.
In sum, the order approving the PMA and APMA in the
first dissolution proceeding was a final judgment on the mer-
its entered by a court of competent jurisdiction in an action
in which Young and Davis were parties, and it was therefore
binding upon them in the subsequent dissolution action under
the doctrine of res judicata. Because the first court had subject
matter jurisdiction under the Uniform Declaratory Judgments
Act, we need not address whether it also had subject matter
jurisdiction under the dissolution statutes. And because we
conclude that the judgment had preclusive effect under the doc-
trine of res judicata, we need not address whether the doctrine
of judicial estoppel applies.
(b) Public Policy
Young argues that the judgment approving the PMA and
APMA should not be given preclusive effect, because post-
marital agreements are void as against public policy in
Nebraska. This argument confuses the validity of the judg-
ment with the validity of the underlying agreements. As we
have noted, the judgment in the first dissolution proceeding
was entered on the merits by a court of competent jurisdiction
and meets all of the other requirements of res judicata as to
Young. She therefore cannot relitigate the issues determined
by that judgment, including the enforceability and validity of
the PMA and APMA. Thus, even if the PMA and APMA are
22
See Smith v. Lincoln Meadows Homeowners Assn., 267 Neb. 849, 678
N.W.2d 726 (2004).
Nebraska Advance Sheets
242 286 NEBRASKA REPORTS
void as against public policy, an issue we do not decide, their
void nature is inconsequential once a valid final judgment
was entered approving them. No public policy considerations
prevent the first judgment from having preclusive effect under
the facts of this case.
(c) Remaining Arguments
We have considered Young’s remaining arguments in sup-
port of her claim that the judgment in the first dissolution
proceeding should not have preclusive effect and find them to
be without merit. We therefore find no error in the conclusion
of the district court that the judgment in the first dissolution
proceeding was entitled to preclusive effect and that therefore,
the attorneys’ advice that Young accept the settlement offer in
the second proceeding, and thus forgo further litigation of the
issue, could not have been the proximate cause of any injury
or damage.
3. Young’s Motions to R ecuse
After the first district judge assigned to this case had
recused himself, Young filed a motion to recuse the judge to
whom the case had been reassigned. She asserted that the sec-
ond judge had presided over cases in which the appellees had
appeared as attorneys. That motion was overruled. Young then
filed a renewed and expanded motion to recuse, in which she
alleged that the second district judge, prior to his appointment
to the bench, had advocated for causes to which Young and a
group she headed were opposed. That motion was overruled.
Young later filed another renewed motion for recusal, assert-
ing that the judge had shown hostility toward her in several
rulings which were adverse to her position. That motion was
overruled as well. Young assigns that these rulings constitute
reversible error.
[16,17] Under the Nebraska Revised Code of Judicial
Conduct, a judge must recuse himself or herself from a case
if the judge’s impartiality might reasonably be questioned.23
23
In re Interest of Kendra M. et al., 283 Neb. 1014, 814 N.W.2d 747 (2012).
See, also, Neb. Rev. Code of Judicial Conduct § 5-302.11(A).
Nebraska Advance Sheets
YOUNG v. GOVIER & MILONE 243
Cite as 286 Neb. 224In order to demonstrate that a trial judge should have recused
himself or herself, the moving party must demonstrate that a
reasonable person who knew the circumstances of the case
would question the judge’s impartiality under an objective
standard of reasonableness, even though no actual bias or
prejudice was shown.24
Young cites no authority in support of her argument that
recusal is “customary and appropriate” where an attorney is
a party to a case assigned to a judge before whom the attor-
ney has previously appeared.25 As the U.S. Supreme Court
has stated, “‘judicial rulings alone almost never constitute
a valid basis for a bias or partiality motion’” directed to a
trial judge.26 Nor can a judge’s ordinary efforts at courtroom
administration be a basis for bias or partiality.27 We find noth-
ing in the district judge’s rulings in this case which would be
indicative of actual bias or prejudice necessitating recusal. The
fact that the judge and Young took opposite sides on public
policy issues before the judge was appointed to the bench does
not reflect judicial bias or prejudice in a case which has no
relationship to those public policy issues. We conclude that the
district court did not abuse its discretion in overruling Young’s
motions for recusal.
V. CONCLUSION
For the reasons discussed, we find no reversible error and
therefore affirm the judgment of the district court.
Affirmed.
Wright and Miller-Lerman, JJ., not participating.
24
In re Interest of Kendra M. et al., supra note 23.
25
Brief for appellant at 42.
26
Huber v. Rohrig, 280 Neb. 868, 875, 791 N.W.2d 590, 598 (2010) (quoting
Liteky v. United States, 510 U.S. 540, 114 S. Ct. 1147, 127 L. Ed. 2d 474(1994)).
27
Id.