Shriner v. Friedman Law Offices

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www.nebraska.gov/apps-courts-epub/
04/12/2016 09:05 AM CDT
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
SHRINER v. FRIEDMAN LAW OFFICES
Cite as 23 Neb. Ct. App. 869
Debra A. Shriner, appellant, v.
Friedman Law Offices, P.C., L.L.O.,
and Daniel H. Friedman, appellees.
___ N.W.2d ___
Filed April 12, 2016. No. A-15-051.
1. Summary Judgment. Summary judgment is proper when the pleadings
and evidence admitted at the hearing disclose 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. In reviewing a summary
judgment, an appellate court views the evidence in a light most favor-
able to the party against whom the judgment is granted and gives
such party the benefit of all reasonable inferences deducible from
the evidence.
3. Attorney and Client: Malpractice: Negligence: Proof. A client who
has agreed to the settlement of an action is not barred from recover-
ing against his or her attorney for malpractice if the client can estab-
lish that the settlement agreement was the product of the attorney’s
negligence.
4. Judgments: Res Judicata. The doctrine of res judicata, now called
claim preclusion, bars litigation of any claim that has been directly
addressed or necessarily included in a former adjudication, as long as
(1) the former judgment was rendered by a court of competent jurisdic-
tion, (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.
5. Res Judicata. Claim preclusion does not apply to permissive cross-
claims that could have been raised in a former action but were not.
6. Judgments: Collateral Estoppel. Issue preclusion applies where (1)
an identical issue was decided in a prior action, (2) the prior action
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SHRINER v. FRIEDMAN LAW OFFICES
Cite as 23 Neb. Ct. App. 869
resulted in a final judgment on the merits, (3) the party against whom
the doctrine is to be applied was a party or was in privity with a party
to the prior action, and (4) there was an opportunity to fully and fairly
litigate the issue in the prior action.
7. 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 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.
8. Estoppel. The doctrine of judicial estoppel prohibits one who has suc-
cessfully and unequivocally asserted a position in a prior proceeding
from asserting an inconsistent position in a subsequent proceeding.
9. Equity: Estoppel. The elements of equitable estoppel are, as to the
party estopped, (1) conduct which amounts to a false representation or
concealment of material facts, or at least which is calculated to convey
the impression that the facts are otherwise than, and inconsistent with,
those which the party subsequently attempts to assert; (2) the intention,
or at least the expectation, that such conduct shall be acted upon by, or
influence, the other party or other persons; and (3) knowledge, actual or
constructive, of the real facts.
10. ____: ____. The elements of equitable estoppel are, as to the party
invoking the doctrine, (1) lack of knowledge and of the means of
knowledge of the truth as to the facts in question; (2) reliance, in good
faith, upon the conduct or statements of the party to be estopped; and
(3) action or inaction based thereon of such a character as to change the
position or status of the party claiming the estoppel, to his or her injury,
detriment, or prejudice.
11. Summary Judgment: Final Orders: Appeal and Error. Although
the denial of a motion for summary judgment, standing alone, is not a
final, appealable order, when adverse parties have each moved for sum-
mary judgment and the trial court has sustained one of the motions, the
reviewing court obtains jurisdiction over both motions and may deter-
mine the controversy which is the subject of those motions or make an
order specifying the facts which appear without substantial controversy
and direct such further proceedings as it deems just.
12. Malpractice: Testimony. Where a mediator’s testimony is relevant to
disproving a claim or complaint of professional misconduct or malprac-
tice filed against a representative of a mediation party based on conduct
occurring during a mediation, the testimony falls within an exception to
the mediation communications privilege.
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Decisions of the Nebraska Court of A ppeals
23 Nebraska A ppellate R eports
SHRINER v. FRIEDMAN LAW OFFICES
Cite as 23 Neb. Ct. App. 869
Appeal from the District Court for Lancaster County:
William B. Zastera, Judge. Affirmed in part, and in part
reversed and remanded for further proceedings.
James D. Sherrets and Jared C. Olson, of Sherrets, Bruno &
Vogt, L.L.C., for appellant.
Shawn D. Renner and Susan K. Sapp, of Cline, Williams,
Wright, Johnson & Oldfather, L.L.P., for appellees.
Moore, Chief Judge, and Inbody and Bishop, Judges.
Bishop, Judge.
I. INTRODUCTION
Debra A. Shriner filed a legal malpractice action in the
district court for Lancaster County, Nebraska, against attor-
ney Daniel H. Friedman and his law firm, Friedman Law
Offices, P.C., L.L.O., arising out of Friedman’s representation
of Shriner in an underlying personal injury action filed in Hall
County, Nebraska. The name “Friedman” is used herein to
refer to Friedman and to Friedman Law Offices collectively as
well as to Friedman individually. In Shriner’s legal malpractice
action, she alleged that Friedman coerced her into accepting a
settlement offer of $45,000 in the underlying action and that he
breached the standard of care for an attorney by, among other
things, failing to properly value and prosecute her claim and
advising her to accept the settlement offer.
After Shriner and Friedman filed motions for summary judg-
ment in the legal malpractice action, the district court entered
summary judgment in Friedman’s favor. The court determined
that Shriner voluntarily agreed to settle the underlying action
and, furthermore, that she ratified the settlement agreement
by accepting the settlement proceeds. According to the dis-
trict court, Shriner could not then “claim to have been forced,
pressured and/or coerced” into settling the underlying claim.
Shriner timely appealed to this court.
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SHRINER v. FRIEDMAN LAW OFFICES
Cite as 23 Neb. Ct. App. 869
As we explain below, we reverse the district court’s judg-
ment insofar as it granted Friedman’s motion for summary
judgment, but we affirm the district court’s judgment insofar
as it denied Shriner’s cross-motion for summary judgment.
Because it is likely to arise on remand, we also address
Shriner’s argument that testimony from the mediator of the
settlement in the underlying action was privileged. We deter-
mine the testimony fell within an exception to the privilege
and was admissible.
II. BACKGROUND
On December 29, 2006, in Grand Island, Nebraska, a
truck driven by Randall Svoboda, an employee of Cloudburst
Underground Sprinkler Systems, Inc. (Cloudburst), struck the
passenger-side rear quarter panel of Shriner’s vehicle as she
passed through an intersection. As a result of the collision,
Shriner’s vehicle spun around, coming to rest facing the oppo-
site direction of travel. According to Shriner, the collision
resulted in injuries to her person, damage to her vehicle, ongo-
ing medical expenses, and lost wages.
Following her accident, Shriner had contact with two law
firms, Sokolove Law, LLC (Sokolove), and Underhill &
Underhill, P.C. (Underhill), before ultimately being referred
to Friedman for representation. In April 2010, Shriner retained
Friedman to represent her pursuant to a contingent fee arrange-
ment in which Friedman would receive 331⁄3 percent of any
recovery from Svoboda and Cloudburst. Allegedly unknown
to Shriner was a fee-splitting arrangement among Friedman,
Sokolove, and Underhill in which the three law firms agreed to
share any attorney fees.
On June 14, 2010, Friedman filed suit on Shriner’s behalf
against Svoboda and Cloudburst in the district court for
Hall County, seeking damages arising out of the collision.
On July 12, 2012, the parties to the personal injury action
attended a mediation with mediator Matthew Miller. During
the mediation, Svoboda and Cloudburst’s insurer authorized a
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SHRINER v. FRIEDMAN LAW OFFICES
Cite as 23 Neb. Ct. App. 869
settlement offer of $45,000, which Friedman allegedly advised
Shriner to accept.
According to Shriner’s amended complaint in her legal
malpractice action, Friedman told her that if she did not
accept the settlement offer, Friedman would no longer advance
litigation costs for her case. Specifically, to proceed to trial,
Shriner would be required to pay for deposing up to four
medical professionals, anticipated to cost $3,000 to $5,000
per witness. According to Shriner, although she was indigent
and informed Friedman she desired to take the case to trial,
Friedman persisted. As described in her amended complaint,
Shriner “relented under the pressure and duress and ‘told . . .
Friedman, in anger, that if that’s all [she] had to get, that’s what
[she]’d have to get.’” Friedman then accepted the $45,000
settlement offer on Shriner’s behalf.
Six days after the mediation, Shriner informed Friedman she
would not sign a release or accept the proceeds of the settle-
ment reached during the mediation. Thereafter, Friedman filed
a motion to withdraw as Shriner’s counsel of record in the per-
sonal injury action, and Svoboda and Cloudburst filed a motion
to enforce the settlement agreement.
On August 9, 2012, the district court for Hall County heard
both motions. At the hearing, Shriner appeared with a new
attorney, John Sellers, and testified in opposition to Friedman’s
motion to withdraw. After hearing Shriner’s testimony, the
court granted the motion to withdraw; it then turned to the
issue of the motion to enforce the settlement agreement. Sellers
requested an opportunity either to recall Shriner as a witness or
to obtain her written affidavit. The court questioned whether
Shriner’s testimony was necessary if her prior attorney had
apparent authority to accept the settlement offer at the media-
tion. The court indicated that Sellers could present evidence
but cautioned, “I think you’re kind of climbing a hill.” Sellers
submitted no evidence, and the court granted the motion to
enforce the settlement agreement.
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SHRINER v. FRIEDMAN LAW OFFICES
Cite as 23 Neb. Ct. App. 869
On October 15, 2012, Svoboda and Cloudburst’s insurer
filed a complaint for interpleader and declaratory judgment in
the district court for Hall County. Named as defendants were
Shriner, “Herbert J. Friedman d/b/a Friedman Law Offices,”
and two companies with alleged claims to portions of the
settlement proceeds. The insurer sought to deposit the settle-
ment funds of $45,000 with the court clerk for distribution
among the defendants in exchange for an order releasing it and
its insureds from liability in connection with Shriner’s personal
injury claim. The insurer set forth the grounds for the various
defendants’ claims to the settlement proceeds; in particular, the
insurer alleged that Friedman asserted an attorney’s lien pursu-
ant to Neb. Rev. Stat. § 7-108 (Reissue 2012).
The district court for Hall County directed the insurer
to deposit the settlement proceeds with the court clerk and
released Svoboda, Cloudburst, and their insurer from liability.
Shortly thereafter, Shriner, who was represented by Sellers in
the interpleader action, filed a “Motion to Approve Settlement
and Final Order,” in which she alleged that the remain-
ing parties to the interpleader action had reached an agree-
ment regarding their claims to the settlement proceeds, which
claims the defendants wished to resolve without further litiga-
tion. Shriner asked the court to approve disbursement of the
settlement proceeds in the following amounts: (1) $6,666.66
to the State of Nebraska, (2) $3,333 to one company with
an alleged claim, (3) $10,000 to the other such company,
(4) $12,159.49 to Friedman, (5) $1,500 to Sellers, and (6)
$11,340.85 to Shriner.
On March 6, 2013, the district court for Hall County entered
an order approving the agreement and ordering the settlement
proceeds disbursed in the manner Shriner proposed. The court
found the agreement was not unconscionable.
On December 31, 2013, Shriner commenced her legal mal-
practice action in the district court for Lancaster County. In
an amended complaint filed on September 2, 2014, Shriner
set forth much of the background outlined above and further
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SHRINER v. FRIEDMAN LAW OFFICES
Cite as 23 Neb. Ct. App. 869
alleged that at the time of the mediation in the underlying
personal injury action, Cloudburst’s liability was “established
by the facts.” Shriner further alleged that at the time of the
mediation, she had incurred medical expenses in excess of
$67,000, with more than $100,000 in future medical expenses
anticipated, and that two of her treating physicians had opined
that her medical treatment was necessary as a result of the
collision, her injuries were permanent, and she would require
future medical treatment. Shriner alleged that despite these
facts, Friedman coerced her into accepting the “grossly inade­
quate” settlement offer of $45,000.
Shriner’s amended complaint contained four counts: (1)
professional negligence, (2) breach of contract, (3) breach
of implied contract, and (4) fraud. In the professional negli-
gence count, Shriner alleged Friedman breached the standard
of care for an attorney by (i) entering into a “multi-stage
fee-sharing agreement” with multiple law firms, (ii) failing
to properly value and prosecute her claim, (iii) demanding
payment of litigation costs as a prerequisite to continued
representation, and (iv) advising her to accept the $45,000
settlement offer.
In the counts for breach of contract and breach of implied
contract, Shriner alleged she had either an express contract or
an implied contract for representation in the underlying per-
sonal injury action. She alleged Friedman breached the express
or implied contract by (i) failing to competently represent her,
(ii) providing her with unreasonable legal advice at the time
of the mediation, (iii) refusing to advance the costs necessary
to proceed to trial, and (iv) demanding that Shriner advance
litigation costs.
In the fraud count, Shriner alleged that Friedman, in order to
secure a contract for her representation, told Shriner she would
be responsible for costs of litigation only after a settlement or
judgment was obtained even though Friedman knew he would
demand that Shriner “pay costs of the litigation up front if
[Friedman] could not achieve an easy settlement agreement.”
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SHRINER v. FRIEDMAN LAW OFFICES
Cite as 23 Neb. Ct. App. 869
Shriner alleged that she relied on Friedman’s “false statement”
and that she was damaged as a result.
Friedman filed an answer denying the material allegations
of the amended complaint. As affirmative defenses, Friedman
alleged, in pertinent part, that Shriner’s claim was barred
under the doctrines of res judicata, collateral estoppel, equi-
table estoppel, judicial estoppel, waiver, release, and laches.
In support, Friedman relied on Shriner’s failure to present any
evidence in opposition to Svoboda and Cloudburst’s motion
to enforce the settlement agreement in the underlying per-
sonal injury action, as well as Shriner’s agreement with the
defendants in the interpleader action as to disbursement of the
settlement proceeds. Friedman alleged that Shriner accepted
the benefits of the settlement and that her position in the legal
malpractice action was contrary to the positions she took in the
underlying personal injury and interpleader actions.
Shortly after Friedman filed the answer and affirmative
defenses to Shriner’s amended complaint in the legal malprac-
tice action, Friedman filed a motion for summary judgment,
arguing Shriner’s claim was barred under the doctrines of res
judicata, collateral estoppel, equitable estoppel, judicial estop-
pel, and waiver. Friedman submitted exhibits in support of the
motion, including (1) the deposition of Miller, the mediator of
the settlement in the underlying action; (2) the transcript of
the hearing on Svoboda and Cloudburst’s motion to enforce
the settlement in the underlying action; (3) Friedman’s affi-
davit; (4) the retainer agreement executed between Shriner
and Friedman; (5) the joint representation agreement executed
among Shriner, Friedman, and Underhill; and (6) the court fil-
ings and orders from the interpleader action.
Shriner then filed a “Cross-Motion for Summary Judgment.”
She argued that there was no genuine issue of material fact
with respect to any of her claims and that she was entitled
to judgment as a matter of law. In support of her motion,
Shriner offered the following exhibits: (1) the affidavit of
Shane Warner, an expert witness who opined Friedman violated
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the applicable standard of care; (2) Shriner’s affidavit; (3)
Shriner’s deposition and written discovery responses in the
personal injury action; (4) the depositions of Kathleen Neary
and Michael Mullin, Friedman’s expert witnesses in the legal
malpractice action; (5) the deposition of Svoboda in the per-
sonal injury action; and (6) documents summarizing Shriner’s
medical bills.
In opposition to Shriner’s motion for summary judgment,
Friedman offered affidavits from Neary and Mullin summariz-
ing their expert opinions on Shriner’s legal malpractice action.
Both experts opined Friedman’s representation of Shriner fell
within the applicable standard of care. We discuss additional
details of the parties’ summary judgment exhibits as necessary
in our analysis section below.
Before a hearing was held on the motions for summary
judgment, Shriner filed a “Motion in Limine to Exclude
Testimony of . . . Miller,” in which Shriner sought an order
excluding testimony from Miller regarding his role as media-
tor in the underlying action. She maintained that mediation
communications were privileged pursuant to Neb. Rev. Stat.
§ 25-2933 (Reissue 2008) and that Miller’s testimony could
not be considered absent an express waiver from all parties to
the mediation.
Following a brief hearing on the motions for summary judg-
ment at which the court received the submitted exhibits, the
court took the matter under advisement. At the hearing, Shriner
renewed her objection to Miller’s testimony on the basis that it
related privileged mediation communications.
On December 26, 2014, the court entered a written opinion
and order granting Friedman’s motion for summary judgment
and denying Shriner’s motion for summary judgment. The
court did not expressly address Shriner’s motion in limine
to exclude Miller’s testimony, but in its order, the court ref-
erenced Miller’s testimony that there was no question in
his mind that Shriner had validly authorized acceptance of
the settlement.
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SHRINER v. FRIEDMAN LAW OFFICES
Cite as 23 Neb. Ct. App. 869
In addition to relying on Miller’s testimony, the court
noted that in the interpleader action, Shriner “stipulated
that she, [Friedman], and the other parties had reached an
agreement regarding their individual claims to the settlement
proceeds . . . and wished to resolve the matter without fur-
ther litigation.” The court also noted Shriner had “accepted
and retained the monies obtained from the settlement agree-
ment.” Based on these considerations, the court concluded
Shriner “voluntarily agreed” to the settlement and “ratified”
the settlement agreement. The court ruled Shriner could not
“claim to have been forced, pressured and/or coerced into
settling her claim,” and it entered summary judgment in
Friedman’s favor.
Shriner timely appealed to this court.
III. ASSIGNMENTS OF ERROR
Shriner assigns, renumbered and restated, that the district
court erred in (1) granting Friedman’s motion for summary
judgment, (2) denying Shriner’s motion for summary judg-
ment, (3) relying on Miller’s privileged testimony regarding
mediation communications, (4) finding Shriner voluntarily set-
tled her underlying personal injury claim, and (5) not finding
Friedman breached the standard of care.
IV. STANDARD OF REVIEW
[1,2] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose 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. In reviewing a summary judg-
ment, an appellate court views the evidence in a light most
favorable to the party against whom the judgment is granted
and gives such party the benefit of all reasonable inferences
deducible from the evidence. New Tek Mfg. v. Beehner, 275
Neb. 951, 751 N.W.2d 135 (2008).
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SHRINER v. FRIEDMAN LAW OFFICES
Cite as 23 Neb. Ct. App. 869
V. ANALYSIS
Before we address the parties’ arguments, we note the legal
basis of the district court’s summary judgment order is less
than clear. In the order, after discussing Shriner’s conduct in
the underlying personal injury and interpleader actions, the
court concluded that Shriner “voluntarily agreed” to the settle-
ment and that she “ratified” the settlement agreement. The
court then ruled Shriner could not “claim to have been forced,
pressured and/or coerced into settling her claim” and entered
summary judgment in Friedman’s favor. The court cited no
legal authority and provided no explanation for why Shriner’s
acceptance or ratification of the settlement or settlement agree-
ment barred her legal malpractice cause of action against
Friedman. As will be discussed next, the law does not bar such
a cause simply because a client has entered into a settlement
agreement and a court orders it into effect.
[3] The Nebraska Supreme Court has held, “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.” Wolski v. Wandel, 275
Neb. 266, 271, 746 N.W.2d 143, 148-49 (2008). This is true
even where a court has approved the settlement agreement.
Bruning v. Law Offices of Ronald J. Palagi, 250 Neb. 677,
551 N.W.2d 266 (1996). In Bruning, the plaintiff entered into
a workers’ compensation lump-sum settlement agreement and
executed a release of claims. The settlement was approved by
the compensation court, as well as a district court. The plain-
tiff subsequently commenced an action against his workers’
compensation lawyers for professional negligence on several
different grounds, including obtaining a settlement that was
inadequate. The defendants in that case argued they were
entitled to judgment as a matter of law because the execution
of the settlement and release in the underlying action barred
the professional negligence action. The Nebraska Supreme
Court disagreed, setting forth the legal principle above that a
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client is not barred from bringing a malpractice action simply
because he agreed to a settlement. Id.
Applying the legal principles set forth above, neither
Shriner’s settlement of her personal injury claim nor the ruling
by the district court for Hall County that the settlement agree-
ment was enforceable bars Shriner’s legal malpractice action
against Friedman.
However, this case involves an added twist, the interpleader
action. If there is a basis to affirm the district court’s summary
judgment order, it lies somewhere in this procedural wrinkle.
In light of this circumstance, we address the parties’ arguments
in reverse order. We first address Friedman’s arguments that
Shriner is legally or equitably barred from pursuing her legal
malpractice claim. If Friedman is correct, then we may affirm
the district court’s entry of summary judgment in Friedman’s
favor, even if its reasoning may have been wrong or unclear.
See Swift v. Dairyland Ins. Co., 250 Neb. 31, 35, 547 N.W.2d
147, 150 (1996) (“[a] proper result will not be reversed merely
because it was reached for the wrong reasons”).
1. Friedman’s Motion for
Summary Judgment
Friedman argues summary judgment in Friedman’s favor
was proper because Shriner’s legal malpractice claim is
barred under the doctrines of res judicata, collateral estoppel,
judicial estoppel, and equitable estoppel. Although Friedman
also raised the issue of waiver in moving for summary judg-
ment in the district court, Friedman has not raised this issue
on appeal.
(a) Res Judicata or
Claim Preclusion
[4] The doctrine of res judicata, now called claim pre-
clusion, bars litigation of any claim that has been directly
addressed or necessarily included in a former adjudication, as
long as (1) the former judgment was rendered by a court of
competent jurisdiction, (2) the former judgment was a final
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judgment, (3) the former judgment was on the merits, and
(4) the same parties or their privies were involved in both
actions. See Hara v. Reichert, 287 Neb. 577, 843 N.W.2d 812
(2014). Claim preclusion bars litigation not only of those mat-
ters actually litigated, but also of matters which could have
been litigated in the former proceeding. See id. Generally,
judgments entered by agreement or consent are treated as
final judgments on the merits for purposes of claim preclu-
sion. See Blazek v. City of Omaha, 232 Neb. 562, 441 N.W.2d
205 (1989).
Friedman contends Shriner’s legal malpractice action is
barred under the doctrine of claim preclusion because (1) the
district court for Hall County had jurisdiction over the inter-
pleader action, (2) Shriner and Friedman were parties to the
interpleader action, (3) the parties to the interpleader action
agreed to entry of an order that constituted a final judgment
on the merits, and (4) “the issues raised by Shriner’s profes-
sional negligence claims, breach of contract claims, and fraud
claims . . . could have been raised in the Interpleader Action.”
Brief for appellees at 26.
Shriner responds that the interpleader action was not the
proper forum to litigate her legal malpractice claims. She con-
tends that a party to an action in Nebraska is not required to
plead a counterclaim or cross-claim and that therefore, she is
not barred from pursuing her legal malpractice action.
Because Shriner and Friedman (actually, “Herbert J.
Friedman d/b/a Friedman Law Offices,” presumably in privity
with Friedman) were codefendants in the interpleader action,
if Shriner had raised her legal malpractice claims in the inter-
pleader action, it would have been by cross-claim. Under Neb.
Ct. R. Pldg. § 6-1113(g), a cross-claim “may” be filed by one
party against a coparty to an action if the cross-claim (1) arises
“out of the transaction or occurrence that is the subject mat-
ter either of the original action or of a counterclaim therein”
or (2) relates “to any property that is the subject matter of the
original action.”
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As the parties’ arguments suggest, if Shriner could have
filed a cross-claim alleging legal malpractice against Friedman
in the interpleader action, then a conflict arises between the
permissive cross-claim rule embodied in § 6-1113(g) and the
doctrine of claim preclusion. Stated another way, if Shriner
could have filed a cross-claim against Friedman in the inter-
pleader action but failed to do so, we must decide whether
claim preclusion bars her subsequent legal malpractice action.
The first step is to determine whether Shriner could have filed
a cross-claim against Friedman in the interpleader action.
The basic purpose of interpleader is to allow adverse claim-
ants to litigate between or among themselves their conflict-
ing rights or claims to property or a fund, without involving
the stakeholder, who disclaims any interest in the property
or fund. See Ehlers v. Perry, 242 Neb. 208, 494 N.W.2d 325
(1993). In the insurer’s interpleader action in which Shriner
and Friedman were involved, the fund was the $45,000 in
settlement proceeds. Friedman’s claim to a portion of the pro-
ceeds took the form of the attorney’s lien Friedman asserted
pursuant to § 7-108. To enforce the attorney’s lien, Friedman
was required to establish the existence and terms of any fee
contract, the making of any disclosures to the client required
to render a contract enforceable, and the extent and value of
Friedman’s professional services. See Hauptman, O’Brien v.
Turco, 273 Neb. 924, 735 N.W.2d 368 (2007). Evidence of
the extent and value of an attorney’s professional services is
necessary for a court to determine the reasonableness of the
attorney fees. Id. “[A]n attorney fee computed pursuant to
a contingent fee agreement is subject to the same standard
of reasonableness as any other attorney fee.” Id. at 931, 735
N.W.2d at 374.
In light of the elements Friedman was required to prove
to enforce the attorney’s lien, including the extent and value
of Friedman’s professional services, Shriner could have filed
a cross-claim against Friedman alleging legal malpractice.
The transaction or occurrence that was the subject matter
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of Friedman’s attorney’s lien was Friedman’s provision of
professional services to Shriner in the personal injury action.
The claims Shriner asserts in her legal malpractice action
arose out of that same transaction or occurrence. Although
we have not located a Nebraska case involving this proce-
dure, it has been done elsewhere. See Gilbert v. Montlick &
Associates, P.C., 248 Ga. App. 535, 546 S.E.2d 895 (2001)
(former client filed cross-claim for legal malpractice against
former attorney when attorney asserted attorney’s lien in
interpleader action).
Because we conclude Shriner could have filed a cross-claim
against Friedman in the interpleader action, we must now
decide whether claim preclusion bars her legal malpractice
action. We have not located any Nebraska case addressing this
issue; therefore, we look to out-of-state cases for guidance.
Although there is limited contrary authority, see, e.g.,
Citizens Exchange Bank of Pearson v. Kirkland, 256 Ga. 71,
344 S.E.2d 409 (1986), a significant number of states have
declined to apply the doctrine of claim preclusion to permis-
sive cross-claims that were not asserted in a prior action. See,
Israel v. Farmers Mut. Ins. Ass’n of Iowa, 339 N.W.2d 143
(Iowa 1983); Houlihan v. Fimon, 454 N.W.2d 633 (Minn.
App. 1990); Hemme v. Bharti, 183 S.W.3d 593 (Mo. 2006);
Executive Mgmt. v. Ticor Title Ins. Co., 963 P.2d 465 (Nev.
1998); Glover v. Krambeck, 727 N.W.2d 801 (S.D. 2007);
State and County Mut. Fire Ins. v. Miller, 52 S.W.3d 693
(Tex. 2001); Krikava v. Webber, 43 Wash. App. 217, 716 P.2d
916 (1986); Wisconsin Public Service v. Arby Const., 798
N.W.2d 715 (Wis. App. 2011). Federal courts applying Fed.
R. Civ. P. 13(g), which is nearly identical to § 6-1113(g), have
likewise held that a party to an action having a claim in the
nature of a cross-claim has the option to pursue it in a later
action. See, Peterson v. Watt, 666 F.2d 361 (9th Cir. 1982);
Augustin v. Mughal, 521 F.2d 1215 (8th Cir. 1975). See, also,
6 Charles Alan Wright & Arthur R. Miller, Federal Practice
and Procedure § 1431 at 275-76 (3d ed. 2010) (“[a] party
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who decides not to bring a claim under Rule 13(g) will not be
barred by res judicata, waiver, or estoppel from asserting it in
a later action”).
[5] We agree with the approach adopted by a number of
states and federal courts declining to apply claim preclusion
to permissive cross-claims not asserted in a prior action. Part
of the rationale for such an approach is that the contrary rule
would, in essence, render otherwise “permissive” cross-claims
“mandatory.” See Houlihan, supra. Thus, because a contrary
rule would effectively abolish the permissive cross-claim rule
embodied in § 6-1113(g), we conclude that claim preclusion
does not apply to permissive cross-claims that could have been
raised in a former action but were not. Therefore, claim preclu-
sion does not bar Shriner’s legal malpractice action.
(b) Collateral Estoppel or
Issue Preclusion
[6] The doctrine of collateral estoppel, now called issue
preclusion, bars relitigation of a finally determined issue that a
party had a prior opportunity to fully and fairly litigate. Hara v.
Reichert, 287 Neb. 577, 843 N.W.2d 812 (2014). Issue preclu-
sion applies where (1) an identical issue was decided in a prior
action, (2) the prior action resulted in a final judgment on the
merits, (3) the party against whom the doctrine is to be applied
was a party or was in privity with a party to the prior action,
and (4) there was an opportunity to fully and fairly litigate the
issue in the prior action. Id. Issue preclusion applies only to
issues actually litigated. Id.
The only pertinent issues actually litigated in the underlying
personal injury and interpleader actions were (1) the enforce-
ability of the settlement agreement among Shriner, Svoboda,
and Cloudburst and (2) the enforceability of Friedman’s attor-
ney’s lien against a portion of the settlement proceeds. Because
Shriner was a party to the personal injury and interpleader
actions and had the opportunity to fully and fairly litigate
these two issues, the doctrine of issue preclusion bars her from
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relitigating them. Thus, Shriner cannot now argue that the set-
tlement agreement reached in the mediation was unenforceable
or that Friedman was not entitled to the attorney fees received
as part of the judgment in the interpleader action.
[7] Otherwise, however, the issues Shriner raises in her legal
malpractice claims were not litigated in either the personal
injury action or the interpleader action. In a civil action for
legal malpractice, a plaintiff alleging professional negligence
on the part of an attorney must prove three elements: (1) the
attorney’s employment, (2) the attorney’s neglect of a reason-
able duty, and (3) that such negligence resulted in and was the
proximate cause of loss to the client. Gallner v. Larson, 291
Neb. 205, 865 N.W.2d 95 (2015). With the possible excep-
tion of Friedman’s employment as Shriner’s attorney, which is
undisputed, the district court in the underlying actions was not
called upon to address any of these issues.
Friedman’s reliance on Woodward v. Andersen, 261 Neb.
980, 627 N.W.2d 742 (2001), is misplaced. In Woodward, dur-
ing a prior divorce proceeding, a husband and wife entered
into a property settlement agreement that, among other things,
distributed the shares in a closely held corporation between
the parties. The parties also executed a shareholder agreement,
which was incorporated into the divorce decree, providing
that the wife was not indebted to the corporation and that the
corporation had no claims against her. After the divorce decree
became final, the husband sued his former wife for an account-
ing, a return of funds to the corporation, and dissolution of the
corporation. The district court determined that res judicata or
collateral estoppel barred the husband from asserting claims
based on actions taken by the wife prior to the divorce, and the
Nebraska Supreme Court affirmed. Id.
Relying on the doctrine of collateral estoppel, the Nebraska
Supreme Court reasoned that the corporation had been mari-
tal property and that “[in] order to equitably distribute the
property, a necessary determination involved the value of
the corporation.” Id. at 988, 627 N.W.2d at 749. The court
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reasoned that “[a]ny claim that [the husband] or the corpora-
tion had against [the wife] at the time of the divorce would
affect the valuation of the corporation, bringing directly into
issue whether [the wife] improperly withdrew money from the
corporation.” Id. at 988, 627 N.W.2d at 749-50. Based on this
reasoning, the court concluded the husband was collaterally
estopped from relitigating issues concerning the wife’s with-
drawals from the corporation prior to the divorce. Id.
In the present case, no issue in the underlying personal
injury or interpleader actions required the court to address, as
a “necessary determination,” the issues material to Shriner’s
legal malpractice action. See id. at 988, 627 N.W.2d at 749.
Therefore, the doctrine of issue preclusion does not apply to
Shriner’s legal malpractice action, with the exception of the
two issues noted above: (1) the enforceability of the settlement
agreement in the personal injury action and (2) Friedman’s
entitlement to the fees obtained as part of the judgment in the
interpleader action.
We must clarify, however, that simply because Shriner is
precluded from relitigating the enforceability of the settlement
agreement, it does not mean she is precluded from arguing
Friedman breached the standard of care for an attorney by
advising her to accept, or by pressuring her into accepting,
the $45,000 settlement offer. See Wolski v. Wandel, 275 Neb.
266, 271, 746 N.W.2d 143, 148-49 (2008) (“[a] client who has
agreed to the settlement of an action is not barred from recov-
ering against his or her attorney for malpractice if the client
can establish that the settlement agreement was the product of
the attorney’s negligence”).
(c) Judicial Estoppel
[8] The doctrine of judicial estoppel prohibits one who
has successfully and unequivocally asserted a position in a
prior proceeding from asserting an inconsistent position in a
subsequent proceeding. See Burns v. Nielsen, 273 Neb. 724,
732 N.W.2d 640 (2007). The intent behind the doctrine is to
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prevent parties from gaining an advantage by taking one posi-
tion in a proceeding and then switching to a different position
when convenient in a later proceeding. Cleaver-Brooks, Inc. v.
Twin City Fire Ins. Co., 291 Neb. 278, 865 N.W.2d 105 (2015).
For the doctrine to apply, the court in the prior proceeding
must have accepted the inconsistent position; otherwise, no
risk of inconsistent results exists. Burns, supra. The doctrine
is to be applied with caution so as to avoid impinging on the
truth-seeking function of the court, because the doctrine pre-
cludes a contradictory position without examining the truth of
either statement. Cleaver-Brooks, Inc., supra.
Friedman maintains that the doctrine of judicial estoppel
applies because Shriner took positions in the underlying per-
sonal injury and interpleader actions that are inconsistent with
the position she is taking in her legal malpractice action.
Friedman identifies the prior inconsistent positions as follows:
(1) Shriner offered no evidence in opposition to Svoboda and
Cloudburst’s motion to enforce the settlement agreement, (2)
Shriner did not deny the allegations of the insurer’s complaint
in the interpleader action, (3) Shriner did not oppose the
insurer’s request for a broad release of it and its insureds from
liability arising from the accident, and (4) Shriner stipulated to
a disbursement of the settlement proceeds.
Friedman has not persuaded us that judicial estoppel applies
under these circumstances. Regarding Shriner’s failure to offer
evidence in opposition to the motion to enforce the settle-
ment agreement, we note that Shriner’s attorney at the time
requested an opportunity to present evidence but was discour-
aged by the district court from doing so. This conduct did not
qualify as “successfully and unequivocally” asserting a posi-
tion in a prior proceeding. See Burns, 273 Neb. at 734, 732
N.W.2d at 650. The same is true with respect to Shriner’s fail-
ure to deny the insurer’s allegations in the interpleader action
and her failure to object to the insurer’s request for a release
of liability; a failure to object does not qualify as “success-
fully and unequivocally” asserting a position. See id. Accord
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Melcher v. Bank of Madison, 248 Neb. 793, 539 N.W.2d 837
(1995) (declining to apply judicial estoppel to party’s failure
to object to his son’s listing of tractor as one of his assets in
prior bankruptcy proceeding).
Similarly, Shriner’s stipulation to the disbursement of
the settlement proceeds in the interpleader action does not
warrant invoking judicial estoppel. In Vowers & Sons, Inc.
v. Strasheim, 254 Neb. 506, 576 N.W.2d 817 (1998), the
Nebraska Supreme Court held that judicial estoppel did not
apply to a party who settled a negligence action against his
former real estate broker and subsequently pursued an action
against a buyer for breach of a contract to purchase real estate.
Although the negligence action required the party to prove the
unenforceability of the purchase contract, while the breach of
contract action required the party to prove its enforceability,
the Nebraska Supreme Court held that the settlement of the
negligence action did not result in “judicial acceptance of the
claim that [the real estate broker] was negligent . . . or that the
court made any adjudication on the merits of such claim.” Id.
at 514, 576 N.W.2d at 824.
Like the settlement of the negligence action in Vowers &
Sons, 254 Neb. at 514, 576 N.W.2d at 824, Shriner’s agreement
in the interpleader action as to how the settlement proceeds
should be disbursed did not result in “judicial acceptance”
of any position that is inconsistent with her position in the
present action. In approving the agreement in the interpleader
action, the district court for Hall County simply found it was
not unconscionable; the court did not make any finding regard-
ing the quality of Friedman’s representation of Shriner in the
personal injury action. Thus, judicial estoppel does not bar
Shriner’s legal malpractice action.
(d) Equitable Estoppel
[9] The elements of equitable estoppel are, as to the party
estopped, (1) conduct which amounts to a false representation
or concealment of material facts, or at least which is calculated
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to convey the impression that the facts are otherwise than, and
inconsistent with, those which the party subsequently attempts
to assert; (2) the intention, or at least the expectation, that such
conduct shall be acted upon by, or influence, the other party or
other persons; and (3) knowledge, actual or constructive, of the
real facts. Farmington Woods Homeowners Assn. v. Wolf, 284
Neb. 280, 817 N.W.2d 758 (2012).
[10] As to the other party, the elements are (1) lack of
knowledge and of the means of knowledge of the truth as to
the facts in question; (2) reliance, in good faith, upon the con-
duct or statements of the party to be estopped; and (3) action
or inaction based thereon of such a character as to change the
position or status of the party claiming the estoppel, to his or
her injury, detriment, or prejudice. Id.
In support of Friedman’s position that equitable estoppel
applies to Shriner’s legal malpractice action, Friedman con-
tends Shriner’s “silence” in the underlying personal injury
and interpleader actions “precluded [Friedman] from having a
chance to address [Shriner’s] claims at a times [sic] they were
ripe.” Brief for appellees at 35. Friedman contends:
If Shriner had testified that she had not voluntarily
accepted the settlement offer, claimed that Friedman set-
tled her claims without her valid authority, claimed that
Friedman pressured, forced, or coerced her into settling
her claims, claimed that [Friedman] had committed pro-
fessional negligence, breach of contract, or fraud, or
claimed that [Friedman] had otherwise acted improperly
in any way, then [Friedman] would have vigorously dis-
puted such claims in the Interpleader Action.
Id. at 36. Friedman claims prejudice insofar as Friedman is
“now forced to defend this professional malpractice action in
which Shriner is taking positions contrary to the positions she
took” in the underlying actions. Id.
We disagree that equitable estoppel applies under these
circumstances. With regard to Shriner’s failure to present evi-
dence at the hearing on the motion to enforce the settlement
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agreement in the personal injury action, we noted above that the
district court discouraged Shriner from doing so. Regardless,
moments before the hearing on the motion to enforce the settle-
ment agreement, Shriner testified at the hearing on Friedman’s
motion to withdraw as her attorney. Shriner testified that during
the mediation, she “told . . . Friedman, in anger, that if that’s
all [she] had to get, that’s what [she]’d have to get. Because he
was forcing [her] into taking the claim [sic].” Shriner further
testified that Friedman told her “at least twice that he had to
have extra money to go ahead and take [her case] to court.” In
response, Friedman argued that he sought to withdraw because
he could not ethically present to the court Shriner’s argument
that “there wasn’t a mediated settlement.”
Given Shriner’s testimony at the hearing on Friedman’s
motion to withdraw, and Friedman’s reasons for withdraw-
ing as Shriner’s attorney, Friedman’s claim now that he was
unaware of Shriner’s belief that he pressured or coerced her
into settling the personal injury action is not persuasive. Thus,
the requirement that the party claiming equitable estoppel lack
knowledge of the true facts is not present.
With respect to Shriner’s conduct in the interpleader action,
as we discussed above, Shriner was not required to file a
cross-claim against Friedman in that action. That Shriner
chose not to file a cross-claim was not “a false representation
or concealment of material facts.” See Farmington Woods
Homeowners Assn. v. Wolf, 284 Neb. 280, 287, 817 N.W.2d
758, 766 (2012). In addition, that Friedman must defend
against the present legal malpractice action instead of defend-
ing against a cross-claim in the interpleader action does not
qualify as a change of position to Friedman’s injury, detri-
ment, or prejudice.
(e) Conclusion as to Summary Judgment
in Friedman’s Favor
Because we have determined that Shriner’s legal malpractice
action is not barred under the doctrines of claim preclusion,
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issue preclusion, judicial estoppel, or equitable estoppel, we
conclude that summary judgment in Friedman’s favor was
improper. We reverse the district court’s judgment insofar as it
granted Friedman’s motion for summary judgment.
We note Friedman further argues that summary judgment in
Friedman’s favor was proper because (1) Nebraska law pro-
hibits a legal malpractice plaintiff from maintaining separate
claims for breach of contract, breach of implied contract, and
fraud; (2) the existence of an express contract bars Shriner’s
claim for breach of implied contract; and (3) Shriner failed to
present any evidence to support her fraud claim. However, the
record before us does not reflect that Friedman raised any of
these issues before the district court, so we decline to address
them. See First Express Servs. Group v. Easter, 286 Neb. 912,
923, 840 N.W.2d 465, 473 (2013) (“[w]hen a party raises an
issue for the first time on appeal, we will disregard it because
a lower court cannot commit error in resolving an issue never
presented and submitted to it for disposition”).
2. Shriner’s Motion for
Summary Judgment
[11] Although the denial of a motion for summary judgment,
standing alone, is not a final, appealable order, when adverse
parties have each moved for summary judgment and the trial
court has sustained one of the motions, the reviewing court
obtains jurisdiction over both motions and may determine the
controversy which is the subject of those motions or make an
order specifying the facts which appear without substantial
controversy and direct such further proceedings as it deems
just. Vowers & Sons, Inc. v. Strasheim, 254 Neb. 506, 576
N.W.2d 817 (1998). Thus, we have jurisdiction to review the
judgment of the district court in its entirety. Id.
In Shriner’s argument that the district court erred in not
granting her motion for summary judgment, she contends
the evidence shows “beyond any question of material fact”
that Friedman breached the standard of care for an attorney.
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Brief for appellant at 19. She identifies the breaches as
(1) Friedman’s failure to adequately investigate her personal
injury claim, (2) Friedman’s negligence in advising her to
accept the inadequate settlement offer without properly advis-
ing her of the alternatives, (3) Friedman’s execution of the
unethical fee-sharing agreement with Sokolove and Underhill,
and (4) Friedman’s coercion of Shriner into accepting the
settlement offer. Shriner further contends Friedman’s refusal
to continue advancing litigation costs constituted a breach
of contract, a breach of implied contract, or a fraudulent
misrepresentation.
We need not engage in a detailed recitation of the evidence
to reject Shriner’s contention that she is entitled to summary
judgment on these issues. Each of the issues is a factual one
on which the parties presented conflicting expert opinions. See
Guinn v. Murray, 286 Neb. 584, 608-09, 837 N.W.2d 805, 824
(2013) (“the question of what an attorney’s specific conduct
should be in a particular case and whether an attorney’s con-
duct fell below that specific standard is a question of fact”).
Generally, a conflict of expert testimony regarding an issue
of fact establishes a genuine issue of material fact which pre-
cludes summary judgment. Guinn, supra.
We need only briefly summarize the experts’ affidavits to
establish the existence of a genuine issue of material fact. In
support of her motion for summary judgment, Shriner sub-
mitted Warner’s affidavit in which he opined that Friedman
breached the applicable standard of care by failing to properly
value Shriner’s claim, failing to conduct adequate discovery
and investigation, demanding that Shriner pay the costs of
litigation if she rejected the settlement offer, failing to advise
Shriner of a potential conflict of interest, and advising her
to accept the settlement offer “seemingly because he had not
appropriately prepared her case for trial.”
In opposition to Shriner’s motion for summary judgment,
Friedman submitted the affidavits of Neary and Mullin, both
of whom opined that Friedman did not breach the applicable
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standard of care. In Mullin’s affidavit, he noted that Shriner
executed a joint representation agreement acknowledging
the involvement of all three law firms and the cost-sharing
arrangement among them; that in the retainer agreement
Shriner executed with Friedman, she agreed to “‘pay all
necessary costs and expenses incident’” to Friedman’s rep-
resentation of her; and that at the time of the mediation,
there were a number of weaknesses in Shriner’s personal
injury suit, including her preexisting injuries from a prior
car accident and an independent medical examiner’s inability
to make objective findings to substantiate her complaints of
pain. In Neary’s affidavit, she opined that Friedman properly
disclosed the fee-sharing arrangement to Shriner, properly
investigated Shriner’s personal injury claim, properly advised
Shriner during the mediation, and reasonably and appropri-
ately decided to cease advancing litigation costs following
the mediation.
In light of the conflicting expert opinions on the material
issues raised in Shriner’s legal malpractice action, we con-
clude the district court properly denied Shriner’s motion for
summary judgment. Accordingly, we affirm the district court’s
judgment insofar as it denied Shriner’s motion.
3. A pplication of Mediation
Communications Privilege
Although we have determined that summary judgment was
not proper and this cause must be remanded for further pro-
ceedings, we next address the applicability of the mediation
communications privilege, because the issue is likely to arise
on remand. See Combined Insurance v. Shurter, 258 Neb. 958,
607 N.W.2d 492 (2000). Shriner contends the testimony of
mediator Miller was privileged pursuant to § 25-2933 because
it recounted mediation communications.
The Uniform Mediation Act, Neb. Rev. Stat. § 25-2930
et seq. (Reissue 2008), establishes a privilege for mediation
communications, which generally are not subject to discovery
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or admissible in evidence in a proceeding. See § 25-2933.
Under the act, mediation communications are privileged unless
an exception applies, § 25-2935; the privilege is waived,
§ 25-2934(a); or a person is precluded from asserting the privi-
lege, § 25-2934(b) or (c). Shriner and Friedman do not dis-
pute that Miller’s deposition testimony recounted “[m]ediation
communication[s]” as defined by the act, see § 25-2931(2),
or that this action qualifies as a “[p]roceeding” as defined
by the act, see § 25-2931(7). Likewise, there is no dispute
that Shriner, as a mediation party, is permitted to prevent any
other person from disclosing a mediation communication. See
§ 25-2933(b)(1).
In response to Shriner’s contention that Miller’s testimony
is privileged, Friedman argues the testimony falls within the
exception contained in § 25-2935(a), which provides:
There is no privilege under section 25-2933 for a media-
tion communication that is:
....
(6) except as otherwise provided in subsection (c) of
this section, sought or offered to prove or disprove a
claim or complaint of professional misconduct or mal-
practice filed against a mediation party, nonparty partici-
pant, or representative of a party based on conduct occur-
ring during a mediation[.]
Subsection (c) of § 25-2935 provides that “[a] mediator may
not be compelled to provide evidence of a mediation commu-
nication referred to in subdivision (a)(6) . . . of this section.”
Shriner does not specifically address the applicability of the
exception contained in § 25-2935(a)(6) in her reply brief.
We agree with Friedman that Miller’s deposition testimony
falls within the exception contained in § 25-2935(a)(6). In her
amended complaint, Shriner alleged that during the media-
tion, Friedman advised her to accept the $45,000 settlement
offer. She further alleged Friedman told her that if she did not
accept the settlement offer, Friedman would no longer advance
litigation costs for her case. According to Shriner, although
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she was indigent and informed Friedman that she desired to
take the case to trial, Friedman persisted, demanding that she
either accept the offer or pay the costs necessary to proceed
to trial. Shriner alleged that she “relented under the pressure
and duress and ‘told . . . Friedman, in anger, that if that’s all
[she] had to get, that’s what [she]’d have to get.’” Based upon
these allegations, Shriner alleged that Friedman breached the
applicable standard of care by demanding that she pay litiga-
tion costs to proceed to trial and by advising her to accept the
settlement offer.
Miller’s deposition testimony consisted primarily of a
description of his interaction with Shriner and Friedman
during the mediation with respect to the $45,000 settlement
offer. Miller observed that Shriner and Friedman were both
disappointed with the offer. Miller recalled that Friedman
advised Shriner “there was a real chance that they could get
less than [$45,000] if they tried the case” and recalled that
it was Friedman’s opinion Shriner should accept the offer.
Miller also recalled that Friedman told Shriner she would
have to pay the costs of the physicians’ depositions if she
wished to proceed to trial. Miller testified that Shriner left
the conference room and made a telephone call, then returned
and said she would accept the offer. According to Miller, she
was not happy but affirmatively agreed to accept the settle-
ment offer.
[12] Miller’s testimony is relevant to disproving “a claim
or complaint of professional misconduct or malpractice
filed against a . . . representative of a party based on con-
duct occurring during a mediation.” See § 25-2935(a)(6).
Specifically, Friedman seeks to use Miller’s testimony to
disprove Shriner’s allegations that Friedman committed legal
malpractice by coercing her into accepting the settlement
offer and by improperly advising her during the mediation.
Therefore, Miller’s testimony falls within the exception con-
tained in § 25-2935(a)(6). If Miller’s testimony is offered on
remand, caution will be required, since only the portion of a
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mediation communication necessary for the application of the
exception may be admitted. See § 25-2935(d).
Shriner further argues that Miller’s testimony lacked foun-
dation and was prejudicial. The applicability of these eviden-
tiary objections will depend upon Miller’s specific testimony
on remand, so we decline to address them.
VI. CONCLUSION
For the foregoing reasons, we reverse the judgment of the
district court for Lancaster County insofar as it entered sum-
mary judgment in Friedman’s favor; we affirm the judgment
insofar as it denied Shriner’s motion for summary judgment;
and we remand the cause for further proceedings.
A ffirmed in part, and in part reversed and
remanded for further proceedings.