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Klingelhoefer v. Parker, Grossart, Bahensky & Beucke, L.L.P.

Court of Appeals of Nebraska

June 4, 2013

DONALD G. KLINGELHOEFER, INDIVIDUALLY, AS BENEFICIARY OF THE CONSTANCE K. KLINGELHOEFER REVOCABLE TRUST, AND AS REPRESENTATIVE OF CONSTANCE KLINGELHOEFER, L.L.C., APPELLANT,
v.
PARKER, GROSSART, BAHENSKY & BEUCKE, L.L.P., APPELLEE.

1. Appeal and Error. An appellate court addresses only issues assigned and argued.

2. Standing: Jurisdiction. Standing requires that a litigant have a personal stake in the outcome of a controversy that warrants invocation of a court's jurisdiction and justifies exercise of the court's remedial powers on the litigant's behalf.

3. Standing: Claims: Parties: Proof. To have standing, a litigant must assert its own rights and interests and demonstrate an injury in fact, which is concrete in both a qualitative and temporal sense.

4. Corporations: Derivative Actions. A member of a limited liability company bringing a derivative action must set forth in the complaint what actions were taken to comply with Neb. Rev. Stat. § 21-165 (Reissue 2012).

[20 Neb.App. 826] 5. Trusts: Actions. Beneficiaries of a trust may generally enforce a cause of action that the trustee has against a third party only if the trustee cannot or will not do so.

6. Corporations: Actions: Parties. As a general rule, a shareholder may not bring an action in his or her own name to recover for wrongs done to the corporation or its property. Such a cause of action is in the corporation and not the shareholders. The right of a shareholder to sue is derivative in nature and normally can be brought only in a representative capacity for the corporation.

7. Corporations: Actions: Parties: Proof. If a shareholder can establish an individual cause of action because the harm to the corporation also damaged the shareholder in his or her individual capacity, then the individual can pursue his or her claims.

8. Corporations: Actions: Parties: Proof: Words and Phrases. In order to establish an individual harm, the shareholder must allege a separate and distinct injury or a special duty owed by the party to the individual shareholder. A "special duty" is a duty owed to the shareholder separate and distinct from the duty owed to the entity.

9. Corporations: Actions: Parties: Damages. Even if a shareholder establishes that there was a special duty, he or she may only recover for damages suffered in his or her individual capacity, and not injuries common to other shareholders.

10. Corporations: Trusts: Actions: Parties. The duty a third person owes to an individual trust beneficiary or member of a limited liability company must be separate and distinct from the duty owed to the trust or the limited liability company.

11. Attorney and Client: Parties: Negligence: Liability. The Nebraska Supreme Court set out factors the court is to examine to determine the extent of an attorney's duty, if any, to a third party. These factors include: (1) the extent to which the transaction was intended to affect the third party, (2) the foreseeability of harm, (3) the degree of certainty that the third party suffered injury, (4) the closeness of the connection between the attorney's conduct and the injury suffered, (5) the policy of preventing future harm, and (6) whether recognition of liability under the circumstances would impose an undue burden on the profession.

12. Appeal and Error. In the absence of plain error, an appellate court considers only claimed errors which are both assigned and discussed.

Appeal from the District Court for Buffalo County: Jamese. Doyle IV, Judge.

David J. Lanphier, of Broom, Clarkson, Lanphier & Yamamoto, for appellant.

Anne Marie O'Brien, of Lamson, Dugan & Murray, L.L.P., for appellee.

SIEVERS, PIRTLE, AND RIEDMANN, JUDGES.

[20 Neb.App. 827] RIEDMANN, JUDGE.

I. INTRODUCTION

Donald G. Klingelhoefer appeals the decision of the district court for Buffalo County granting summary judgment in favor of Parker, Grossart, Bahensky & Beucke, L.L.P. (Parker Grossart), and denying Donald's motion to alter or amend the judgment. The district court found Donald lacked standing to bring this professional malpractice action because Parker Grossart owed no duty to Donald as a member of Constance Klingelhoefer, L.L.C. (LLC); as a beneficiary of the Constance K. Klingelhoefer Revocable Trust (Trust); or ...


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