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Harris v. O'Connor

Supreme Court of Nebraska

January 10, 2014

Keith Harris, Appellant,
v.
Robert E. O'Connor, Jr., Appellee.

Page 51

Appeal from the District Court for Douglas County: Timothy P. Burns, Judge.

Affirmed.

Thomas D. Wulff and Thomas J. Freeman, of Wulff & Freeman, L.L.C., for appellant.

William M. Lamson, Jr., and Jason W. Grams, of Lamson, Dugan & Murray, L.L.P., for appellee.

Heavican, C.J., Wright, Connolly, Stephan, McCormack, Miller-Lerman, and Cassel, JJ.

Syllabus

1. Summary Judgment. Summary judgment is proper if the pleadings and admissible evidence offered at the hearing show tat 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.

2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was

Page 52

granted, and gives that party the benefit of all reasonable inferences deducible from the evidence.

3. 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.

4. Malpractice: Attorney and Client: Negligence: Proof. When a plaintiff asserts attorney malpractice in a civil case, the plaintiff must show that he or she would have been successful in the underlying action but for the attorney's negligence.

Heavican, C.J.

I. INTRODUCTION

Appellant, Keith Harris, brought this action against appellee, Robert E. O'Connor, Jr., for professional malpractice. O'Connor's motion for summary judgment was granted. We affirm.

II. FACTUAL BACKGROUND

Harris, a former captain with the Omaha Police Department, retained O'Connor, an attorney, to represent him in several [287 Neb. 183] actions, including one to obtain disability benefits from the city of Omaha, Nebraska.

A hearing on Harris' petition for benefits was held before the City of Omaha Police and Fire Retirement System Board of Trustees (Board) on January 20, 2011. At the hearing, O'Connor presented five exhibits relating to Harris' medical records and opinions from Harris' treating medical providers. The minutes note that O'Connor asked the Board to take judicial notice of its own rules, regulations, and applicable ordinances. There is no indication either in the minutes or in the audio recording of the hearing whether the Board would do so. Harris' application was denied.

Harris met with O'Connor to discuss how to proceed. Specifically, the two discussed whether the decision of the Board should be appealed to the district court. Harris and O'Connor held e-mail conversations after this meeting. At some point during these conversations, O'Connor expressed concern about whether the record was properly made before the Board because the applicable ordinances were not offered into evidence. According to O'Connor's affidavit, he had concluded prior to the hearing that he could ask the Board to take judicial notice of the applicable ordinances and then request the inclusion of those ordinances in his praecipe for transcript to the district court.

But based on conversations with the Omaha city clerk, O'Connor later decided that going back before the Board might be the better option. In an e-mail dated February 9, 2011, O'Connor wrote to Harris: " I talked first to ... the City Clerk. He is of the opinion ...


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