David LeRette, Jr., Individually and as Owner of Master Blaster, Inc., Appellants and Cross-Appellees, Steven H. Howard and Dowd, Howard & Corrigan, L.L.C., Appellees and Cross-Appellants.
Jurisdiction: Appeal and Error. Subject
matter jurisdiction is a question of law for the court, which
requires an appellate court to reach a conclusion independent
of the lower court's decision.
Judgments: Verdicts: Appeal and Error.
Review of a ruling on a motion for judgment notwithstanding
the verdict is de novo on the record.
Trial: Appeal and Error. The standard of
review of a trial court's determination of a request for
sanctions is whether the trial court abused its discretion.
Actions: Parties. The purpose of Neb. Rev.
Stat. § 25-301 (Reissue 2016) is to prevent the
prosecution of actions by persons who have no right, title,
or interest in the cause.
Actions: Parties: Public Policy. Neb. Rev.
Stat. § 25-301 (Reissue 2016) discourages harassing
litigation and keeps litigation within certain bounds in the
interest of sound public policy.
Actions: Parties: Standing. The focus of the
real party in interest inquiry is whether the party has
standing to sue due to some real interest in the cause of
action, or a legal or equitable right, title, or interest in
the subject matter of controversy. The purpose of the inquiry
is to determine whether the party has a legally protectable
interest or right in the controversy that would benefit by
the relief to be granted.
Actions: Pleadings: Parties. The character
in which one is a party to a suit, and the capacity in which
a party sues, is determined from the allegations of the
pleadings and not from the caption alone.
Neb. 129] 8. Judgments:
Verdicts. On a motion for judgment notwithstanding
the verdict, the moving party is deemed to have admitted as
true all relevant evidence admitted that is favorable to the
party against whom the motion is directed, and, further, the
party against whom the motion is directed is entitled to the
benefit of all proper inferences deducible from the relevant
___. To sustain a motion for judgment notwithstanding the
verdict, the court resolves the controversy as a matter of
law and may do so only when the facts are such that
reasonable minds can draw but one conclusion.
Attorneys at Law: Attorney Fees: Conflict of
Interest. An attorney who violates established rules
of professional conduct and performs services despite a
conflict of interest may not receive compensation for such
Judgments: Words and Phrases. An abuse of
discretion occurs when a trial court's decision is
clearly against justice or conscience, reason, and evidence,
or when the decision unfairly deprives the litigant of a
substantial right or a just result.
from the District Court for Douglas County: Timothy P. Burns,
Judge. Affirmed as modified.
J. Palagi and Donna S. Colley, of Law Offices of Ronald J.
Palagi, PC, L.L.O., and Kathy Pate Knickrehm for appellants.
A. Domina, of Domina Law Group, PC, L.L.O., for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, and Funke, JJ.,
and Steinke, District Judge.
Steinke, District Judge.
jury found in favor of the plaintiffs on a claim for legal
malpractice and fraudulent misrepresentation and awarded
$775, 000. After trial, the district court overruled the
plaintiffs' motion for sanctions and partially granted
the defendants' motion for judgment notwithstanding the
verdict (JNOV), [300 Neb. 130] reducing the damages to $235,
968.78. The plaintiffs appeal, and the defendants
cross-appeal, challenging the district court's subject
November 2013, David LeRette, Jr., individually and as the
owner of Master Blaster, Inc., filed a complaint against
Steven H. Howard and his law firm, alleging, among other
things, that Howard committed legal malpractice and breached
his duty as LeRette's attorney when he failed to advise
LeRette of his conflicts of interest and when he acted
adversely to LeRette's interests. A jury trial was held
on the matter in early 2017. From the evidence presented, we
adduce the following set of facts.
Blaster's Judgment Against Anderson
2006, LeRette sold certain assets of his business, Master
Blaster, to Johnnie Anderson. Pursuant to the purchase
agreement, Anderson executed a promissory note to Master
Blaster for $350, 000 with 12 percent annual interest. After
three payments, Anderson defaulted on the note.
Blaster filed suit for the balance owed. During those
proceedings, Master Blaster was represented by Sandra L.
then filed for bankruptcy. Master Blaster's suit against
Anderson was stayed. In the bankruptcy proceeding, Master
Blaster challenged the discharge of Anderson's debt to
Master Blaster. The bankruptcy court ultimately granted
Master Blaster's request after finding that omissions and
mis-statements in Anderson's schedules and statements of
financial affairs were inaccurate, unreliable, and
constituted intentional or reckless indifference to the
truth. Thereafter, the stay was lifted from Master
Blaster's suit against Anderson. In 2009, Master Blaster
secured a judgment against Anderson for $470, 020.39 plus
Neb. 131] Legal Malpractice Action Against Anderson's
bankruptcy attorney thought Anderson's bankruptcy
attorneys may have been negligent in their representation of
Anderson and suggested to LeRette that Anderson could pursue
a legal malpractice claim against them in order to generate
funds that could be used to satisfy his debt to Master
Blaster. Based on this information, LeRette contacted Maass,
who told LeRette that she thought her former classmate,
Howard, might be able to help.
LeRette's approval, Maass called Howard to discuss the
matter. Howard indicated that he was interested in the case.
Thereafter, Maass gave Howard's contact information to
LeRette, who then called Howard.
talking to Howard, LeRette contacted Anderson and asked him
if he was interested in pursuing a legal malpractice claim
against his bankruptcy attorneys. Anderson indicated that he
was, and LeRette and Anderson met at a fast food restaurant
to discuss it. According to LeRette, he told Anderson that he
would hire the attorney.
then called Howard and scheduled a meeting in Howard's
law office for May 1, 2009. Howard told LeRette to bring
Anderson, which he did. At the meeting, Howard advised
LeRette and Anderson that any proceeds from the suit would be
used to satisfy the judgment against Anderson. Howard advised
LeRette not to execute on the judgment against Anderson,
because it would make the case more difficult for Howard.
LeRette did not execute on the judgment. According to
LeRette, Howard told him that he could not be named in the
malpractice action, because ...