Brenda R. Rice, appellant,
Terrance A. Poppe, AN INDIVIDUAL, AND MORROW, POPPE, WATERMEIER & LONOWSKI, PC, A LIMITED LIABILITY ORGANIZATION, APPELLEES.
Judgments: Appeal and Error. In a bench trial of a
law action, a trial court's factual findings have the
effect of a jury verdict and will not be set aside on appeal
unless clearly erroneous.
___. In reviewing a judgment awarded in a bench trial of a
law action, an appellate court does not reweigh evidence, but
considers the evidence in the light most favorable to the
successful party and resolves evidentiary conflicts in favor
of the successful party, who is entitled to every reasonable
inference deducible from the evidence.
Malpractice: Attorney and Client: Negligence: Proof:
Proximate Cause: Damages. To succeed in a legal
malpractice claim, a plaintiff must ultimately 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 plaintiff.
Malpractice: Attorney and Client. A client
cannot recover for malpractice (1) when the client failed to
follow the attorney's reasonable advice, (2) when the
client directed the attorney's actions in a matter and
the attorney acted in accordance with the client's
instruction, and (3) when the client misrepresented material
facts upon which the attorney relied.
Malpractice: Negligence: Proximate Cause. A
plaintiff's contributory negligence is a defense in a
malpractice action when it contributed to the
professional's inability to meet the standard of care and
was a proximate cause of the plaintiff's injury.
Malpractice: Attorney and Client: Negligence:
Proximate Cause. A client's negligence in a
legal malpractice case is sometimes more [302 Neb. 644]
relevant to negating the proximate causation element of the
claim than to showing that the plaintiff's negligence was
a contributing cause to the plaintiff's injury.
from the District Court for Lancaster County: James G. Kube,
R. Welsh and Christopher Welsh, of Welsh & Welsh. PC,
L.L.O., for appellant.
Randall L. Goyette and Christopher M. Schmidt, of Baylor
Evnen, L.L.R, for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Funke, Papik, and
A. Poppe represented Brenda R. Rice (Rice) in her divorce
from Dale Rice. Rice subsequently filed a malpractice action
against Poppe. Poppe's motion for summary judgment was
initially granted, but this court reversed. A bench trial was
held at which the district court found in Poppe's favor.
and her husband, Dale, were divorced in 2011. Poppe
represented Rice in the divorce, while Dale was
unrepresented. Poppe testified that it is his practice, when
he first meets with new clients, to ask them a series of
questions about the marriage and the marital estate. Poppe
testified that he would have asked Rice whether there was
'"any life insurance with any cash surrender value
or any life insurance that we need to deal with.'"
Several sheets of notepaper, which Poppe testified [302 Neb.
645] were his notes from this meeting, were offered into
evidence. Life insurance was listed in those notes under a
heading entitled "Assets." A "0"
was next to that entry. Poppe testified that "[z]ero
means [the client] told me no, there is no insurance with
cash value or insurance that we need to deal with. . . . It
means there is no life insurance with cash value or no life
insurance that was an issue."
further testified that his questions are intended to discover
policies even if they do not have cash value, as he needs to
know about anything that "we need to be concerned with
or deal with." Poppe testified that there was no doubt
in his mind that he asked about life insurance at this
initial meeting. According to Poppe, he and Rice met several
times after the initial meeting and at no point did Rice
mention anything about any life insurance policies.
also testified about this meeting, indicating that she did
not recall talking about life insurance at the initial
meeting or subsequently. She further testified that she and
Dale had a conversation about life insurance prior to the
entry of the decree and that it was her intention to keep
Dale as her beneficiary. Rice was not permitted to testify
regarding Dale's intention as to his policy, but she did
testify that it was her belief that they each "retained
right to our policies. To me that meant we retained the right
to keep our beneficiary as well. We could do whatever we
want. . . . We were each other's beneficiary and nothing
changed with that divorce decree, was our understanding - my
upon his discussion with Rice, Poppe prepared a draft
property settlement agreement. According to Rice, she went
"back and forth to [Poppe's] office several
times" about the agreement, and she made several
suggestions that were incorporated into the final agreement.
decree was entered on August 8, 2011. As relevant, the decree
included a property settlement agreement with the following