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Rice v. Poppe

Supreme Court of Nebraska

March 22, 2019

Brenda R. Rice, appellant,
v.
Terrance A. Poppe, AN INDIVIDUAL, AND MORROW, POPPE, WATERMEIER & LONOWSKI, PC, A LIMITED LIABILITY ORGANIZATION, APPELLEES.

         1. 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.

         2 ___: ___. 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.

         3. 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.

         4. 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.

         5. 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.

         6. 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.

          Appeal from the District Court for Lancaster County: James G. Kube, Judge.

          James 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 Freudenberg, JJ.

          Heavican, C.J.

         INTRODUCTION

         Terrance 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.[1] A bench trial was held at which the district court found in Poppe's favor. Rice appeals.

         FACTUAL BACKGROUND

         Rice 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."

         Poppe 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.

         Rice 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 understanding."

         Based 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.

         The decree was entered on August 8, 2011. As relevant, the decree included a property settlement agreement with the following ...


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