Wolski v. Wandel
746 N.W.2d 143 (2008)
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Rule of Law:
In a legal malpractice action, a plaintiff must present expert testimony that explicitly states the defendant attorney's conduct breached the applicable standard of care; testimony that merely criticizes the attorney's judgment or suggests a different strategy is insufficient to create a genuine issue of material fact to defeat summary judgment.
Facts:
- In 1974 and 1975, Stanley W. Wolski, Jr.'s parents conveyed two tracts of farmland to him.
- Shortly thereafter, on January 14, 1975, Wolski executed a deed transferring the same property to his sister, Josephine Walsh Wandel (formerly Parriott), as "Trustee," though the deed did not specify any trust details.
- On May 29, 1982, Wolski signed a document titled "Amendments of Trust Agreement" which made the trust irrevocable, granted Wolski a life estate in the property, and gave the remainder interest to Parriott.
- In June 2000, Wolski retained attorney Josephine Walsh Wandel to file a lawsuit against Parriott to invalidate the trust and secure full fee simple title to the property for himself.
- During the litigation against Parriott, a guardian ad litem, Thomas Harmon, was appointed for Wolski.
- The case against Parriott was ultimately concluded by a settlement agreement, approved by Harmon, which formally gave Wolski a life estate in the property with the remainder to Parriott.
Procedural Posture:
- Wandel filed a petition for declaratory judgment on behalf of Wolski against Parriott in Cass County District Court.
- During that litigation, the court appointed Thomas Harmon as guardian ad litem for Wolski.
- The underlying action was resolved by a settlement agreement, which the court approved.
- Wolski subsequently commenced a professional negligence action against Wandel in the district court for Douglas County.
- Wandel filed a motion for summary judgment, which the district court granted, dismissing Wolski's action.
- Wolski (appellant) appealed the district court's grant of summary judgment to the Supreme Court of Nebraska.
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Issue:
In a legal malpractice case, does a plaintiff create a genuine issue of material fact sufficient to defeat a motion for summary judgment by offering expert testimony that criticizes the defendant attorney's conduct but fails to explicitly state that the attorney breached the applicable standard of care?
Opinions:
Majority - Stephan, J.
No. A plaintiff in a legal malpractice case fails to create a genuine issue of material fact when their expert testimony criticizes the defendant attorney's professional judgment but does not explicitly state that the attorney's conduct fell below the applicable standard of care. To survive summary judgment, a plaintiff must rebut the defendant attorney's prima facie showing of non-negligence with contradictory expert testimony. Wolski’s expert, Reagan, testified that the underlying case should have been tried and criticized Wandel for not providing certain information to the guardian ad litem. However, Reagan never explicitly opined that Wandel’s conduct breached the standard of care. The court reasoned that a mere difference of opinion between lawyers about the merits of a case does not establish negligence. As Wandel presented expert testimony from Michael D. Jones stating she met the standard of care, Wolski’s failure to offer a direct counter-opinion was fatal to his claim.
Analysis:
This case reinforces the stringent evidentiary requirements for legal malpractice claims in Nebraska, particularly those arising from settlements. It clarifies that a plaintiff cannot survive summary judgment merely by presenting an expert who disagrees with the defendant attorney's strategy; the expert must explicitly opine that the conduct constituted a breach of the professional standard of care. This holding heightens the burden on malpractice plaintiffs and protects attorneys from claims based on hindsight or tactical disagreements. The decision underscores the importance of precise language in expert witness testimony for establishing a triable issue of fact.
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