Wolski v. Wandel

266 	275 Nebraska reports
sTanley W. WolskI, J r ., appellanT, v .
J osephIne Walsh Wandel , appellee .
746 N.W.2d 143
Filed March 21, 2008. 	No. s-06-1039.
1. Summary Judgment. summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue regarding any material
fact or 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 is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. Attorney and Client: Malpractice: Negligence: Proof. a client who has agreed
to the settlement of an action is not barred from recovering against his or her
attorney for malpractice if the client can establish that the settlement agreement
was the product of the attorney’s negligence.
4. Malpractice: Attorney and Client: Negligence: Proof: Proximate Cause:
Damages. In a civil action for legal malpractice, a plaintiff alleging profes-
sional 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 (damages)
to the client.
5. Attorney and Client. the general rule regarding an attorney’s duty to his or
her client is that the attorney, by accepting employment to give legal advice or
to render other legal services, impliedly agrees to use such skill, prudence, and
diligence as lawyers of ordinary skill and capacity commonly possess and exercise
in the performance of the tasks which they undertake.
6. Malpractice: Attorney and Client. although the general standard of conduct
required of an attorney is established by law, the question of what an attorney’s
specific conduct should be in a particular case and whether an attorney’s conduct
fell below that specific standard is a question of fact.
7. Attorney and Client: Expert Witnesses. expert testimony is generally required
to establish an attorney’s standard of conduct in a particular circumstance and that
the attorney’s conduct was not in conformity therewith.
8. Summary Judgment: Proof. a movant for summary judgment makes a prima
facie case by producing enough evidence to demonstrate that the movant would
be entitled to judgment if the evidence were uncontroverted at trial.
9. ____: ____. once the party moving for summary judgment makes a prima facie
case, the burden to produce evidence showing the existence of a material issue
of fact that prevents judgment as a matter of law shifts to the party opposing
the motion.
10. Attorney and Client: Compromise and Settlement. the decision to settle a con-
troversy is the client’s. In order to meaningfully make that decision, a client must
have the information necessary to assess the risks and benefits of either settling
or proceeding to trial.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:54 AM CST

11. Attorney and Client. a lawyer should exert his or her best efforts to ensure
that the decisions of a client are made only after the client has been informed of
relevant considerations.
appeal 	from 	the 	District 	Court 	for 	Douglas 	County:
J ohn d. harTIgan , J r ., Judge. affirmed.
e. Dean Hascall for appellant.
John r. Douglas, of Cassem, tierney, adams, Gotch &
Douglas, for appellee.
heavIcan, 	C.J., 	W rIghT, 	connolly, 	gerrard, 	sTephan,
M ccorMack, and MIller -lerMan, JJ.
sTephan, J.
this is a professional negligence action brought by stanley
Wolski, Jr., against attorney Josephine Walsh Wandel. Wolski
appeals from an order of the district court for Douglas County
granting Wandel’s motion for summary judgment and dismiss-
ing the action. the question presented is whether there is a
genuine issue of material fact with respect to Wolski’s allega-
tion that Wandel was negligent in representing him in a prior
action which was concluded by a settlement. We conclude that
there is not and affirm the judgment of the district court.
baCkGroUND
underlyIng case
In June 2000, Wolski retained Wandel to represent him in a
dispute with his sister, rosemary parriott, regarding ownership
of real property located in Cass County, Nebraska. the con-
troversy arose from the conveyance of two tracts of farmland
totaling 119 acres. on December 30, 1974, and January 9, 1975,
Wolski’s parents conveyed the two tracts by warranty deed to
Wolski. another warranty deed, dated January 14, 1975, trans-
ferred the same 119 acres from Wolski to parriott as “trustee.”
this deed did not identify the trust, name a beneficiary, or
describe the trust in any other way. Wolski had a longstanding
dispute with parriott regarding income from the property, and
in 2000, he retained Wandel to “break” any trust and secure fee
simple title in the 119 acres purportedly held in trust. Wandel
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268 	275 Nebraska reports
filed a petition for declaratory judgment for Wolski in Cass
County District Court, naming parriott as the sole defendant.
the petition sought to set aside any trust agreement and the
warranty deed from Wolski to parriott. It also requested that
parriott be ordered to give an accounting with respect to funds
generated by the property.
the parties conducted extensive discovery. In her deposi-
tion, parriott testified that the trust was originally drafted by an
attorney retained by her father. In his deposition, that attorney
denied drafting a trust instrument but recalled that at the time
of the conveyance to parriott, Wolski’s parents were concerned
about Wolski’s having title in his name because of “creditors or
marriage or something” and that it was “anticipated that there
would be a deed back” from parriott to Wolski. No trust agree-
ment existing at the time of the 1975 conveyance from Wolski
to parriott was ever located.
parriott testified that the original trust was amended on
May 29, 1982, by a document entitled “amendments of trust
agreement.” the amendment was signed by Wolski as grantor
and parriott as trustee and provides that the trust would be irre-
vocable, that Wolski would have a life estate in the real prop-
erty, and that the remainder would pass to parriott or her lineal
heirs. the signatures on this document were not notarized.
Discovery in the case also disclosed that Wolski was married
in 1982, several months after the date of the amendment. on
september 8, 1987, parriott was appointed guardian and con-
servator for Wolski. In that capacity, she brought a successful
action to annul his marriage. the record reflects that the con-
servatorship was terminated in 1995 and that the guardianship
was terminated in 1997.
During the pendency of the underlying suit against parriott,
Wandel filed a motion for the appointment of a guardian ad
litem for Wolski, alleging that his mother, who had previously
acted as his “natural Guardian,” was unable to attend trial or
assist him due to deterioration of her health. attached to the
motion were medical records showing that Wolski had certain
disabilities affecting his mental capacity and speech. the court
sustained the motion and appointed attorney thomas Harmon
as guardian ad litem for Wolski on august 21, 2001. Upon

his appointment, Harmon conducted an investigation which
included interviews with Wolski, parriott, various members of
their family, and attorneys who had represented the parties in
the past. according to Harmon, Wolski told him that he wanted
to ensure that he always had a place to live and that he would
have money for living expenses.
at a November 2, 2001, hearing, the parties advised the court
that they had settled the case. Under the terms of the settlement
read into the record at that time, the parties agreed to establish a
conservatorship for Wolski, with Harmon to serve as conserva-
tor. Wolski was granted a life estate in the 119-acre tract, with
the remainder to parriott or her lineal heirs. the settlement
also provided that any condemnation award or any other pro-
ceeds received from an invasion of Wolski’s life estate would
be shared equally by Wolski and parriott and that they would
also share the lease payments made with respect to a sand and
gravel lease of the property. Harmon stated on the record that
he believed this settlement agreement was “fair and reasonable
and in [Wolski’s] best interests” and asked the court to approve
it. parriott also asked the court to approve the settlement. the
court received testimony from a clinical psychologist who had
recently examined Wolski and concluded that appointment of a
guardian and conservator for him would be appropriate.
In a subsequent order, the court approved the settlement
agreement and awarded Wolski a life estate in the real property
and awarded the remainder interest to parriott and her lineal
heirs, subject to the condition that mineral lease payments
and condemnation awards with respect to the property were
to be divided equally between the parties. parriott deeded the
property to Harmon, as Wolski’s conservator. through his cur-
rent attorney, Wolski unsuccessfully sought to vacate the order
approving the settlement.
professIonal neglIgence acTIon
Wolski then commenced this action against Wandel, alleg-
ing that she breached her duty to Wolski by “failing to use the
degree of skill and care ordinarily used by Nebraska licensed
attorneys” in several particulars, all relating in some way to
the settlement of the litigation against parriott. Wolski claimed
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270 	275 Nebraska reports
damages based upon the difference in value of fee simple title
to the real property and the life estate which he received in
the settlement. Wandel filed an answer in which she denied
the allegations of negligence and asserted affirmative defenses.
Wandel specifically alleged that “after many discussions with
counsel and his Guardian ad Litem, [Wolski] approved the
settlement agreement” in the prior action.
Wandel moved for summary judgment, and Wolski moved
for partial summary judgment on the issue of liability. the
district court initially denied Wandel’s motion, noting that she
had not made a prima facie showing that she had met the stan-
dard of care, but did not rule on Wolski’s motion at that time.
Wandel then filed a renewed motion for summary judgment,
and the court conducted a hearing on that motion and Wolski’s
motion for partial summary judgment. at this hearing, Wandel
offered the affidavit of attorney Michael D. Jones, which was
received without objection. Wolski offered additional evidence,
which was also received.
the court entered an order denying Wolski’s motion, grant-
ing Wandel’s motion, and dismissing the action. It noted that
Wandel had made a prima facie showing in support of her
motion for summary judgment and that Wolski had failed to
demonstrate the existence of a genuine issue of material fact.
Wolski perfected this timely appeal, which we moved to our
docket on our own motion pursuant to our statutory authority to
regulate the dockets of the appellate courts of this state.1
assIGNMeNts oF error
Wolski assigns, restated, that the district court erred in deter-
mining that there was no genuine issue of material fact as to
whether Wandel breached the standard of care and in granting
Wandel’s motion for summary judgment.
staNDarD oF revIeW
[1,2] summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue
regarding any material fact or the ultimate inferences that may
1 see Neb. rev. stat. § 24-1106(3) (reissue 1995).

be drawn from those facts and that the moving party is entitled
to judgment as a matter of law.2 In reviewing a summary judg-
ment, an appellate court views the evidence in the light most
favorable to the party against whom the judgment is granted
and gives such party the benefit of all reasonable inferences
deducible from the evidence.3
aNaLYsIs
[3,4] a client who has agreed to the settlement of an action is
not barred from recovering against his or her attorney for mal-
practice if the client can establish that the settlement agreement
was the product of the attorney’s negligence.4 Wolski claims
that Wandel was negligent in recommending settlement of the
litigation against parriott instead of proceeding to trial. 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 (damages) to the client.5
[5-7] In this case, we focus on the second element: neglect of
a reasonable duty. the general rule regarding an attorney’s duty
to his or her client is that the attorney, by accepting employment
to give legal advice or to render other legal services, impliedly
agrees to use such skill, prudence, and diligence as lawyers of
ordinary skill and capacity commonly possess and exercise in
the performance of the tasks which they undertake.6 although
this general standard is established by law, the question of what
an attorney’s specific conduct should be in a particular case and
whether an attorney’s conduct fell below that specific standard
2 Erickson v. U-Haul Internat., 274 Neb. 236, 738 N.W.2d 453 (2007).
3 Id.
4 Bruning v. Law Offices of Ronald J. Palagi, 250 Neb. 677, 551 N.W.2d 266
(1996); McWhirt v. Heavey, 250 Neb. 536, 550 N.W.2d 327 (1996).
5 see, Bellino v. McGrath North, 274 Neb. 130, 738 N.W.2d 434 (2007);
Borley Storage & Transfer Co. v. Whitted, 271 Neb. 84, 710 N.W.2d 71
(2006).
6 Bellino v. McGrath North, supra note 5; Baker v. Fabian, Thielen & Thielen,
254 Neb. 697, 578 N.W.2d 446 (1998).
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272 	275 Nebraska reports
is a question of fact.7 expert testimony is generally required to
establish an attorney’s standard of conduct in a particular cir-
cumstance and that the attorney’s conduct was not in conformity
therewith.8 this is so because a jury cannot rationally apply a
general statement of the standard of care unless it is made
aware of what a reasonable attorney would have done in similar
circumstances.9 an exception to this general rule is that where
the evidence and circumstances are such that recognition of the
alleged negligence may be presumed to be within the compre-
hension of laypersons, no expert testimony is required.10
[8] as the party moving for summary judgment, Wandel
was required to make a prima facie case by producing enough
evidence to demonstrate that she would be entitled to judgment
if the evidence were uncontroverted at trial.11 Wandel met this
burden by offering the affidavit of Jones, an attorney practicing
in omaha with experience in the area of business, trusts, pro-
bate, and estate planning. In his affidavit, Jones stated that he
had reviewed documents from the underlying litigation in which
Wandel represented Wolski, as well as certain pleadings and dis-
covery documents generated in this case. based upon this review
and his professional knowledge and experience, Jones expressed
his opinion that the outcome of the underlying litigation was
uncertain, that the settlement was a reasonable resolution of
the dispute, and that Wandel’s recommendation of the settle-
ment “was within the standard of care for attorneys in omaha,
Douglas County, Nebraska at the time of the settlement.” He
further stated: “[I]t is my opinion with a reasonable degree of
certainty that . . . Wandel’s conduct and legal advice to her client
. . . Wolski . . . met or exceeded the standard of care required of
an attorney in omaha, Douglas County, Nebraska at the time of
her representation of . . . Wolski in all material respects.”
7 see Boyle v. Welsh, 256 Neb. 118, 589 N.W.2d 118 (1999).
8 Id.
9 see id., citing Gibson v. Talley, 162 Ga. app. 303, 291 s.e.2d 72 (1982).
10 Boyle v. Welsh, supra note 7.
11 see, Cerny v. Longley, 270 Neb. 706, 708 N.W.2d 219 (2005); Boyle v.
Welsh, supra note 7.

[9] once the party moving for summary judgment makes a
prima facie case, as Wandel did here, the burden to produce
evidence showing the existence of a material issue of fact that
prevents judgment as a matter of law shifts to the party oppos-
ing the motion.12 this case does not fall within the exception
to the general rule requiring expert testimony to prove that
an attorney was negligent, in that a layperson could not be
expected to know, without the assistance of expert testimony,
whether an attorney was negligent in counseling a client to set-
tle litigation of the type involved here. thus, in order to defeat
Wandel’s motion for summary judgment, Wolski was required
to present an expert’s opinion contradicting Jones’ opinion that
Wandel’s performance had met the standard of care.
there is evidence from three attorneys concerning Wandel’s
representation of Wolski. ronald e. reagan, a practicing attor-
ney and retired district judge, was retained by Wolski’s attor-
ney to review documents and “formulate some opinions as to
whether or not . . . Wandel had breached any particular duty or
standard of care.” His deposition was taken by Wandel’s attor-
ney prior to the date of Jones’ affidavit, and thus his testimony
is not directly responsive to Jones’ opinions. reagan testified
that Wandel owed the same duty to Wolski and to Harmon as
Wolski’s guardian ad litem. He criticized Wandel for not provid-
ing certain “relevant information” about the underlying litiga-
tion to Harmon and opined that if Harmon had been given this
information, he would not have concluded that the settlement
was in Wolski’s best interests. reagan testified that, in his opin-
ion, the underlying case should have been tried and that Wolski
would have prevailed. reagan did not specifically express an
opinion that Wandel breached the applicable standard of care.
Harmon testified by deposition, taken prior to that of reagan,
and also by an affidavit sworn after reagan’s deposition. In
the affidavit, Harmon stated that after his appointment as
guardian ad litem, he had a meeting with Wolski and Wandel
and two other meetings with Wolski, to discuss the pending
case and Wolski’s desires concerning its outcome. He stated
that despite Wolski’s speech impediment, Harmon was able to
12 see, Cerny v. Longley, supra note 11; Boyle v. Welsh, supra note 7.
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274 	275 Nebraska reports
“communicate with him sufficiently to understand his desires,
wishes and position on the issues we discussed.” Harmon fur-
ther stated that he conducted several interviews and reviewed
court records before reaching an independent determination that
the settlement was in Wolski’s best interests. Harmon stated
that he had reviewed reagan’s deposition and that reagan was
incorrect regarding the information he possessed at the time of
the settlement. Harmon stated that he had all of the information
which reagan said should have been provided to him, either
as a result of his own investigation or from conversations with
Wandel, with the exception of one document. Harmon stated
that after reviewing this document, which was attached to
reagan’s deposition, he would not have considered it relevant
to the case or the proposed settlement. He concluded: “I there-
fore believe I was aware of all the relevant matters . . . reagan
erroneously assumed [that] I did not know and needed to be
advised of by . . . Wandel.” Harmon did not express an opinion
that Wandel breached the applicable standard of care.
the record also includes Wandel’s deposition, in which
she responded to questions concerning her representation of
Wolski. the deposition does not include any admissions of
professional negligence.
We conclude that Wolski did not meet his burden of dem-
onstrating the existence of a genuine issue of material fact.
reagan’s testimony falls short of this objective. although
reagan expressed criticism of certain aspects of Wandel’s rep-
resentation, he did not specifically opine that her performance
deviated from the applicable standard of care. In a medical
malpractice case, we have held that an expert’s testimony that
a surgical procedure should have been performed in a dif-
ferent manner did not constitute evidence that the defendant
had departed from the applicable standard of care in perform-
ing the surgery in the way that he did.13 We noted that if
the expert believed that there had been a deviation from the
standard of care, “it would have been a simple matter . . . to
have said exactly that.”14 reagan’s “criticism” of Wandel was
13 Kortus v. Jensen, 195 Neb. 261, 237 N.W.2d 845 (1976).
14 Id. at 272, 237 N.W.2d at 852.

similarly insufficient as evidence of professional negligence.
at most, reagan’s testimony establishes that his evaluation
of the underlying case differed from that of Wandel. It is not
uncommon for lawyers to have differing views about the merits
of a contested case, and such a difference of opinion between
lawyers does not necessarily mean that one of them has been
negligent in evaluating the case. reagan’s testimony does not
establish that Wandel’s professional performance fell below
that expected of lawyers of ordinary skill and capacity under
similar circumstances.15
[10,11] the decision to settle a controversy is the client’s.16
In order to meaningfully make that decision, a client must have
the information necessary to assess the risks and benefits of
either settling or proceeding to trial.17 a lawyer should exert
his or her best efforts to ensure that the decisions of a client
are made only after the client has been informed of relevant
considerations.18 Under the Code of professional responsibility
which governed lawyers’ conduct at the time of Wandel’s repre-
sentation, Wandel was required to look to Harmon, as guardian
ad litem, to make decisions concerning settlement on behalf of
Wolski.19 the record includes an expert’s opinion that Wandel
complied with the standard of care in advising Harmon with
regard to the settlement, and Wolski has presented no expert
opinion to the contrary. there is no genuine issue of material
fact as to the allegations of professional negligence.
CoNCLUsIoN
For the reasons discussed, we conclude that the district court
did not err in granting Wandel’s motion for summary judgment
and dismissing this action. We affirm the judgment of the
district court.
affIrMed .
15 see Bellino v. McGrath North, supra note 5.
16 Wood v. McGrath, North, 256 Neb. 109, 589 N.W.2d 103 (1999), citing
Code of professional responsibility, Canon 7, eC 7-7 and 7-8.
17 see id.
18 see id.
19 see Code of professional responsibility, Canon 7, eC 7-12.
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