Rice v. Poppe

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RICE v. POPPE
Cite as 293 Neb. 467
Nebraska Supreme Court
I attest to the accuracy and integrity
of this certified document.
-- Nebraska Reporter of Decisions
Brenda R. Rice, appellant, v. Terrance A.
Poppe, an individual, and Morrow, Poppe,
Watermeier & Lonowski, P.C., a limited
liability organization, appellees.
881 N.W.2d 162
Filed April 28, 2016. 	No. S-15-528.
1. Summary Judgment: Appeal and Error. An appellate court affirms a
lower court’s grant of summary judgment if the pleadings and admitted
evidence show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts and that
the moving party is entitled to judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, an appellate court views
the evidence in the light most favorable to the party against whom the
judgment was granted, and gives that party the benefit of all reasonable
inferences deducible from the evidence.
3. Issue Preclusion. The applicability of claim and issue preclusion is a
question of law.
4. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court resolves the questions independently of the conclusion
reached by the trial court.
5. Summary Judgment: Proof. The party moving for summary judgment
must make a prima facie case by producing enough evidence to show
that the movant is entitled to judgment if the evidence were uncontro-
verted at trial.
6. ____: ____. If the party moving for summary judgment makes a prima
facie case, the burden shifts to the nonmovant to produce evidence
showing the existence of a material issue of fact that prevents judgment
as a matter of law.
7. Malpractice: Attorney and Client: Proof: Negligence: Proximate
Cause. To succeed in a legal malpractice claim, a plaintiff must ulti-
mately prove three elements: (1) the attorney’s employment, (2) the
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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attorney’s neglect of a reasonable duty, and (3) that such negligence
resulted in and was the proximate cause of loss to the plaintiff.
8. Attorney and Client. Attorneys owe their clients the duty to exercise
such skill, diligence, and knowledge as that commonly possessed by
attorneys acting in similar circumstances.
9. Attorney and Client: Compromise and Settlement. Lawyers must
advise clients with respect to settlements with the same skill, knowl-
edge, and diligence with which they pursue all other legal tasks.
10. Malpractice: Attorney and Client. The general standard of an attor-
ney’s conduct is established by law, but whether an attorney’s conduct
fell below the standard in a particular case is a question of fact.
11. Attorney and Client: Expert Witnesses. Expert testimony is generally
required to show whether an attorney’s performance conformed to the
standard of conduct.
12. Malpractice: Attorney and Client: Expert Witnesses: Negligence.
Under the common-knowledge exception, expert testimony is not needed
to show whether an attorney’s performance conformed to the standard
of conduct if the alleged negligence is within the comprehension of
laypersons.
13. Malpractice: Attorney and Client. A client cannot recover in a legal
malpractice case if the client’s own conduct caused his or her injury.
14. ____: ____. In a legal malpractice claim, whether a client’s failure to
read or understand a disputed document is a superseding cause depends
on the facts.
15. Issue Preclusion: Judgments. Issue preclusion applies if (1) an identi-
cal issue was decided in a prior action, (2) the prior action resulted in
a final judgment on the merits, (3) the party against whom the doctrine
is to be applied was a party or was in privity with a party to the prior
action, and (4) there was an opportunity to fully and fairly litigate the
issue in the prior action.
Appeal from the District Court for Lancaster County: Daniel
E. Bryan, Jr., Judge. Reversed and remanded for further
proceedings.
James R. Welsh and Christopher Welsh, of Welsh & Welsh,
P.C., L.L.O., for appellant.
Randall L. Goyette and Colin A. Mues, of Baylor, Evnen,
Curtiss, Grimit & Witt, L.L.P., for appellees.

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Heavican, C.J., Wright, Connolly, Miller-Lerman, and
Cassel, JJ.
Connolly, J.
SUMMARY
In 2011, the district court dissolved the marriage of Brenda
R. Rice and Dale E. Rice. Attorney Terrance A. Poppe rep-
resented Brenda in the dissolution action. Later, Dale died
and Brenda made a claim for the death benefits under life
insurance policies owned by Dale. The court determined that
Brenda was not entitled to the benefits, because she waived
her beneficiary interest under the property settlement agree-
ment. Brenda sued Poppe for legal malpractice, alleging that
he had failed to advise her that the property settlement agree-
ment waived her beneficiary interest in Dale’s life insurance
policies. The trial court sustained Poppe’s motion for summary
judgment, reasoning that Poppe had no duty to advise Brenda
of the legal effect of an unambiguous agreement. We conclude
that Poppe, the summary judgment movant, did not establish
a prima facie case entitling him to judgment as a matter of
law. We therefore reverse the judgment and remand for fur-
ther proceedings.
BACKGROUND
In 2011, Brenda filed a complaint to dissolve her marriage to
Dale. She retained Poppe to represent her.
Brenda and Dale ultimately signed a property settlement
agreement drafted by Poppe. Brenda testified that before she
signed the agreement, Dale told her that he was “‘going to
keep [her] on as [his] beneficiary’” for the life insurance poli-
cies he owned. Brenda testified that Poppe never asked about
the parties’ life insurance beneficiary designations. Nor did
she discuss Dale’s intentions with Poppe before he drafted
the agreement.
In the agreement, Brenda and Dale divided the marital estate
and waived whatever interest they had in certain property
owned by the other spouse. Paragraph VI provided:

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STOCKS, BANK ACCOUNTS, LIFE INSURANCE
POLICICES [sic], PENSION PLANS AND
RETIREMENT PLANS
[Brenda] shall be awarded all interest in all pension
plans, stocks, retirement accounts, 401(k), IRA, life insur-
ance policy and checking or savings account in [Brenda’s]
name, free from any claim of [Dale]. [Dale] shall be
awarded all interest in any pension plans, stocks, retire-
ment accounts, 401(k), IRA, life insurance policy and
checking or savings account in [Dale’s] name, free from
any claim of [Brenda].
Paragraph IX provided:
PROPERTY PROVISIONS AND SETTLEMENT OF
PROPERTY RIGHTS OF PARTIES
It is expressly understood by and between the parties
hereto that the provisions of this agreement relating to the
property and liabilities of each, set aside and allocate to
each party his or her respective portions of the properties
belonging to the parties and of the liabilities of the parties
at the date hereto; and each party acknowledges that the
properties set aside to him or her, less the liabilities so
allocated to him or her, will be in full, complete and final
settlement, release and discharge, as between themselves,
of all rights, claims, interests and obligations of each
party in and to the said properties and the same in their
entirety constitute a full, fair and equitable division and
the partition of their respective rights, claims and interests
in and to the said properties of every kind and nature.
And, in relevant part, paragraph X provided:
WAIVER AND RELEASE OF MARITAL RIGHTS
. . . .
(b) In consideration of the provisions of this agree-
ment, [Brenda] waives and relinquishes any and all inter-
est or rights of any kind, character, or nature whatso-
ever, including but not limited to all rights to elective
share, homestead allowance, exempt property, and family

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allowance in the property of [Dale], and renounces all
benefits which would otherwise pass to [Brenda] from
[Dale] by intestate succession or by virtue of the pro-
visions of any Will executed before this Settlement
Agreement which she, as wife, or as widow, or other-
wise, has had, now has, or might hereafter have against
[Dale], or, in the event of his death, as an heir at law,
surviving spouse, or otherwise. [Brenda] also waives and
relinquishes any and all interest, present and future, in
any and all property, real, personal, or otherwise, now
owned by [Dale] or hereafter acquired, and including all
property set aside for him in this agreement, it being the
intention of the parties that this agreement shall be a full,
final, and complete settlement of all matters in dispute
between the parties hereto.
Brenda reviewed the agreement drafted by Poppe, but, in
her judgment, “[a]t no time did it ever mention anything about
beneficiary designation and at no time did I ever believe that
that language took away beneficiary designation.” She testi-
fied that Poppe did not tell her that the agreement could affect
beneficiary designations on life insurance policies. She did not
raise any concerns herself because “[t]here was nothing in [the
agreement] about beneficiary designation. We did retain our
own policies.”
In August 2011, the district court dissolved Brenda and
Dale’s marriage. The court approved the property settlement
agreement and incorporated it into the decree.
Dale died a week later. Brenda tried to claim the death ben-
efit for two term life insurance policies owned by Dale, only
one of which, with a death benefit of $250,000, concerns this
appeal. The personal representative of Dale’s estate argued that
Brenda had waived her right to the death benefits in the prop-
erty settlement agreement. The trial court agreed and ordered
Brenda to withdraw her claim. Brenda appealed.
We affirmed the determination that Brenda had waived
her interest as a beneficiary of Dale’s life insurance policies

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in Rice v. Webb.1 There, we explained that divorce does not
affect a beneficiary designation in a life insurance policy. But a
spouse may waive a beneficiary interest in the divorce decree.
Synthesizing paragraphs VI, IX, and X of the property settle-
ment agreement, we concluded that Brenda unambiguously
gave up her right to claim the death benefits:
We find no ambiguity in the decree. Under para-
graph VI, the life insurance policies in Dale’s name were
awarded to Dale, and under paragraphs IX and X(b),
Brenda waived and relinquished all interest in property
set aside to Dale. . . . Upon our independent review, we
conclude as a matter of law that under the terms of the
decree, Brenda unambiguously waived her beneficiary
interest in Dale’s life insurance policies.2
In 2014, Brenda filed this legal malpractice action against
Poppe. She alleged that Poppe negligently failed to “advise
[her] that the Agreement removed her as primary beneficiary
on Dale’s life insurance policy.”
Poppe moved to dismiss, arguing that the complaint did not
state a claim upon which relief could be granted and that he
was entitled to judgment as a matter of law. Poppe submit-
ted evidence in support of his motion, so the court converted
the motion to dismiss into a motion for summary judgment. It
informed the parties of this conversion and gave Brenda the
opportunity to offer evidence.
The court entered a summary judgment for Poppe, stating
that “an attorney owes no duty to tell clients something that is
readily apparent to that client.” It reasoned that Brenda did not
need Poppe’s help to interpret the property settlement agree-
ment, because we determined in Rice v. Webb that the agree-
ment was unambiguous.
1 Rice v. Webb, 287 Neb. 712, 844 N.W.2d 290 (2014).
2 Id. at 726-27, 844 N.W.2d at 301.

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ASSIGNMENT OF ERROR
Brenda assigns, consolidated, that the court erred by sustain-
ing Poppe’s motion for summary judgment.
STANDARD OF REVIEW
[1,2] We affirm a lower court’s grant of summary judgment
if the pleadings and admitted evidence show that there is no
genuine issue as to any material facts or as to the ultimate
inferences that may be drawn from the facts and that the mov-
ing party is entitled to judgment as a matter of law.3 In review-
ing a summary judgment, we view the evidence in the light
most favorable to the party against whom the judgment was
granted, and give that party the benefit of all reasonable infer-
ences deducible from the evidence.4
[3,4] The applicability of claim and issue preclusion is a
question of law.5 When reviewing questions of law, we resolve
the questions independently of the conclusion reached by the
trial court.6
ANALYSIS
Legal Malpractice
Brenda argues that Poppe committed malpractice by not
asking what her and Dale’s intentions were concerning their
life insurance beneficiary designations and failing to explain
the effect that the property settlement agreement would have
on those designations. She contends that the “intricate rules
of construction which may render a written settlement agree-
ment that has been incorporated into a decree ‘unambiguous’ to
members of the Nebraska Supreme Court do not apply equally
to the uninitiated layperson.”7 Poppe responds that he had no
3 Hughes v. School Dist. of Aurora, 290 Neb. 47, 858 N.W.2d 590 (2015).
4 Id.
5 McGill v. Lion Place Condo. Assn., 291 Neb. 70, 864 N.W.2d 642 (2015).
6 Id.
7 Brief for appellant at 7.

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duty to inform Brenda that she was waiving her beneficiary
status, because the “fact she was doing so was readily apparent
from the clear language of the Agreement.”8
[5,6] The main purpose of the summary judgment procedure
is to pierce the allegations in the pleadings and show conclu-
sively that the controlling facts are other than as pled.9 The
party moving for summary judgment must make a prima facie
case by producing enough evidence to show that the movant
is entitled to judgment if the evidence were uncontroverted at
trial.10 If the moving party makes a prima facie case, the bur-
den shifts to the nonmovant to produce evidence showing the
existence of a material issue of fact that prevents judgment as
a matter of law.11
[7] To succeed in a legal malpractice claim, a plaintiff must
ultimately prove three elements: (1) the attorney’s employ-
ment, (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.12 Poppe does not dispute that Brenda
employed him. So we turn to whether he neglected a reason-
able duty.
[8,9] Attorneys owe their clients the duty to exercise such
skill, diligence, and knowledge as that commonly possessed
by attorneys acting in similar circumstances.13 We insist that
lawyers advise clients with respect to settlements with the
same skill, knowledge, and diligence with which they pursue
all other legal tasks.14 In order to meaningfully decide whether
to settle a controversy, a client must have the information
8 Brief for appellees at 13.
9 Hughes v. School Dist. of Aurora, supra note 3.
10 Id.
11 Id.
12 Balames v. Ginn, 290 Neb. 682, 861 N.W.2d 684 (2015).
13 See Guinn v. Murray, 286 Neb. 584, 837 N.W.2d 805 (2013).
14 Wood v. McGrath, North, 256 Neb. 109, 589 N.W.2d 103 (1999).

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necessary to assess the risks and benefits of settling or pro-
ceeding to trial.15 And lawyers should make their best efforts to
ensure that the client does not make a decision until the client
has been informed of the relevant considerations.16
[10,11] So Poppe owed Brenda a duty to reasonably advise
her about the property settlement agreement’s effect on her
interests.17 And, as the summary judgment movant, he had the
burden to produce evidence that he did not breach that duty.
The general standard of an attorney’s conduct is established by
law, but whether an attorney’s conduct fell below the standard
in a particular case is a question of fact.18 Expert testimony is
generally required to show whether an attorney’s performance
conformed to the standard of conduct.19 An attorney moving for
summary judgment must generally make a prima facie case by
producing expert testimony that his or her conduct did not fall
below the standard of care.20
[12] Poppe did not offer any expert testimony. We note that
Poppe could have offered his own affidavit stating that he met
the standard of care.21 His failure to do so means that he did
not make a prima facie case unless the common-knowledge
exception applies. Under the common-knowledge exception,
expert testimony is not needed if the alleged negligence is
within the comprehension of laypersons.22 But we do not
believe that whether a lawyer ought to discuss the effect of
15 Wolski v. Wandel, 275 Neb. 266, 746 N.W.2d 143 (2008).
16 Id. See 7A C.J.S. Attorney & Client § 378 (2015).
17 See Balames v. Ginn, supra note 12.
18 Guinn v. Murray, supra note 13.
19 Id.
20 See, Wolski v. Wandel, supra note 15; Boyle v. Welsh, 256 Neb. 118, 589
N.W.2d 118 (1999).
21 See Boyle v. Welsh, supra note 20.
22 See, Wolski v. Wandel, supra note 15; Boyle v. Welsh, supra note 20; 4
Ronald E. Mallen, Legal Malpractice § 37:127 (2016).

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a property settlement agreement on life insurance beneficiary
designations is so obvious that it is within the comprehen-
sion of laypersons. Poppe therefore did not produce evidence
which, if uncontroverted at trial, would show that he did not
neglect a reasonable duty.
[13] Because Poppe has failed to make a prima facie as
to neglect of a reasonable duty, we turn to whether the court
could find as a matter of law that Poppe’s alleged negligence
was not the proximate cause of Brenda’s loss. A client cannot
recover in a legal malpractice case if the client’s own conduct
caused his or her injury.23 In cases revolving around docu-
ments which the client read or could have read, courts have
discussed the client’s failure to discover the error both in terms
of causation and contributory negligence.24 We have noted that
a client’s negligence in a legal malpractice case is often more
relevant to negating the proximate cause element of the claim
than to showing that the client’s negligence was a contributing
cause of the client’s injury.25
A line of cases decided by the Georgia Court of Appeals
illustrates when a client’s failure to read or understand a docu-
ment is the proximate cause of his or her injury arising from
the same document. In Berman v. Rubin,26 an attorney drafted
a property settlement agreement for a client. The agreement
stated that his client had a certain income and, should the client
23 Balames v. Ginn, supra note 12.
24 Compare Marion Partners v. Weatherspoon & Voltz, 215 N.C. App. 357,
716 S.E.2d 29 (2011); Hackers Inc. v. Palmer, 79 Pa. D. & C.4th 485 (Pa.
Com. Pl. 2006); Gorski v. Smith, 812 A.2d 683 (Pa. Super. 2002); Tarleton
v. Arnstein & Lehr, 719 So. 2d 325 (Fla. App. 1998); and Becker v. Port
Dock Four, Inc., 90 Or. App. 384, 752 P.2d 1235 (1988), with Little v.
Middleton, 198 Ga. App. 393, 401 S.E.2d 751 (1991); Kushner v. McLarty,
165 Ga. App. 400, 300 S.E.2d 531 (1983); and Berman v. Rubin, 138 Ga.
App. 849, 227 S.E.2d 802 (1976).
25 Balames v. Ginn, supra note 12, citing 3 Ronald E. Mallen & Allison
Martin Rhodes, Legal Malpractice § 22:2 (2015).
26 Berman v. Rubin, supra note 24.

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“‘earn in excess of this said sum, the amount of child support
per child for that year and alimony for the wife for that year
shall be increased by 15% of such increase.’”27 Later, the dis-
solution court construed the agreement to require the client
to pay 15 percent of the excess earnings to each of his three
children and to his wife, for a total of 60 percent of the excess
earnings. The client apparently thought that his children and
wife would share 15 percent of the excess. He sued his attor-
ney for malpractice, and the trial court sustained the attorney’s
motion for summary judgment.
The Georgia Court of Appeals held that the client’s “ability
to read and comprehend, together with his failure to do so”
broke the chain of causation.28 The court emphasized that the
settlement agreement was not ambiguous, not “technical,” and
not “laced with ‘legal jargon.’”29 But it cautioned that its con-
clusion was fact dependent:
Our decision should not be read to state or imply that
an attorney may not be held responsible for his negligent
draftsmanship whenever the client can or does read the
document. Indeed, where the document requires substan-
tive or procedural knowledge, is ambiguous, or is of
uncertain application, the attorney may well be liable for
negligence, notwithstanding the fact that his client read
what was drafted. This holding is simply that when the
document’s meaning is plain, obvious, and requires no
legal explanation, and the client is well educated, laboring
under no disability, and has had the opportunity to read
what he signed, no action for professional malpractice
based on counsel’s alleged misrepresentation of the docu-
ment will lie.30
27 Id. at 850, 227 S.E.2d at 804 (emphasis omitted).
28 Id. at 855, 227 S.E.2d at 807.
29 Id. at 854, 227 S.E.2d at 806.
30 Id. at 854-55, 227 S.E.2d at 806.

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The client admitted that he read the first draft of the agreement,
asked for certain changes, read the changes, initialed each
page, and signed the final page.
The court distinguished Berman in Kushner v. McLarty.31
There, the client, a radiologist, retained an attorney to draft
an employment contract between himself and a hospital. The
client instructed the attorney to “ensure his retention as the
hospital’s radiologist.”32 The critical language in the con-
tract was:
“The term of this Agreement shall be for three years and
shall automatically be renewed for three years unless
either party gives the other party at least 120 days written
notice prior to the expiration of the three-year period. . . .
“During the initial term of this Agreement or any
renewal term thereof, the services of the Radiologist as
set forth herein, shall not be terminated by the Hospital
except after 120 days written notice and after a determi-
nation has been made that the Radiologist is not providing
adequate radiological services . . . . Further, no termina-
tion shall take effect . . . without the Radiologist being
afforded a hearing . . . .”33
The client testified that he did not understand the contract.
But he did “understand what [his attorney] told him it meant,”
which was that “the agreement said what he had intended.”34
Later, a court interpreted the contract to unambiguously allow
the hospital to not renew the client’s employment at the end of
a 3-year term solely by giving the client notice. A determina-
tion of inadequate services and a hearing were necessary only
if the hospital terminated the client’s employment during a
31 Kushner v. McLarty, supra note 24.
32 Id. at 400, 300 S.E.2d at 532.
33 Kushner v. Sou. Adventist &c. System, 151 Ga. App. 425, 425-26, 260
S.E.2d 381, 382 (1979).
34 Kushner v. McLarty, supra note 24, 165 Ga. App. at 403, 300 S.E.2d at
533.

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3-year term. The client sued his attorney for malpractice, and
the trial court, citing Berman, sustained the attorney’s motion
for a directed verdict.
The Georgia Court of Appeals reversed, stating that a prior
judicial determination that the contract was unambiguous did
not justify a directed verdict for the attorney. The Kushner
court stated that the meaning of the employment contract was
less obvious than the meaning of the property settlement agree-
ment in Berman:
What 	was 	alleged 	to 	be 	negligent 	draftsmanship 	in
Berman was the clear and unambiguous employment of
non-technical semantics to effectuate an excessive finan-
cial consequence which should have been obvious to
a well educated layman upon reading. In contrast, the
professional decision in the instant case to separate the
contractual terms relating to renewal/nonrenewal and ter-
mination into distinct subparagraphs was ultimately one
having entirely legal, rather than purely financial, signifi-
cance and consequences, which were not merely in excess
of but directly contrary to [the client’s] expressed intent.35
Because reasonable minds could disagree about whether the
contract needed “legal knowledge or explanation to become
clear to a layman,” a question of fact existed concerning
whether the client’s own conduct was the proximate cause of
his injury.36
The Georgia Court of Appeals similarly found that an
issue of fact existed in Little v. Middleton.37 There, the cli-
ent retained an attorney to represent her in a suit for damages
resulting from an automobile collision. The client agreed to
settle the suit for the limit of the other driver’s insurance
coverage. She signed a written release of the other driver, and
also released
35 Id. at 402, 300 S.E.2d at 533.
36 Id. at 403, 300 S.E.2d at 534.
37 Little v. Middleton, supra note 24.

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“[the 	other 	driver’s] 	heirs, 	executors, 	administrators,
agents and assigns, and all other persons, firms or cor-
porations liable or who might be claimed to be liable,
. . . from any and all claims, demands, damages, actions,
causes of action or suits of any kind or nature what-
soever . . . . [The client] hereby declares that the terms
of this settlement and the foregoing notice have been
completely read and are fully understood and volun-
tarily accepted for the purpose of making a full and final
compromise adjustment and settlement of any and all
claims . . . .”38
The client later presented a claim to her own insurer for
uninsured motorist benefits. Her insurer cited the release and
denied the claim. The client sued her attorney for malpractice,
and the attorney, citing Berman, moved for summary judgment.
The trial court sustained the attorney’s motion.
The appellate court reversed, reasoning that there was a
question of fact whether the client should have understood that
the general language in the release would bar her uninsured
motorist claim:
Unlike the agreement in Berman, the document that was
signed by [the client] did not specify the release of
her [uninsured motorist] carrier and, if it does serve
to release that otherwise unnamed carrier, it is solely
because of the legal effect of the general wording that
was employed therein.39
So it was for the jury to decide whether the release “‘require[d]
a 	legal 	knowledge 	or 	explanation 	to 	become 	clear 	to 	a
layman.’”40
[14] As these cases show, whether a client’s failure to read
or understand the disputed document is a superseding cause
38 Id. at 393-94, 401 S.E.2d at 752 (emphasis in original).
39 Id. at 395, 401 S.E.2d at 753 (emphasis in original).
40 Id. at 395, 401 S.E.2d at 754.

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depends on the facts.41 It is true, as Poppe notes, that it is no
defense to the formation of a contract that a person did not
read or understand the document which he or she signed.42 But
Brenda is not arguing that the agreement, incorporated by the
dissolution court as part of the decree itself, is not enforce-
able. Her signature does not estop her from pursuing Poppe
for malpractice.43
Poppe notes that we have held that the statute of limitations
for legal malpractice claims sometimes runs from the date that
the client signs a document. Under Neb. Rev. Stat. § 25-222
(Reissue 2008), a claim for legal malpractice accrues upon the
attorney’s negligent act or omission. But, under § 25-222, if
the plaintiff could not discover the act or omission within the
limitations period, he or she may bring suit within 1 year from
the earlier of “the date of such discovery or from the date of
discovery of facts which would reasonably lead to such dis-
covery.” In Interholzinger v. Estate of Dent,44 the clients sued
their attorney for malpractice related to a listing agreement.
We held that the limitations period began to run against one
of the clients when he signed the listing agreement. But the
limitations period on the other client’s claim did not run when
41 See, Winston v. Brogan, 844 F. Supp. 753 (S.D. Fla. 1994); De La Maria
v. Powell, Goldstein, Frazer & Murphy, 612 F. Supp. 1507 (N.D. Ga.
1985); Paul v. Smith, Gambrell & Russell, 283 Ga. App. 584, 642 S.E.2d
217 (2007); Sutton v. Mytich, 197 Ill. App. 3d 672, 555 N.E.2d 93, 144 Ill.
Dec. 196 (1990); 3 Ronald E. Mallen, Legal Malpractice § 22:3 (2016).
But see, Tarleton v. Arnstein & Lehr, 719 So. 2d 325 (Fla. App. 1998);
Beattie v. Brown & Wood, 243 A.D.2d 395, 663 N.Y.S.2d 199 (1997).
42 See, e.g., In re Claims Against Pierce Elevator, 291 Neb. 798, 868 N.W.2d
781 (2015).
43 See, Winston v. Brogan, supra note 41; McWhorter, Ltd. v. Irvin, 154 Ga.
App. 89, 267 S.E.2d 630 (1980); Arnav Retirement Trust v. Brown, 96
N.Y.2d 300, 751 N.E.2d 936, 727 N.Y.S.2d 688 (2001), overruled in part
on other grounds, Oakes v. Patel, 20 N.Y.3d 633, 988 N.E.2d 488, 965
N.Y.S.2d 752 (2013).
44 Interholzinger v. Estate of Dent, 214 Neb. 264, 333 N.W.2d 895 (1983).

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he signed the agreement, because he was unable to read it and
no one explained it to him. In Nichols v. Ach,45 we held that
the statute of limitations began to run on the plaintiffs’ mal-
practice claims on the day they signed a stock purchase agree-
ment. We rejected their argument that they did not understand
the import of the document, because the evidence showed that
they were experienced in business matters and in fact under-
stood what the agreement meant.
These cases show that attorneys are not always insulated
from malpractice liability because their clients read or ought
to have read the documents themselves. Instead, they “stand
only for the proposition that for purposes of determining when
an action for alleged legal malpractice begins to run, a cli-
ent must know what lay persons of ordinary intelligence are
deemed to know.”46 We would not have discussed the statute
of limitations at all in Interholzinger and Nichols if the fact
that the plaintiffs signed the documents was an absolute bar to
recovery. A rule that insulates attorneys from liability as a mat-
ter of law on the theory that clients ought to know what they
are signing ignores the fact that laypersons often hire attorneys
because they lack the knowledge and skills needed to under-
stand the transaction.47
We conclude that reasonable minds could disagree concern-
ing whether Poppe’s failure to advise Brenda about the effect
of the property settlement agreement on beneficiary designa-
tions was the proximate cause of Brenda’s loss. The property
settlement agreement here is more akin to the release in Little
45 Nichols v. Ach, 233 Neb. 634, 447 N.W.2d 220 (1989), disapproved in
part on other grounds, Anderson v. Service Merchandise Co., 240 Neb.
873, 485 N.W.2d 170 (1992). See, also, Smith v. Ganz, 219 Neb. 432, 363
N.W.2d 526 (1985).
46 Nichols v. Ach, supra note 45, 233 Neb. at 643, 447 N.W.2d at 227
(Caporale, J., concurring). See In-Line Suspension v. Weinberg & Weinberg,
12 Neb. App. 908, 687 N.W.2d 418 (2004).
47 See Winston v. Brogan, supra note 41.

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than the agreement in Berman. It does not speak specifi-
cally about beneficiary designations in life insurance policies.
Instead, it speaks generally about “rights,” “claims,” “inter-
ests,” “obligations,” “benefits,” and “property.” The agreement
leaves it to the reader to span multiple pages and determine
that “the legal effect of the general wording” is that the parties
waive their inchoate entitlement to the death benefits under
the other party’s life insurance policies.48 Our holding that the
agreement, which the court incorporated into its decree, was
unambiguous does not entitle Poppe to a summary judgment.
As we stated in Rice v. Webb, an agreement is ambiguous
if it is susceptible of at least two reasonable but conflicting
meanings.49 That an agreement is susceptible of only one rea-
sonable meaning does not mean that this meaning would be
apparent to a layperson. Indeed, the sole reasonable meaning
might not always be immediately apparent to a judge. Poppe
did not offer any evidence about Brenda’s level of sophistica-
tion. Because reasonable minds could disagree over whether
the meaning of the agreement was clear without the need for
legal skill and knowledge, the court could not say as a matter
of law that Brenda’s own conduct was the proximate cause of
her loss.50
Issue Preclusion
Alternatively, Poppe argues that the doctrine of issue preclu-
sion entitles him to judgment as matter of law. He reasons that
“Brenda is precluded from arguing that she needed [Poppe’s]
legal advice to understand the Agreement” because we held in
Rice v. Webb that the agreement was unambiguous.51
[15] Issue preclusion bars the relitigation of a finally deter-
mined issue that a party had a prior opportunity to fully and
48 Little v. Middleton, supra note 24, 198 Ga. App. at 395, 401 S.E.2d at 753.
49 Rice v. Webb, supra note 1.
50 See 3 Mallen, supra note 41.
51 Brief for appellees at 15.

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fairly litigate.52 Issue preclusion applies if (1) an identical issue
was decided in a prior action, (2) the prior action resulted in
a final judgment on the merits, (3) the party against whom the
doctrine is to be applied was a party or was in privity with a
party to the prior action, and (4) there was an opportunity to
fully and fairly litigate the issue in the prior action.53
Here, issue preclusion does not bar Brenda’s malpractice
claim against Poppe, because we did not decide an identical
issue in Rice v. Webb. The issue in that case—whether Brenda
waived her beneficiary interest under Dale’s life insurance
policies—is not the same as any of the dispositive issues in
this case. Brenda must prove three elements to succeed in
her legal malpractice claim: (1) She employed Poppe, (2)
Poppe neglected a reasonable duty, and (3) Poppe’s negli-
gence resulted in and was the proximate cause of loss to
Brenda.54 Our decision in Rice v. Webb established that Brenda
unambiguously waived her beneficiary interest in the decree.
We did not decide whether Poppe neglected a reasonable
duty. As explained above, the determination that the decree is
unambiguous is not fatal to any element of Brenda’s malprac-
tice claim.
CONCLUSION
We conclude that Poppe, the summary judgment movant,
failed to produce evidence which would entitle him to a judg-
ment if unopposed at trial. We therefore reverse the summary
judgment and remand for further proceedings.
Reversed and remanded for
further proceedings.
Stacy and Kelch, JJ., not participating.
52 Hara v. Reichert, 287 Neb. 577, 843 N.W.2d 812 (2014).
53 Id.
54 See Balames v. Ginn, supra note 12.