Guinn v. Murray

584 	286 NEBRASKA REPORTS
Muhannad into moving for a mistrial. He instead focused on
gross negligence. And gross negligence is insufficient under
the narrow exception set forth in Oregon v. Kennedy.
Because the prosecutor did not intend to goad Muhannad
into moving for a mistrial, Muhannad maintained primary
control over the course of events following Gobel’s testimony.
Muhannad chose to waive the right to have his trial com-
pleted by a particular tribunal, and his plea in bar was prop-
erly denied.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the
trial court denying the plea in bar.
A ffirmed.
H eAvicAn, C.J., not participating in the decision.
K evyne A. Guinn et Al., trustees of tHe trusts creAted
under tHe BernArd m. o’dAniel revocABle trust
AGreement dAted octoBer 22, 1998, As Amended By
first Amendment to tHe BernArd m. o’dAniel
revocABle trust AGreement dAted mArcH 28, 2001,
And P ersonAl rePresentAtives of tHe estAte of
BernArd m. o’dAniel, deceAsed, And elizABetH
m. o’dAniel, APPellAnts And cross -APPellees,
v. roBert J. murrAy And lAmson, duGAn
& murrAy, llP, A neBrAsKA limited
liABility PArtnersHiP, APPellees
And cross -APPellAnts.
837 N.W.2d 805
Filed September 27, 2013. 	No. S-12-165.
1. Summary Judgment: Appeal and Error. An appellate court will 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 infer-
ences 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 a light most favorable to the party against whom the judgment was
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:38 AM CST

GUINN v. MURRAY 	585
Cite as 286 Neb. 584
granted and gives that party the benefit of all reasonable inferences deducible
from the evidence.
3. Directed Verdict: Appeal and Error. In reviewing a trial court’s ruling on a
motion for directed verdict, an appellate court must treat the motion as an admis-
sion of the truth of all competent evidence submitted on behalf of the party
against whom the motion is directed; such being the case, the party against whom
the motion is directed is entitled to have every controverted fact resolved in its
favor and to have the benefit of every inference which can reasonably be deduced
from the evidence.
4. Directed Verdict: Evidence. A directed verdict is proper at the close of all the
evidence only when reasonable minds cannot differ and can draw but one con-
clusion from the evidence, that is, when an issue should be decided as a matter
of law.
5. Limitations of Actions: Appeal and Error. The point at which a statute of
limitations begins to run must be determined from the facts of each case, and the
decision of the district court on the issue of the statute of limitations normally
will not be set aside by an appellate court unless clearly wrong.
6. Limitations of Actions: Malpractice. If the facts in a case are undisputed, the
issue as to when the professional negligence statute of limitations began to run is
a question of law.
7. Judgments: Appeal and Error. An appellate court independently reviews ques-
tions of law decided by a lower court.
8. Limitations of Actions: Negligence: Torts. In a negligence action, a statute of
limitations begins to run as soon as the cause of action accrues, and an action
in tort accrues as soon as the act or omission occurs. This principle has been
referred to as “the occurrence rule.”
9. Limitations of Actions: Negligence. A claim for professional negligence
accrues and the statute of limitations begins to run at the time of the act or
omission which is alleged to be the professional negligence that is the basis for
the claim.
10. Limitations of Actions: Damages. A statute of limitations may begin to run at
some time before the full extent of damages has been sustained.
11. 	Limitations of Actions: Negligence. If a claim for professional negligence is not
to be considered time barred, the plaintiff must either file within 2 years of an
alleged act or omission or show that its action falls within the exceptions of Neb.
Rev. Stat. § 25-222 (Reissue 2008).
12. Limitations of Actions: Words and Phrases. “Discovery,” in the context of
statutes of limitations, refers to the fact that one knows of the existence of an
injury and not that one has a legal right to seek redress. It is not necessary that a
plaintiff have knowledge of the exact nature or source of the problem, but only
that a problem existed.
13. Limitations of Actions: Malpractice. In a professional negligence case, “dis-
covery of the act or omission” occurs when the party knows of facts sufficient
to put a person of ordinary intelligence and prudence on inquiry which, if pur-
sued, would lead to the knowledge of facts constituting the basis of the cause
of action.

586 	286 NEBRASKA REPORTS
14. Malpractice: Damages: Words and Phrases. In a cause of action for pro-
fessional negligence, legal injury is the wrongful act or omission which
causes the loss. Legal injury is not damage; damage is the loss resulting from
the misconduct.
15. Limitations of Actions: Malpractice. Under the continuous representation rule,
the statute of limitations for a claim of professional negligence is tolled if there is
a continuity of the relationship and services for the same or related subject matter
after the alleged professional negligence.
16. ____: ____. Continuity does not mean mere continuity of the general professional
relationship, and the continuous representation rule is inapplicable when the
claimant discovers the alleged negligence prior to the termination of the profes-
sional relationship.
17. Summary Judgment: Appeal and Error. The denial of a summary judgment
motion is neither appealable nor reviewable.
18. Summary Judgment: Moot Question: Appeal and Error. Whether a motion for
summary judgment should have been granted generally becomes moot after trial.
This is because the overruling of such a motion does not decide any issue, but
merely indicates that the trial court was not convinced that the moving party was
entitled to judgment as a matter of law. After trial, the merits should be judged in
relation to the fully developed trial record, not whether a different judgment may
have been warranted on the record at summary judgment.
19. Malpractice: Attorney and Client: Negligence: Proof: Proximate Cause:
Damages. In a civil action for legal malpractice, a plaintiff alleging professional
negligence on the part of an attorney must prove three elements: (1) the attor-
ney’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 client.
20. Malpractice: Attorney and Client. In a legal malpractice action, the required
standard of conduct is that the attorney exercise such skill, diligence, and knowl-
edge as that commonly possessed by attorneys acting in similar circumstances.
21. ____: ____. Although the general standard of an attorney’s conduct is established
by law, the question of what an attorney’s specific conduct should be in a particu-
lar case and whether an attorney’s conduct fell below that specific standard is a
question of fact.
22. 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.
23. Summary Judgment: Expert Witnesses: Testimony. A conflict of expert testi-
mony regarding an issue of fact establishes a genuine issue of material fact which
precludes summary judgment.
Appeal from the District Court for Douglas County: W.
russell BoWie iii, Judge. Affirmed in part, and in part reversed
and remanded for further proceedings.
W. Patrick Betterman and Lindsay E. Pedersen, of Law
Offices of W. Patrick Betterman, for appellants.

GUINN v. MURRAY 	587
Cite as 286 Neb. 584
James M. Bausch and Andre R. Barry, of Cline, Williams,
Wright, Johnson & Oldfather, L.L.P., for appellees.
H eAvicAn, C.J., connolly, and stePHAn, JJ., and irWin, Judge.
P er curiAm.
NATURE OF CASE
In this legal malpractice case, clients sued an attorney and
his firm alleging professional negligence in connection with
the administration of an estate. The clients, who are relatives
of the decedent, Bernard M. O’Daniel, appeal. The attor-
ney and law firm, Robert J. Murray and Lamson, Dugan &
Murray, LLP, cross-appeal. For the reasons explained below,
we affirm the judgment entered in favor of Murray and the
firm on the clients’ claim that they failed to properly disclose
a conflict of interest, and we reverse the judgments entered
dismissing as time barred the clients’ claims regarding the
propriety of advice regarding disclaiming certain property
and associated tax return elections. We remand the cause for
further proceedings on these two claims. Murray and the firm
cross-appeal regarding a preliminary ruling made on August
22, 2011, and we find no merit to the assignment of error in
the cross-appeal.
STATEMENT OF FACTS
The appellants and cross-appellees in this case are Bernard’s
widow, Elizabeth M. O’Daniel, and three of Bernard’s six sur-
viving children, Kevyne A. Guinn, Michael F. O’Daniel, and
Maureen E. Toberer. The children are parties to this case in
their capacities as personal representatives of Bernard’s estate
and as trustees of trusts created by Bernard. The appellants
and cross-appellees are hereinafter collectively referred to as
“the O’Daniels.”
The O’Daniels filed a professional malpractice action against
Murray and his law firm, Lamson, Dugan & Murray, on June
12, 2006. The name “Murray” is used herein to refer both to
Murray individually and to the defendants collectively now
appearing as appellees and cross-appellants. The O’Daniels
generally alleged that Murray committed professional negli-
gence with regard to the administration of Bernard’s estate and

588 	286 NEBRASKA REPORTS
that such negligence caused the estate to incur additional estate
taxes and additional legal fees.
After Bernard died in July 2001, Murray met with Bernard’s
children to discuss estate matters. Murray also represented
O’Daniel Motor Center (ODMC), the stock of which was
a significant asset of Bernard’s estate. At the first meeting,
Murray advised the children of his representation of both
ODMC and the estate and told them he could be fair to all
parties but encouraged them to retain their own counsel if they
so desired.
As part of the estate administration, Murray advised the
O’Daniels that Elizabeth should disclaim her interest in a por-
tion of Bernard’s estate, including his ODMC stock, so that
such interest would instead be distributed to the children.
Murray’s advice included plans for ODMC to purchase or
redeem the stock that would pass to the children other than
Michael, who would be left in control of the ODMC busi-
ness. Murray advised the children regarding the disclaimer
option at the initial meeting after Bernard’s death in July 2001
and in subsequent communications in September, October,
and November 2001. In materials provided to the children,
Murray’s calculations indicated that if some of the property
passed directly to the children from Bernard’s estate rather
than passing through Elizabeth’s estate before eventually pass-
ing to the children, there could be overall estate tax savings to
the family, because some of the property that would eventually
pass to the children would be subject to tax in Bernard’s estate
rather than leaving all of the property to be subject to tax in
Elizabeth’s estate. The materials indicated that if Elizabeth
did not disclaim any property, Bernard’s estate would pay no
tax and Elizabeth’s estate would pay tax on the entire estate;
the materials further indicated that if Elizabeth did disclaim a
portion of the property, both Bernard’s estate and Elizabeth’s
estate would pay tax but that the combined tax would be less
than if the entire estate were taxed in Elizabeth’s estate. One
of the stated assumptions in Murray’s calculation of potential
estate tax savings was that Elizabeth was not expected to live
past December 31, 2003.

GUINN v. MURRAY 	589
Cite as 286 Neb. 584
In 1998, Elizabeth had executed a power of attorney nam-
ing two of the children, Guinn and Michael, as coattorneys in
fact. The power of attorney stated that the attorney in fact had
authority to “deal with [her] real or personal property in any
manner that [the attorney in fact] may deem appropriate.” The
power of attorney further stated that such authority included
but was not limited to certain specified powers which included,
inter alia, the “[p]ower to make gifts or execute documents
and instructions in furtherance of my estate plan or which may
otherwise be advantageous for estate and gift tax planning pur-
poses.” In November and December 2001, Guinn and Michael
executed disclaimers on Elizabeth’s behalf disclaiming her
interest in the ODMC stock and in a portion of a promissory
note from ODMC to Bernard.
The estate was eligible to make a qualified terminable inter-
est property (QTIP) election on its estate tax return. The QTIP
election allowed the estate to shield from tax the property that
passed to a marital trust for the benefit of Elizabeth. Murray
prepared the estate tax return which was signed by the personal
representatives and filed on April 9, 2002. When preparing
the return, Murray excluded the disclaimed property from the
QTIP election. Based on the assumption that the disclaimers
were effective, Murray determined that the disclaimed property
would not pass to the marital trust and therefore was not eli-
gible for the QTIP election. The result was that the disclaimed
property was subject to estate tax, and the estate owed over
$600,000 in federal and state estate taxes.
In 2003, the Internal Revenue Service (IRS) began an audit
of the estate’s return. While the audit was underway, some of
the O’Daniels were concerned with Murray’s handling of the
estate and consulted with other attorneys. The O’Daniels assert
that they first learned in March 2004 that the disclaimers were
not valid. Based on the advice of new attorneys, the O’Daniels
believed that the disclaimers were not valid because Guinn and
Michael, who signed the disclaimers using Elizabeth’s power
of attorney, stood to benefit from the disclaimers and therefore
were not authorized under the power of attorney to execute the
disclaimers. They further believed that the disclaimers were

590 	286 NEBRASKA REPORTS
not effective to achieve their intended purpose because under
Bernard’s will, his assets were to be distributed to a trust that
would benefit Elizabeth rather than to Elizabeth herself and
therefore Elizabeth had no interest to disclaim. On April 6,
2004, the O’Daniels and Murray signed a tolling agreement
that tolled the running of the statute of limitations with respect
to any legal malpractice claims that could have been timely
brought prior to that date.
In 2005, the O’Daniels took steps to undo the distribution
of property that had been made based on Murray’s advice
regarding the disclaimers. They also filed a claim for a refund
of estate taxes on the basis that because the purportedly dis-
claimed property was not validly disclaimed, it should have
passed to the marital trust for Elizabeth and therefore should
have been included in the QTIP election and should not have
been subject to estate tax. The IRS denied the requested
change. The steps the O’Daniels undertook caused them to
incur additional legal fees and related expenses.
The O’Daniels filed this malpractice action against Murray
on June 12, 2006. The claims they made in their complaint
have been treated in these proceedings as consisting of three
general claims of professional negligence: (1) Murray failed
to obtain the O’Daniels’ informed consent with regard to the
conflict of interest in his dual representation of ODMC and
Bernard’s estate, (2) Murray erroneously advised the O’Daniels
to execute disclaimers that should be regarded as invalid and
ineffective, and (3) Murray failed to include the purportedly
disclaimed property in the QTIP election and therefore caused
the estate to incur additional taxes.
After numerous proceedings, motions, hearings, and two
trials, the district court resolved all the claims. At issue with
respect to each claim was whether the claim was barred by
the 2-year statute of limitations for professional negligence
actions under Neb. Rev. Stat. § 25-222 (Reissue 2008) as of
April 6, 2004, when the parties signed the tolling agreement.
It was ultimately determined that each of the claims was
barred by the statute of limitations. However, such conclu-
sion was reached as to each claim by a different procedural
route—the conflict of interest issue was determined based on

GUINN v. MURRAY 	591
Cite as 286 Neb. 584
a jury trial, the adequacy of advice regarding the disclaimers
issue was resolved based on a motion for summary judg-
ment, and the QTIP election issue was resolved based on a
motion for directed verdict after a second jury trial ended in
a mistrial.
With regard to the claim that Murray did not obtain consent
to the dual representation, the district court rejected Murray’s
motion for summary judgment based on the statute of limita-
tions. The court originally determined in an order filed March
3, 2011, that although Murray disclosed the dual representation
in July 2001 and the O’Daniels knew at that time that there
was a conflict of interest, the O’Daniels did not then know
that Murray had failed to obtain adequate consent to the dual
representation and they did not discover such failure until after
the original limitations period had expired. After the parties
renewed their motions for summary judgment, the court deter-
mined in an order filed April 11, 2011, that contrary to the
court’s prior order, there were issues of material fact regarding
whether the O’Daniels were on notice during the limitations
period that Murray had failed to obtain adequate consent. The
court therefore granted Murray’s motion for a separate trial
to a jury on the statute of limitations issue with respect to the
conflict of interest claim. At the conclusion of the trial on the
conflict of interest claim, the jury returned a verdict in favor of
Murray on the statute of limitations defense. The court entered
judgment based on the jury’s verdict.
With regard to the claim that Murray erroneously advised
the O’Daniels with respect to the disclaimers, the court con-
cluded in response to Murray’s motion for summary judgment
that the claim was barred by the statute of limitations. In the
initial March 3, 2011, order, the court found that the statute
began to run when the disclaimers were executed in November
and December 2001 and that neither the discovery rule nor the
continuous representation rule applied to toll the statute of lim-
itations. The court noted Guinn’s deposition testimony that the
tax liability reported on the estate’s return in April 2002 was
greater than what she expected the estate would have to pay.
The court reasoned that the knowledge of “a higher tax liability
put [the O’Daniels] on inquiry notice that the disclaimers did

592 	286 NEBRASKA REPORTS
not work as intended.” Because the O’Daniels were on inquiry
notice in April 2002, which was within 2 years after the alleged
negligence occurred in late 2001, the discovery rule did not
toll the statute of limitations. The court further reasoned that
Murray’s representation of the estate during the IRS audit was
not an attempt to reverse the unfavorable results of his advice
regarding disclaimers and that therefore, the continuous repre-
sentation rule did not toll the statute of limitations. The court
concluded that the 2-year statute of limitations had run and that
the claim was barred in 2003, before the parties executed the
tolling agreement on April 6, 2004. The court granted summary
judgment in favor of Murray on this claim.
Although the court concluded that the disclaimer advice
claim was barred by the statute of limitations, “for the sake of
thoroughness,” the court addressed the merits of the O’Daniels’
assertions that the disclaimers were not effective or valid. In
the initial March 3, 2011, order, the court concluded, inter alia,
that the disclaimers were invalid because although the power
of attorney executed by Elizabeth gave the attorneys in fact
the authority to make gifts for tax planning purposes, it did not
specifically grant her attorneys in fact the power to make gifts
to themselves.
With regard to the claim that Murray failed to make a QTIP
election for the purportedly disclaimed property, a jury trial
was scheduled on issues related to the claim. Prior to that trial,
the court, in an order entered August 22, 2011, made various
rulings in response to the O’Daniels’ motion for partial sum-
mary judgment. These included a ruling that “it should have
been clear that the Disclaimers were invalid and the purport-
edly disclaimed property must be included in the QTIP elec-
tion.” The substance of this aspect of the August 22 ruling is
challenged by Murray on cross-appeal.
A trial was conducted and resulted in a mistrial when the
jury was unable to reach a verdict. The court thereafter con-
sidered the parties’ motions for directed verdict and concluded
that Murray was entitled to a directed verdict because the claim
for failure to make the QTIP election for the purportedly dis-
claimed property was barred by the statute of limitations.

GUINN v. MURRAY 	593
Cite as 286 Neb. 584
In an order filed February 1, 2012, the court reasoned that
although the estate tax return was filed on April 9, 2002, which
date was within 2 years prior to the date of the tolling agree-
ment on April 6, 2004, the filing of the return was not the
wrongful act at issue. Instead, the court found that “the wrong-
ful act forming the basis of this claim actually occurred in 2001
when Murray provided the erroneous advice with respect to the
disclaimers.” The court cited an Arkansas case in which the
Arkansas Supreme Court determined that the professional mal-
practice statute of limitations began to run when an accountant
gave erroneous advice and not when he later completed a tax
return in accordance with such advice. The court in this case
noted that at the time the estate tax return was filed, Murray
acted on the assumption that the disclaimers were valid and
therefore determined that the property was not eligible for the
QTIP election. The court concluded that for the same reasons
the claim for negligent advice regarding the disclaimers was
barred, the claim for failure to make the QTIP election was
also barred by the statute of limitations.
The court further found that even if the claim was not barred
by the statute of limitations, the O’Daniels failed to establish
a prima facie case of legal malpractice because they failed to
introduce evidence at trial showing that Murray’s negligence
was the proximate cause of their damages. The court stated
that although the O’Daniels presented evidence that the estate
paid taxes of over $600,000, such evidence alone was “insuf-
ficient to lead to an inference that that amount was the result
of negligence on the part of Murray” and that “there was no
evidence indicating that the Estate would not have had to pay
the same amount had Murray included the purportedly dis-
claimed property in the QTIP election.” The court concluded
that because the O’Daniels “failed to introduce any evidence
for which the jury could determine proximate cause and dam-
ages,” Murray was entitled to judgment as a matter of law.
The court therefore sustained Murray’s motion for directed
verdict and entered judgment in Murray’s favor on the QTIP
election claim.
The O’Daniels appeal, and Murray cross-appeals.

594 	286 NEBRASKA REPORTS
ASSIGNMENTS OF ERROR
The O’Daniels generally claim that the district court erred
when it concluded that their claims were barred by the statute
of limitations. The O’Daniels make additional assignments of
error that because of our disposition of this appeal, we need
not reach.
On cross-appeal, Murray refers us to the following language
in the August 22, 2011, order that “it should have been clear
that the Disclaimers were invalid and the purportedly dis-
claimed property must be included in the QTIP election” and,
rephrased, asserts on cross-appeal that in the event of a remand,
given this ruling, the district court improperly removed the
issue of fact as to whether Murray’s conduct fell below the
standard of conduct with respect to the disclaimer advice from
the jury’s consideration.
STANDARDS OF REVIEW
[1,2] An appellate court will 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 moving party is entitled to judgment as a matter
of law. Shada v. Farmers Ins. Exch., ante p. 444, 840 N.W.2d
856 (2013). In reviewing a summary judgment, an appellate
court views the evidence in a 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. Id.
[3] In reviewing a trial court’s ruling on a motion for
directed verdict, an appellate court must treat the motion as an
admission of the truth of all competent evidence submitted on
behalf of the party against whom the motion is directed; such
being the case, the party against whom the motion is directed
is entitled to have every controverted fact resolved in its favor
and to have the benefit of every inference which can reason-
ably be deduced from the evidence. Wulf v. Kunnath, 285 Neb.
472, 827 N.W.2d 248 (2013).

GUINN v. MURRAY 	595
Cite as 286 Neb. 584
[4] A directed verdict is proper at the close of all the evi-
dence only when reasonable minds cannot differ and can
draw but one conclusion from the evidence, that is, when an
issue should be decided as a matter of law. Credit Bureau
Servs. v. Experian Info. Solutions, 285 Neb 526, 828 N.W.2d
147 (2013).
[5-7] The point at which a statute of limitations begins to run
must be determined from the facts of each case, and the deci-
sion of the district court on the issue of the statute of limita-
tions normally will not be set aside by an appellate court unless
clearly wrong. Manker v. Manker, 263 Neb. 944, 644 N.W.2d
522 (2002). If the facts in a case are undisputed, the issue as to
when the professional negligence statute of limitations began
to run is a question of law. Carruth v. State, 271 Neb. 433, 712
N.W.2d 575 (2006). An appellate court independently reviews
questions of law decided by a lower court. Shada v. Farmers
Ins. Exch., supra.
ANALYSIS
As tried in the district court, this malpractice action involves
three claims: (1) that Murray failed to obtain consent with
regard to a conflict of interest, (2) that Murray erroneously
advised the O’Daniels to execute disclaimers that were invalid
and ineffective, and (3) that Murray’s failure to include dis-
claimed property in the QTIP election caused the estate to
incur unnecessary taxes. The O’Daniels make various assign-
ments of error which relate to one or more of the claims; in our
analysis, we consider in turn each of the three claims and the
assignments of error related to each claim. The district court
ultimately resolved each of the claims in this action by con-
cluding that the claim was barred by the statute of limitations,
and we generally resolve this appeal by deciding issues related
to the statute of limitations. We therefore begin our analysis
with a review of statute of limitations concepts that are appli-
cable to all three legal malpractice claims before we consider
each claim separately.

596 	286 NEBRASKA REPORTS
Statute of Limitations Concepts
Applicable to the O’Daniels’
Three Claims.
Each of the O’Daniels’ claims is a legal malpractice claim,
and therefore, the applicable statute of limitations is § 25-222,
which provides:
Any action to recover damages based on alleged pro-
fessional negligence or upon alleged breach of warranty
in rendering or failure to render professional services shall
be commenced within two years next after the alleged act
or omission in rendering or failure to render professional
services providing the basis for such action; Provided,
if the cause of action is not discovered and could not be
reasonably discovered within such two-year period, then
the action may be commenced within one year from the
date of such discovery or from the date of discovery of
facts which would reasonably lead to such discovery,
whichever is earlier; and provided further, that in no
event may any action be commenced to recover damages
for professional negligence or breach of warranty in ren-
dering or failure to render professional services more than
ten years after the date of rendering or failure to render
such professional service which provides the basis for the
cause of action.
Under the statute, the action must be commenced within 2
years of the alleged act of negligence unless the action was
not or could not reasonably be discovered within that 2-year
period, in which case it must be commenced within 1 year after
it is discovered or should be discovered.
[8-10] In a negligence action, a statute of limitations begins
to run as soon as the cause of action accrues, and an action
in tort accrues as soon as the act or omission occurs. Carruth
v. State, supra. This principle has been referred to as “‘the
occurrence rule.’” Id. at 438, 712 N.W.2d at 580. A claim
for professional negligence accrues and the statute of limita-
tions begins to run at the time of the act or omission which
is alleged to be the professional negligence that is the basis
for the claim. Bellino v. McGrath North, 274 Neb. 130, 738
N.W.2d 434 (2007). A statute of limitations may begin to run

GUINN v. MURRAY 	597
Cite as 286 Neb. 584
at some time before the full extent of damages has been sus-
tained. Id.
In the present case, the statute of limitations analysis focuses
on April 6, 2004, when the parties signed a tolling agreement
to the effect that the statute would be tolled for any action that
was not already barred as of that date. Therefore, any claim
on which the limitations period had not run prior to April 6,
2004, was not barred when the O’Daniels filed their complaint
on June 12, 2006. Under § 25-222, a claim was barred if it
had accrued prior to April 6, 2002, unless the discovery rule
applied or the statute was tolled for another reason.
[11] If a claim for professional negligence is not to be con-
sidered time barred, the plaintiff must either file within 2 years
of an alleged act or omission or show that its action falls within
the exceptions of § 25-222. Bellino v. McGrath North, supra.
The O’Daniels in this case argue that both the discovery rule
and the continuous representation rule toll the running of the
statute of limitations on their claims.
[12-14] The discovery rule as it pertains to professional
negligence claims is set forth in §25-222, quoted above. By
the terms of the statute, the discovery rule applies only when
the cause of action is not discovered and could not reasonably
have been discovered within the 2-year limitations period. If
the discovery rule applies, then the limitations period is 1 year
from the time the cause of action is or could have been dis-
covered. “Discovery,” in the context of statutes of limitations,
refers to the fact that one knows of the existence of an injury
and not that one has a legal right to seek redress. Lindsay Mfg.
Co. v. Universal Surety Co., 246 Neb. 495, 519 N.W.2d 530
(1994). It is not necessary that a plaintiff have knowledge of
the exact nature or source of the problem, but only that a prob-
lem existed. Id. In a professional negligence case, “discovery
of the act or omission” occurs when the party knows of facts
sufficient to put a person of ordinary intelligence and prudence
on inquiry which, if pursued, would lead to the knowledge of
facts constituting the basis of the cause of action. Gering - Ft.
Laramie Irr. Dist. v. Baker, 259 Neb. 840, 612 N.W.2d 897
(2000). In a cause of action for professional negligence, legal
injury is the wrongful act or omission which causes the loss.

598 	286 NEBRASKA REPORTS
Id. Legal injury is not damage; damage is the loss resulting
from the misconduct. See id.
[15,16] This court has also recognized that the continuous
representation rule may toll the statute of limitations in a legal
malpractice case. Under this rule, the statute of limitations for
a claim of professional negligence is tolled if there is a conti-
nuity of the relationship and services for the same or related
subject matter after the alleged professional negligence. Bellino
v. McGrath North, 274 Neb. 130, 738 N.W.2d 434 (2007).
However, we have limited the reach of the continuous repre-
sentation rule by stating that continuity does not mean mere
continuity of the general professional relationship and that the
continuous representation rule is inapplicable when the claim-
ant discovers the alleged negligence prior to the termination
of the professional relationship. See Reinke Mfg. Co. v. Hayes,
256 Neb. 442, 590 N.W.2d 380 (1999).
We 	review 	statute 	of 	limitations 	issues 	regarding 	the
O’Daniels’ three claims in the context of the standards set
forth above.
Conflict of Interest Claim.
We first consider the claim that Murray committed legal
malpractice when he failed to obtain the O’Daniels’ informed
consent with regard to the conflict of interest in his dual rep-
resentation of ODMC and the estate. The O’Daniels’ primary
contention on appeal with respect to this claim is that the
district court erred when it failed to grant summary judgment
in their favor on the substance of this claim. After the district
court denied the summary judgment about which the O’Daniels
complain, the case proceeded to trial. The jury found this claim
to be time barred, and the district court entered judgment
accordingly. We affirm.
The conflict of interest claim involves Murray’s alleged fail-
ure to obtain consent to the dual representation, which consent
should have been obtained when Murray began the dual repre-
sentation in July 2001. Unless the discovery rule applied or the
statute was tolled, the 2-year limitations period under § 25-222
ended for this claim in 2003, before the parties executed the
tolling agreement on April 6, 2004.

GUINN v. MURRAY 	599
Cite as 286 Neb. 584
At issue in the district court was whether the O’Daniels dis-
covered or could have discovered their cause of action before
the 2-year limitations period ended in 2003. The court twice
considered cross-motions for summary judgment with respect
to the conflict of interest claim before it ultimately submitted
the statute of limitations issue to a jury. The court was initially
of the view that the O’Daniels did not discover that Murray
had failed to obtain adequate consent to the dual representa-
tion until after the expiration of the original 2-year limitations
period. The court later determined that contrary to its prior
order, there were issues of material fact regarding whether the
O’Daniels were put on notice during the limitations period
that Murray had failed to obtain informed consent; the court
noted in its order that if the O’Daniels were on inquiry notice
of the claim during the original limitations period, neither the
discovery rule nor the continuous representation rule tolled the
limitations period. The statute of limitations issue pertaining
to the conflict of interest claim was submitted to a jury, and
the jury returned a verdict in favor of Murray based on the
statute of limitations. The court entered judgment based on the
jury’s verdict.
[17,18] On appeal, the O’Daniels claim that the district court
erred when it denied their motions for summary judgment on
the conflict of interest claim. This assignment of error focuses
on the summary judgment ruling but ignores the fact that the
statute of limitations issue was later tried to a jury, and on the
complete record made at trial, the jury found in Murray’s favor.
We have held that the denial of a summary judgment motion is
neither appealable nor reviewable. Lesiak v. Central Valley Ag
Co-op, 283 Neb. 103, 808 N.W.2d 67 (2012). We have further
stated that whether a motion for summary judgment should
have been granted generally becomes moot after trial. This
is because the overruling of such a motion does not decide
any issue, but merely indicates that the trial court was not
convinced that the moving party was entitled to judgment as
a matter of law. After trial, the merits should be judged in rela-
tion to the fully developed trial record, not whether a different
judgment may have been warranted on the record at summary
judgment. Id. We therefore do not review the O’Daniels’ claims

600 	286 NEBRASKA REPORTS
that the court erred when it denied motions for summary judg-
ment that the O’Daniels made before the jury trial.
For completeness, we note the O’Daniels generally assert
that the court erred when it entered judgment in favor of
Murray on the conflict of interest claim; however, they make
no assignment of error related to a specific ruling made by the
court during the trial. They generally argue that the discovery
rule or the continuous representation rule extended the limita-
tions period, without acknowledging that the jury by its verdict
implicitly rejected these assertions. The jury found against the
O’Daniels and in favor of Murray on the statute of limitations
issue, and the court entered judgment in favor of Murray on
the conflict of interest claim based on the jury’s verdict. We
see no error in the court’s entering judgment based on such
verdict. Because the O’Daniels assign no reviewable error with
respect to the trial that resulted in such verdict, we affirm the
judgment entered in favor of Murray on the conflict of inter-
est claim.
Disclaimer Advice Claim.
The O’Daniels claim that the district court erred when it
granted summary judgment in favor of Murray on the dis-
claimer advice claim based on the court’s determination that
this claim was discovered in April 2002, when Bernard’s
estate tax return was completed, and that the claim was there-
fore barred by the statute of limitations. Upon our appellate
review, the summary judgment record infers that the statute of
limitations was extended by the discovery rule, and we must
take the reasonable inferences in favor of the O’Daniels as
the party against whom judgment was granted. See Shada v.
Farmers Ins. Exch., ante p. 444, 840 N.W.2d 856 (2013). We
therefore agree with the O’Daniels that the court erred when
it determined on summary judgment that the claim was barred
by the statute of limitations. We reverse the grant of summary
judgment in favor of Murray and remand the cause for further
proceedings with respect to this claim.
The disclaimer advice claim generally concerns Murray’s
advice regarding the plan for Elizabeth to disclaim property.
The O’Daniels alleged in their complaint that Murray’s advice

GUINN v. MURRAY 	601
Cite as 286 Neb. 584
regarding the execution of disclaimers “was negligent and
deviated from the standard of care observed by attorneys prac-
ticing law in Omaha, Nebraska in 2001.” They alleged that
the advice was deficient for various reasons, including errors
in Murray’s tax savings computations. They also alleged the
disclaimers were ineffective to achieve the intended result
because under the terms of Bernard’s will, property would
pass to a trust for Elizabeth’s benefit rather than to Elizabeth
herself, and therefore the disclaimers would not affect the pass-
ing of such property to the trust. They further alleged that the
disclaimers were ineffective because the holders of Elizabeth’s
power of attorney would receive a share of the property dis-
claimed by Elizabeth, which was contrary to the law providing
that the holder of a power of attorney could not make a gift
to himself or herself unless the power of attorney specifically
so provided.
Murray gave the challenged advice regarding disclaimers,
and the plan was carried out with the execution of disclaimers
in the second half of 2001. The negligent acts alleged in this
claim occurred in 2001, and therefore, unless the discovery rule
or the continuous representation rule applied, the disclaimer
advice claim was barred by the 2-year statute before the parties
executed the tolling agreement on April 6, 2004.
In an order entered March 3, 2011, the district court con-
cluded, inter alia, that this claim accrued in 2001 and was
barred by the 2-year statute of limitations before the tolling
agreement was executed in 2004. The court concluded that nei-
ther the discovery rule nor the continuous representation rule
applied to toll the statute. With regard to the discovery rule, the
court concluded that the O’Daniels were put on inquiry notice
of the disclaimer claim prior to the expiration of the limitations
period when in April 2002 they learned that the estate taxes
were higher than expected. With regard to the continuous rep-
resentation rule, the court concluded that Murray’s representa-
tion of the estate during the IRS audit was not an attempt to
reverse purportedly unfavorable results of his advice regarding
the disclaimers and that therefore, the continuous representa-
tion rule did not apply because it was not representation with
regard to the same matter.

602 	286 NEBRASKA REPORTS
We disagree with the district court’s determination that
learning of the higher tax liability put the O’Daniels on
inquiry notice of the disclaimer advice claim. In making this
determination, the court relied on Guinn’s testimony that the
tax liability reported on the estate’s return in April 2002 was
greater than what she expected it would be. From this com-
ment, the district court determined that the O’Daniels were put
on inquiry notice of problems with the disclaimer advice. The
district court’s analysis fails to incorporate the evidence with
respect to how Murray’s tax planning advice was expected
to work.
The disclaimer plan set forth by Murray was always expected
to result in a higher estate tax being paid in Bernard’s estate
but a lower overall estate tax being paid with regard to both
Bernard’s and Elizabeth’s estates. In effect, the plan was that
some estate tax would be paid in Bernard’s estate in order to
save a greater amount of estate tax in Elizabeth’s estate. If the
disclaimers were ineffective, then the property would have
gone to the trust to benefit Elizabeth and the property would
have been included in the QTIP election, resulting in less tax
than what the O’Daniels expected based on the plan set forth
by Murray. The evidence showed that the taxes were higher
than Guinn expected generally because of an unrelated issue
involving a grandchild’s inheritance rather than the allegedly
erroneous disclaimer advice. Therefore, when Guinn learned
that taxes were higher than she expected (due to an unrelated
issue), such knowledge did not give the O’Daniels inquiry
notice of a possible problem with the disclaimer advice. If the
O’Daniels had inquired into the cause of the increased taxes in
April 2002, such inquiry would have led them to discover the
unrelated issue that caused taxes to be higher than originally
estimated but would not have led them to discover the alleged
problems with the disclaimer advice.
The only other evidence bearing on discovery of the dis-
claimer advice appears to indicate that the O’Daniels did not
discover possible problems with the disclaimer advice until
early 2004, when other attorneys told them that the disclaim-
ers were not valid or effective. The original 2-year limita-
tions period on the disclaimer advice claim ended in 2003.

GUINN v. MURRAY 	603
Cite as 286 Neb. 584
Therefore, if discovery occurred in early 2004, it occurred after
the end of the original limitations period; and under § 25-222,
the O’Daniels had 1 year from the date of discovery to bring
an action on their claim. The tolling agreement was signed
in April 2004, within 1 year after the O’Daniels discovered
their claim in early 2004 as a result of consultation with other
attorneys. The evidence regarding higher taxes and the com-
ments of other attorneys fails to indicate that the O’Daniels
discovered or should have discovered potential problems with
the disclaimer advice before early 2004. Thus, on the summary
judgment record, the O’Daniels benefit from the discovery
rule. Because we conclude that the discovery rule applied, we
need not consider whether the continuous representation rule
also applied.
The ruling under consideration was made on Murray’s
motion for summary judgment, and we must take the reason-
able inferences in favor of the O’Daniels as the party against
whom judgment was granted. See Shada v. Farmers Ins. Exch.,
ante p. 444, 840 N.W.2d 856 (2013) (appellate court views
evidence in light most favorable to party against whom judg-
ment was granted and gives that party benefit of all reason-
able inferences). Taking inferences in favor of the O’Daniels,
we determine that Murray did not show that the disclaimer
advice claim was barred by the statute of limitations and that
judgment should be entered in Murray’s favor. The district
court erred when it determined this claim was time barred
and granted summary judgment in favor of Murray on the dis-
claimer advice claim. We therefore reverse the grant of sum-
mary judgment in favor of Murray, and we remand the cause
to the district court for further proceedings on the disclaimer
advice claim.
QTIP Election Claim.
The O’Daniels claim that the district court erred when it
determined that the QTIP election claim was time barred and
granted a directed verdict in favor of Murray. We agree with
the O’Daniels, and we reverse the grant of a directed verdict
and remand the cause to the district court for further proceed-
ings on the QTIP election claim.

604 	286 NEBRASKA REPORTS
The O’Daniels alleged in their complaint that Murray negli-
gently failed to include the purportedly disclaimed property in
the QTIP election on the estate’s tax return and that as a result
of such failure, the estate was denied a marital deduction for
the value of the property and that the estate incurred and paid
estate taxes that would not have been incurred if the prop-
erty had been included in the QTIP election. Although this
claim was presented to a jury, the jury was unable to reach
a verdict, resulting in a mistrial. The court then considered
the parties’ motions for directed verdict and concluded that
the claim was barred by the statute of limitations. The court
determined that the filing of the estate tax return in April 2002
was not the wrongful act at issue and that instead, the man-
ner in which the return was prepared was merely a result of
the allegedly erroneous disclaimer advice that Murray gave in
2001. The court further found that even if the claim was not
barred, the O’Daniels had failed to introduce evidence at trial
to show that Murray’s negligence was the proximate cause
of their damages; that is, the O’Daniels failed to show that
they would not have had to pay the amount of estate taxes
incurred if Murray had included the disclaimed property in
the QTIP election.
With regard to the QTIP election claim, the O’Daniels assert
that the act giving rise to the claim accrued on April 9, 2002,
when Murray filed the estate tax return, and that therefore,
the tolling agreement occurred within 2 years thereafter, thus
within the limitations period. Murray argues, and the district
court determined, that the claim did not accrue upon the filing
of the estate tax return; instead, the filing of the return was
merely a consequence of the allegedly negligent disclaimer
advice given in 2001. The district court concluded that this
claim accrued at the time the advice was given in 2001 and that
therefore, the limitations period was over before the signing of
the tolling agreement on April 6, 2004.
Regardless of whether we agree with Murray’s contention
and the court’s conclusion that the QTIP election claim was
merely a result of the allegedly erroneous disclaimer advice
or whether we agree with the O’Daniels’ contention that they
asserted a separate claim that accrued only upon completion of

GUINN v. MURRAY 	605
Cite as 286 Neb. 584
the estate return, we nevertheless conclude that the claim was
not barred by the statute of limitations. If the O’Daniels’ claim
with regard to the QTIP election was a separate claim, then it
accrued upon the filing of the return on April 9, 2002, and the
2-year limitations period under § 25-222 had not run when the
tolling agreement was executed on April 6, 2004. If the QTIP
election claim was merely a result of the allegedly erroneous
disclaimer advice, then, similar to our reasoning above with
respect to the disclaimer advice claim, on the record before us,
the O’Daniels did not discover the QTIP election claim until
early 2004 and the QTIP election claims also was not barred
by the statute of limitations.
When it granted the directed verdict in favor of Murray, the
court also concluded that even if the QTIP election claim was
not barred by the statute of limitations, the O’Daniels did not
prove any damages that were proximately caused by Murray’s
alleged negligence. However, the district court’s conclusion in
this respect appears to be influenced by the fact that the court
was considering the QTIP election claim in isolation. Given
the procedural posture of the claims and because we have
determined on the record before us that neither the disclaimer
advice claim nor the QTIP election claim was conclusively
barred by the statute of limitations, the two claims must be
considered together on remand, and we consider the court’s
conclusion with regard to damages in light of both claims.
In determining that the QTIP election claim was barred by
the statute of limitations, the court determined that the claim
was merely a consequence of the disclaimer advice claim—
in effect, that the exclusion of the “purportedly” disclaimed
property from the QTIP election was merely the result of the
disclaimer advice. However, in concluding that the O’Daniels
provided no evidence of damages, the court apparently looked
at the QTIP election claim in isolation and concluded that there
was no evidence of damages because the estate taxes were not
a result of Murray’s excluding the property from the QTIP
election when such exclusion was required by the fact the
property had been disclaimed.
Considering the claims together, the testimony of O’Daniels’
experts indicates that if Murray had not given the allegedly

606 	286 NEBRASKA REPORTS
erroneous disclaimer advice, then the property would not
have been disclaimed and it would have been eligible to be
included in the QTIP election, thereby avoiding estate tax on
that property in Bernard’s estate. The O’Daniels also asserted
that they incurred additional attorney fees in an attempt to
undo the problems caused by Murray’s disclaimer advice
and his failure to make a QTIP election on the property that
should not have been disclaimed. The district court’s conclu-
sion that the O’Daniels presented no evidence of damages was
made in the context of a trial limited to the QTIP election. On
remand, the disclaimer advice claim and the QTIP election
claim should be considered together and evidence of damages
should be considered as a result of both claims.
We conclude that the district court erred when it directed
a verdict in favor of Murray on the QTIP election claim. We
reverse such directed verdict, and we remand the cause for
further proceedings on the QTIP election claim in conjunction
with further proceedings on the disclaimer advice claim.
The O’Daniels’ Remaining
Assignments of Error.
The O’Daniels’ remaining assignments of error relate to
evidentiary rulings and other matters arising from the jury
trial on the QTIP claim which resulted in a mistrial. We
have reversed the court’s grant of a directed verdict on this
claim and remanded the cause for further proceedings, and we
need not address these issues in order to resolve this appeal.
Although some of these issues may recur, the rulings of which
the O’Daniels complain in their remaining assignments of error
arose in the context of a trial that involved only the QTIP elec-
tion claim. On remand, the court will likely be faced with a dif-
ferent set of circumstances because any proceedings that may
occur on remand will also involve the disclaimer advice claim.
If the same issues arise on remand, rulings on the issues will
arise in a much different context on remand than the context in
which they were originally decided. Any consideration of the
issues in the context of the previous trial would not necessar-
ily be dispositive on remand. We therefore do not consider the
O’Daniels’ remaining assignments of error.

GUINN v. MURRAY 	607
Cite as 286 Neb. 584
Murray’s Cross-Appeal.
On cross-appeal, Murray refers us to the following lan-
guage in the August 22, 2011, order that “it should have
been clear that the Disclaimers were invalid and the purport-
edly disclaimed property must be included in the QTIP elec-
tion” and, rephrased, asserts on cross-appeal that in the event
of a remand, given this ruling, the district court improperly
removed from the jury’s consideration the issue of fact as to
whether Murray’s conduct fell below the standard of conduct
with respect to the disclaimer advice. Because we are remand-
ing the cause for further proceedings regarding the disclaimer
advice claim and the QTIP election claim, this issue will likely
recur on remand and the court’s ruling could be relevant to
issues on remand. Although we do not find merit to Murray’s
assignment of error, we nevertheless consider Murray’s cross-
appeal in order to set forth standards that should be applied on
remand and that should inform how the analysis by the district
court should proceed in further proceedings.
In an order entered August 22, 2011, prior to the trial on the
QTIP election claim, the district court addressed the O’Daniels’
third motion for partial summary judgment. The O’Daniels
had moved for partial summary judgment on several issues,
including an issue that was described in the court’s order as
being “[w]hether [Murray] erred under settled Nebraska law
in failing to make a QTIP election on the [estate tax return]
with respect to all property passing to the [trust benefiting
Elizabeth], including the property purportedly disclaimed pur-
suant to the two Disclaimers.” The court noted that in making
the QTIP election, Murray acted under the assumption that
the disclaimers were valid and that therefore, no QTIP elec-
tion could be made for the disclaimed property because such
property was not part of the trust benefiting Elizabeth. The
court concluded as a matter of law that the disclaimers were
invalid and that as a consequence, the purportedly disclaimed
property must be included in the QTIP election. Based on its
assessment of the state of the law at the time, the court specifi-
cally stated that “it should have been clear that the Disclaimers
were invalid and the purportedly disclaimed property must be
included in the QTIP election.”

608 	286 NEBRASKA REPORTS
Murray challenges the quoted statement on cross-appeal.
Murray contends that the statement can be read as though
the district court concluded as a matter of law that Murray’s
conduct fell below the standard of conduct, thereby effec-
tively determining that Murray was negligent. Murray argues
in its brief that in the event this cause is remanded for fur-
ther proceedings on the O’Daniels’ claims, we “should clarify
that the question whether . . . Murray reasonably believed
the Disclaimers were valid presents a question of fact” to be
determined by the jury and that Murray should be permitted to
present expert testimony relative thereto. Brief for appellees on
cross-appeal at 48.
Taking the August 22, 2011, order as a whole, we do
not read the court’s order as Murray suggests and we reject
Murray’s assignment of error to the extent it asserts that the
district court preempted the jury’s function. In this regard, we
note that in the August 22 order, after the court made the chal-
lenged statement, the order continued and states “but whether
this error constitutes negligence is a question of fact for the
jury to decide.” We believe this statement shows that the dis-
trict court properly understood the legal framework of a legal
malpractice action. Nevertheless, because we remand the cause
for further proceedings on the disclaimer advice and QTIP
election claims, we provide clarification of what issues in a
professional negligence case are questions of law for the court
and what issues are questions of fact for the fact finder.
[19-23] 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 to the client. Young v. Govier & Milone, ante p. 224, 835
N.W.2d 684 (2013). With regard to the element of neglect of a
reasonable duty, we have set forth the following propositions
of law: In a legal malpractice action, the required standard of
conduct is that the attorney exercise such skill, diligence, and
knowledge as that commonly possessed by attorneys acting in
similar circumstances. Id. Although the general standard of an
attorney’s conduct is established by law, the question of what

GUINN v. MURRAY 	609
Cite as 286 Neb. 584
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. Id. Expert testimony is generally
required to establish an attorney’s standard of conduct in a par-
ticular circumstance and that the attorney’s conduct was not in
conformity therewith. Id. A conflict of expert testimony regard-
ing an issue of fact establishes a genuine issue of material fact
which precludes summary judgment. Id.
The district court in its August 22, 2011, order cited Baker
v. Fabian, Thielen & Thielen, 254 Neb. 697, 703-04, 578
N.W.2d 446, 451 (1998), for the proposition that “[w]hen an
attorney is charged with an error concerning a legal question,
the trial court must initially determine whether the attorney
erred . . . .” We similarly read Baker as holding that to the
extent there is an issue as to what the law was and whether
the attorney correctly advised on such law is a question of law
for the court rather than a question of fact to be submitted to
the jury.
However, a critical issue in a legal malpractice case is a
question of fact regarding whether the attorney’s specific con-
duct fell below what the attorney’s specific conduct should
have been in that particular case. While the court might decide
that the attorney’s advice did not comport with the substance of
the law at the time it was given, it is a question of fact whether
under the particular circumstance the attorney’s conduct was
such that the attorney exercised such skill, diligence, and
knowledge as that commonly possessed by attorneys acting in
similar circumstances.
We note that subsequent to the decision in Baker, this court
in Boyle v. Welsh, 256 Neb. 118, 124, 589 N.W.2d 118, 124
(1999), explicitly held for the first time that “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.” Thus, reading Baker
in light of Boyle and other cases regarding questions of fact in
legal malpractice cases, we conclude that while it is a ques-
tion of law for the court as to whether an attorney’s advice
comports with the law or whether an attorney’s advice was
erroneous, the question whether such error caused the attorney

610 	286 NEBRASKA REPORTS
to fall below the standard of conduct is a question of fact and
expert testimony can be used to establish whether the conduct
was in conformity with the standard. See Young v. Govier &
Milone, supra.
Having reviewed these standards, we note that the ruling
of which Murray complains on cross-appeal was made by the
district court prior to the jury trial on the QTIP election claim.
That trial ended in a mistrial, and the court thereafter resolved
the claim by entering a directed verdict in favor of Murray
after the court determined that the claim was barred by the
statute of limitations and that the O’Daniels failed to show
damages. Thus, as the claim was resolved below, the court’s
ruling that Murray erred with respect to the substance of the
legal advice was not relevant to the resolution of the case. We
note further that on cross-appeal, Murray does not directly
argue that the court erred when it determined as a matter of
law that the disclaimers were invalid. Instead, Murray’s argu-
ment is that the court’s order was erroneous to the extent it
could be read to state that Murray’s actions with regard to the
disclaimer and the QTIP election were negligent. Because the
court’s determination that the disclaimers were not valid was
not relevant to the ultimate disposition of the claim below,
and because Murray does not specifically assign error to
such determination, we make no comment as to whether the
court was correct as a matter of law when it concluded that
the disclaimers were invalid. Instead, we provide the above
review of standards regarding questions of law and questions
of fact with regard to breach of the standard of care in order to
address Murray’s concern that the court’s ruling could be used
on remand to hold as a matter of law that Murray’s advice
was negligent, thereby subverting a jury finding with respect
to negligence.
CONCLUSION
With regard to the conflict of interest claim, we find no
error in the court’s entry of judgment in favor of Murray
based on the jury’s verdict that the claim was barred by the
statute of limitations. We therefore affirm the court’s judg-
ment in favor of Murray on the conflict of interest claim. With

GUINN v. MURRAY 	611
Cite as 286 Neb. 584
regard to the disclaimer advice claim, we conclude that the
district court erred when it concluded on summary judgment
that the statute of limitations barred the claim based on its
determination that the O’Daniels were put on inquiry notice
of the claim when they learned the amount of the tax liability
in April 2002. We therefore reverse the order granting sum-
mary judgment in favor of Murray on the disclaimer advice
claim, and we remand the cause for further proceedings on the
claim. With regard to the QTIP election claim, we conclude
that the district court erred when it concluded that the statute
of limitations barred the claim and when it concluded that the
O’Daniels failed to put on evidence of damages proximately
caused by Murray’s alleged negligence. We therefore reverse
the order granting a directed verdict in favor of Murray on
the QTIP election claim, and we remand the cause for further
proceedings on the claim. With regard to Murray’s cross-
appeal, we find no merit to the cross-appeal and we set forth
standards regarding questions of law and questions of fact in
a legal malpractice case that should be applied in the proceed-
ings on remand.
A ffirmed in PArt, And in PArt reversed And
remAnded for furtHer ProceedinGs.
miller-lermAn, J., participating on briefs.
WriGHt, mccormAcK, and cAssel, JJ., not participating.