Dondlinger v. Nelson
| Decision Date | 22 May 2020 |
| Docket Number | No. S-19-428.,S-19-428. |
| Parties | Terry L. DONDLINGER and Valerie Dondlinger, appellants, v. Jayson D. NELSON, an individual, et al., appellees. |
| Court | Nebraska Supreme Court |
NATURE OF CASE
This appeal involves a legal malpractice action brought by Terry L. Dondlinger and Valerie Dondlinger which the district court for Douglas County dismissed as time barred. The district court concluded that the continuing representation exception to the 2-year statute of limitations in Neb. Rev. Stat. § 25-222 (Reissue 2016) did not apply. Instead, because the Dondlingers discovered the allegedly negligent act prior to the termination of the attorney-client relationship, the 1-year discovery rule in § 25-222 did apply and the Dondlingers’ action was time barred. The district court granted the defendants’ motion for summary judgment and dismissed the Dondlingers’ action with prejudice. The Dondlingers appeal.
STATEMENT OF FACTS
On May 18, 2018, the Dondlingers filed a complaint against defendants Jayson D. Nelson and Hunegs, LeNeave & Kvas, P.A. On June 12, the Dondlingers amended their complaint and added Katie D. Figgins as a defendant. The complaints against the three defendants (collectively the appellees) set forth claims of professional negligence relating to the appellees’ legal representation of the Dondlingers in a personal injury action for an accident that occurred on April 6, 2012. This personal injury action forms the underlying case in the current legal malpractice appeal.
In their controlling complaint, the Dondlingers allege that in the underlying case, the appellees "negligently failed to properly file a Tort Claim pursuant to the Nebraska Political Subdivision Claims Act, Neb. Rev. Stat. § 13-901 et seq. " on Nickerson Township, Dodge County, Nebraska. In the underlying case, Nickerson Township was granted summary judgment and dismissed from the case. The appellees, representing the Dondlingers, filed a notice of appeal to the Nebraska Court of Appeals in November 2015 in case No. A-15-1108. During the pendency of case No. A-15-1108, the appellees filed a response to an order to show cause and a motion for extension of time to file a brief on behalf of the Dondlingers. The appeal was ultimately dismissed in May 2016 for their failure to file a brief.
In Nelson’s affidavit filed in the current legal malpractice case, he explained how he informed the Dondlingers of the alleged negligence in the underlying case and the outcome in the Court of Appeals. The affidavit states:
The Dondlingers’ answers to the appellees’ interrogatories in the current legal malpractice case state that "[w]ithin thirty (30) days after June 23, 2016," (1) the Dondlingers discovered the fact that the appellees had failed to properly file their tort claim in the underlying case and (2) the Dondlingers’ attorney-client relationship with the appellees ended. The appellees do not dispute these assertions.
The Dondlingers filed the present action on May 18, 2018, which, given discovery within 30 days after June 23, 2016, was after the 1-year discovery rule contained in § 25-222 but within the general 2-year statute of limitations for professional negligence set forth in § 25-222. The Dondlingers argued to the district court and again on appeal that their claim did not accrue until the continuing representation by the appellees ended, that the 2-year limitations period started on the termination of the relationship, and that their action was timely. The appellees filed a motion for summary judgment in the district court on the basis of the statute of limitations, § 25-222.
On January 2, 2019, the district court granted the appellees’ motion for summary judgment and dismissed the Dondlingers’ action with prejudice. The Dondlingers filed a motion to alter or amend the judgment. The district court, on its own motion, vacated its prior order and requested that the parties provide supplemental briefing on the "continuous representation doctrine." On April 30, the district court denied the motion to alter or amend and entered an order granting summary judgment in favor of the appellees. In reaching its decision, the district court concluded that the continuous representation doctrine did not toll the accrual of the action, because the Dondlingers had discovered the alleged negligence during the course of the attorney-client relationship. The court determined that the action was time barred because the Dondlingers filed their claim for professional negligence more than 1 year after discovery of the alleged negligent act.
The Dondlingers appeal.
ASSIGNMENT OF ERROR
The Dondlingers claim that the district court erred when it dismissed their amended complaint as untimely. They contend that the 2-year statute of limitations was tolled because the appellees continued to represent them during the appeals process.
STANDARDS OF REVIEW
Summary judgment is proper when the pleadings and the evidence admitted at the hearing disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law. Meyer Natural Foods v. Greater Omaha Packing Co. , 302 Neb. 509, 925 N.W.2d 39 (2019). 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 those facts and that the moving party is entitled to judgment as a matter of law. Id.
ANALYSIS
Reduced to its essence, the Dondlingers argue that the continuous relationship doctrine tolled the statute of limitations, thereby giving them 2 years to file their legal malpractice case after learning of their attorneys’ alleged negligence. The Dondlingers claim that the district court erred when it ruled that because the continuous relationship did not apply, the Dondlingers’ complaint was subject to the 1-year discovery rule and was time barred. We find no merit to the Dondlingers’ argument and therefore affirm the dismissal of the Dondlingers’ action.
In this case, the appellees successfully moved for summary judgment. The primary purpose of the summary judgment procedure is to pierce the allegations in the pleadings and show conclusively that the controlling facts are other than as pled. Williamson v. Bellevue Med. Ctr. , 304 Neb. 312, 934 N.W.2d 186 (2019). Neb. Rev. Stat. § 25-1332(1) (Cum. Supp. 2018) provides in part that a motion for summary judgment shall be granted "if the pleadings and the evidence admitted at the hearing show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law." 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. Williamson v. Bellevue Med. Ctr., supra . 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. Id.
The Dondlingers’ legal malpractice action is a claim of professional negligence, and we turn to § 25-222 to determine the timeliness of the cause of action. Section 25-222 provides:
Any action to recover damages based on alleged professional 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 rendering 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.
If a claim for professional negligence in the nature of legal malpractice 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 discovery exception of § 25-222 or has been tolled pursuant to the continuous representation rule. See Guinn v. Murray , 286 Neb. 584, 837 N.W.2d 805 (2013). We discussed the two exceptions to the 2-year provision in § 25-222 in recent case law. See Guinn, supra .
With regard to the discovery rule, in Guinn , we stated:
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...
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