Egan v. Stoler, S-01-461.
| Decision Date | 13 December 2002 |
| Docket Number | No. S-01-461.,S-01-461. |
| Citation | 265 Neb. 1,653 N.W.2d 855 |
| Parties | Timothy S. EGAN, Appellant, v. Alan G. STOLER, Appellee. |
| Court | Nebraska Supreme Court |
Thomas M. Locher, Omaha, and Robyn R. Loveland, of Locher, Cellilli, Pavelka & Dostal, L.L.C., for appellant.
William R. Johnson and Raymond E. Walden, of Lamson, Dugan & Murray, L.L.P., Omaha, for appellee.
Timothy S. Egan appeals from an order sustaining a motion for summary judgment in favor of appellee, Alan G. Stoler. The district court found Egan's claims barred by the statute of limitations for professional negligence. We conclude that Egan has abandoned all of his claims except whether a statute of limitations for professional negligence applies to the claim of a conflict of interest and, if so, whether the statute of limitations ran barring Egan from bringing a professional negligence cause of action against Stoler. We conclude that Egan's claim is time barred by the 2-year professional negligence statute of limitations, but our analysis differs from the district court's analysis. Accordingly, we affirm the district court's order.
In May 1992, Egan, a licensed attorney, was convicted in federal court on criminal conspiracy to distribute methamphetamine. In September 1992, Egan was sentenced to 188 months in federal prison. After trial, Egan dismissed his trial counsel and retained Stoler to appeal his conviction.
On November 23, 1992, Egan and Stoler met for the first time at the Federal Medical Center in Rochester, Minnesota, where Egan was confined. Initially and throughout their conversations, Egan alleges he indicated to Stoler his desire to pursue a claim of ineffective assistance of trial counsel. Egan claims specifically to have asked Stoler if he was aware of any rumors that his trial counsel had abused drugs or alcohol during his representation of Egan. Egan claims that Stoler denied having such knowledge. At the same time, however, Stoler was representing a client who testified before a grand jury investigating Egan's trial counsel's involvement in drug-related crimes. Egan alleges that Stoler did not advise Egan of his potential conflict of interest at this time.
In June 1993, Stoler filed Egan's direct appeal in the Eighth Circuit Court of Appeals. The appeal did not raise the issue of ineffective assistance of trial counsel. Both Stoler and Egan agreed to this strategy. On September 13, Stoler argued the appeal in front of the Eighth Circuit. On February 28, 1994, the Eighth Circuit affirmed Egan's conviction.
In the following months, Egan discussed with Stoler the possibility of filing for a rehearing en banc to the Eighth Circuit Court of Appeals and the possibility of filing a writ of certiorari to the U.S. Supreme Court. Neither strategy was employed. In May 1994, Stoler's formal representation of Egan ended. Egan paid Stoler $37,000 for his services.
In September 1994, Egan was disbarred as a result of his conviction. See State ex rel. NSBA v. Egan, 246 Neb. 583, 520 N.W.2d 779 (1994). While at the Federal Medical Center, Egan learned of the criminal investigation of his trial counsel by the office of the U.S. Attorney, the same office that had prosecuted Egan. Based on this newly discovered evidence, Egan asked Stoler to represent him again on a motion for new trial. Stoler considered the relevant case law for approximately a month. On October 5, 1994, Stoler informed Egan of his potential conflict of interest in that he had represented a client who testified at Egan's trial counsel's grand jury criminal investigation in September 1992.
On October 2, 1995, Egan sued Stoler in state district court on three counts: (1) negligence, (2) fraudulent misrepresentation, and (3) breach of contract. Specifically, Egan alleged that Stoler failed to raise all relevant issues in Egan's direct appeal before the Eighth Circuit. Furthermore, Egan alleged that Stoler failed to disclose the existence of a conflict of interest throughout his representation of Egan, which directly affected Stoler's ability to independently and zealously represent Egan. Egan alleged that he would have been unable to discover the conflict of interest even in the exercise of reasonable diligence. In addition, Egan alleges that Stoler misrepresented his knowledge of Egan's trial counsel's alleged chemical dependency. Egan alleges that he relied upon Stoler's false representations to his detriment. Egan's petition seeks return of the $37,000 fee paid to Stoler.
The district court granted summary judgment in favor of Stoler on the basis that the 2-year statute of limitations under Neb.Rev.Stat. § 25-222 (Reissue 1995) for professional negligence had expired. The district court reasoned that the basis of Egan's damages was the alleged failure of Stoler to raise all relevant issues on Egan's direct appeal. Specifically, the court held that Egan knew or should have known, on or before July 1, 1993, of Stoler's alleged failure to raise an ineffective assistance of counsel claim at the time his appellate brief had been presented for review. Egan filed his lawsuit against Stoler on October 2, 1995, more than 2 years after he knew or should have known of the alleged acts giving rise to his claim. The district court granted summary judgment based upon its determination that the discovery exception of § 25-222 allowing suit within 1 year of discovery of the cause of action was not applicable. Egan appeals.
Egan assigns that the district court erred by ruling that the 2-year statute of limitations, at § 25-222 and applicable to professional negligence, barred him from seeking reimbursement for attorney fees paid to Stoler. Egan contends that the conduct of Stoler in agreeing to represent him while knowingly operating under a conflict of interest does not give rise to the application of any statute of limitations. Egan claims that therefore, the district court erred in applying the aforementioned statute of limitations and in not requiring that the aforementioned fees be disgorged. Egan claims the district court should have determined that there is no time limitation for the disgorgement of fees paid to any attorney who knew of or should have known of a conflict of interest.
On a motion for summary judgment, the question is not how a factual issue is to be decided, but whether any real issue of material fact exists. Mondelli v. Kendel Homes Corp., 262 Neb. 263, 631 N.W.2d 846 (2001); Morrison Enters. v. Aetna Cas. & Surety Co., 260 Neb. 634, 619 N.W.2d 432 (2000); Sack Bros. v. Tri-Valley Co-op., 260 Neb. 312, 616 N.W.2d 786 (2000).
In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence. Richmond v. Case, 264 Neb. 319, 647 N.W.2d 90 (2002); Smeal v. Olson, 263 Neb. 900, 644 N.W.2d 550 (2002); Polinski v. Sky Harbor Air Serv., 263 Neb. 406, 640 N.W.2d 391 (2002).
Statutory interpretation presents a question of law. When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court. In re Application No. C-1889, 264 Neb. 167, 647 N.W.2d 45 (2002).
In his reply brief, Egan states that "the issue before this Court is only one: whether a statute of limitations applies to the claim of conflicts of interest and, if so, whether the statute of limitations ran disabling [Egan] from bringing a professional negligence cause of action against Stoler." Reply brief for appellant at 1. We take this statement by Egan at face value and conclude that Egan has abandoned all of his claims save "whether a statute of limitations applies to the claim of conflicts of interest and, if so, whether the statute of limitations ran disabling [Egan] from bringing a professional negligence cause of action against Stoler."
The statute of limitations for professional negligence in § 25-222 provides in relevant part:
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...
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