Gravel v. Schmidt, S-93-485

• Court: Supreme Court of Nebraska
• Citation: 527 N.W.2d 199,247 Neb. 404
• Docket Number: No. S-93-485,S-93-485
• Parties: Tim GRAVEL, Appellant, v. Roberta SCHMIDT and William Tomek, Appellees.
• Decision Date: 10 February 1995

Page 199

527 N.W.2d 199 247 Neb. 404 Tim GRAVEL, Appellant,
v.
Roberta SCHMIDT and William Tomek, Appellees. No. S-93-485. Supreme Court of Nebraska. Feb. 10, 1995.

Page 200

Syllabus by the Court

1. Appeal and Error. To be considered by an appellate court, an error must be assigned and discussed in the brief of the one claiming that prejudicial error has occurred.

2. Summary Judgment: Appeal and Error. In appellate review of a summary judgment, the court views the evidence in a light most favorable to the party against whom judgment is granted and gives that party the benefit of all reasonable inferences deducible from the evidence.

3. Summary Judgment. Summary judgment is to be granted only when the [247 Neb. 405] pleadings, depositions, admissions, stipulations, and affidavits in the record 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.

4. Negligence: Actions. Merely because a cause of action is couched in terms of a cause of action other than negligence does not make it so.

5. Negligence: Actions: Attorney and Client. While it is true that an attorney-client relationship rests in contract, an attorney's alleged professional misconduct does not give rise to a breach of contract action, but, rather, gives rise to a professional negligence action.

6. Malpractice: Attorney and Client: Proof. In order to recover in an action for legal malpractice, the plaintiff must allege and prove (1) a duty, (2) breach of that duty, (3) proximate cause, and (4) resulting damage.

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7. Attorney and Client. A lawyer's duty is to his or her client and does not extend to third parties absent some facts which establish a duty.

8. Summary Judgment: Proof. A party moving for summary judgment has the burden to show that no genuine issue of material fact exists and must produce sufficient evidence to demonstrate that if the evidence presented for summary judgment remains uncontroverted, the moving party is entitled to judgment as a matter of law.

9. Summary Judgment: Proof. After the moving party has shown facts entitling it to judgment as a matter of law, the opposing party has the burden to present evidence showing an issue of material fact which prevents judgment as a matter of law for the moving party.

David L. Kimble, Seward, for appellant.

Kristine K. Kluck and Milton A. Katskee, of Katskee, Henatsch & Suing, Omaha, for appellee Tomek.

HASTINGS, C.J., WHITE, CAPORALE, FAHRNBRUCH, WRIGHT, and CONNOLLY, JJ.

WHITE, Justice.

Tim Gravel sued attorney William Tomek for breach of contract, alleging that Tomek promised Gravel that he would inherit a sum of money that was substantially more than what Gravel actually inherited. Tomek filed a motion for summary judgment arguing that no contract ever existed between Tomek and Gravel. The district court granted Tomek's motion, and Gravel appeals.

Helen V. Gravel died in August 1985. She was survived by [247 Neb. 406] her husband, Robert; two sons, Mark and Tim; and one daughter, Roberta Schmidt. Helen Gravel named Schmidt as personal representative of the estate. Schmidt retained Tomek as attorney for the estate. Robert Gravel died in 1988, and shortly thereafter, heirs Mark, Tim, and Roberta met with Tomek to discuss settling the estate.

In his affidavit, Tomek states that he contacted Securities Management & Research, Inc. (SMR), a mutual fund manager and distributor, which informed Tomek that Helen Gravel had approximately 20,000 shares in her account with SMR. Believing that information to be true, Tomek calculated the value of her shares to be in excess of $400,000.

Tim Gravel alleges in his fourth amended petition that Tomek promised Gravel that he would inherit somewhere between $50,000 and $100,000 from the estate. Relying on Tomek's alleged promise, Gravel entered into a contract for the purchase of real property.

Gravel actually received approximately $15,000 upon receipt of the final report of the estate and alleges that he subsequently defaulted on the land purchase contract. Gravel claims that Tomek breached a contract formed between Tomek and Gravel, because Gravel inherited substantially less than Tomek promised. Gravel appealed the district court's granting of Tomek's motion for summary judgment to the Nebraska Court of Appeals, and pursuant to our authority to regulate the caseloads of the appellate courts, we removed this case from the Court of Appeals docket to the Nebraska Supreme Court docket.

Gravel claims that the district court erred in granting Tomek's motion for summary judgment and in overruling Gravel's motion for new trial. To be considered by an appellate court, an error must be assigned and discussed in the brief of the one...