Mehner v. Maxell

Decision Date23 November 2021
Docket NumberA-20-909
PartiesMark A. Mehner, appellant, v. Benjamin E. Maxell et al., appellees.
CourtNebraska Court of Appeals

Mark A. Mehner, appellant,
v.

Benjamin E. Maxell et al., appellees.

No. A-20-909

Court of Appeals of Nebraska

November 23, 2021


THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).

Appeal from the District Court for Douglas County: J. Michael Coffey, Judge. Vacated and dismissed.

Joshua D. Barber and Terry K. Barber, of Barber & Barber, P.C., L.L.O, for appellant.

Henry W. Frampton IV, Earl G. Greene III, and A. Victor Rawl, Jr., of Gordon & Rees, L.L.P, for appellee Christopher A. Pfanstiel.

Ronald F. Krause and Michael R. Faz, of Cassem, Tierney, Adams, Gotch & Douglas, for appellees Benjamin E. Maxell, Pamela Hogenson Govier, and Govier Katskee Suing & Maxell, P.C., L.L.O., and Does 1-100, inclusive.

Pirtle, Chief Judge, and Welch, Judge.

MEMORANDUM OPINION AND JUDGMENT ON APPEAL

Welch, Judge.

I. INTRODUCTION

Mark A. Mehner appeals the order of the Douglas County District Court which granted summary judgment in favor of Benjamin E. Maxell; Pamela Hogenson Govier; Govier Katskee Suing & Maxell, P.C., L.L.O. (law firm); and Does 1-100 inclusive, and dismissed his claim for legal malpractice. Mehner contends that the court erred in granting summary judgment; erroneously dismissing Christopher A. Pfanstiel from the action due to lack of timely service of process; and denying his motion to recuse. For the reasons set forth herein, we find that the district

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court lacked jurisdiction over this case and thus, we vacate the district court's order and dismiss this appeal for lack of jurisdiction.

II. STATEMENT OF FACTS

In February 2019, Mehner, acting pro se, commenced a professional negligence action against Maxell, Pfanstiel, Govier, the law firm, and numerous unidentified individuals identified as Does 1-100 alleging acts of legal malpractice in connection with the representation by these attorneys in two separate lawsuits: The Mehner Family Trust, et. al v. U.S. Bank N.A., et al. and REO Asset Management Company LLC v. The Mehner Family Trust, et. al. The nature of those two lawsuits, as relevant to this appeal, are described below.

1. Previous Lawsuits and Appeals

(a) U.S. Bank Lawsuit

In March 2014, Pfanstiel filed a lawsuit on behalf of the Mehner Family Trust, et al. against U.S. Bank N.A., et al. (U.S. Bank) in the Douglas County District Court (U.S. Bank Lawsuit) alleging that U.S. Bank and its assignees had repeatedly attempted to wrongfully foreclose on a residential property (subject property) owned by the Mehner Family Trust. Notably, as it relates to the subject property and the parties involved, the plaintiffs' complaint alleged:

8. Plaintiff the Mehner Family Trust . . . is a revocable living trust formed under an amended trust agreement dated October 3, 2005. The [Mehner Family Trust] purchased the real property, more specifically described below, that is the subject of this complaint on November 3, 2005. The real property is located in Douglas County, Nebraska
9. Plaintiff Raymond H. Mehner [Raymond] . . . is the Trustor and Trustee of the [Mehner Family Trust] and is the present title holder of the real property that is the subject of this Complaint
10. Plaintiff Barbara A. Mehner [Barbara] . . . is the spouse of [Ronald] and is the co-successor trustee of the [Mehner Family Trust]
11. Plaintiff Mark A. Mehner [Mehner] . . . is the Attorney-in-Fact for [the Mehner Family Trust] and is a resident of Douglas County, Nebraska.
12. Plaintiff Andrea L. Mehner [Andrea] . . . is the spouse of [Mehner] and is the co-successor trustee of the [Mehner Family Trust] and is a resident of Douglas County, Nebraska.
13. Plantiff Anthony Q. Mehner [Anthony] . . . is the son of [Mehner] and [Andrea], the grand-son [sic] of [Raymond] and [Barbara] and a beneficiary of the [Mehner Family Trust], and is a resident of Douglas County, Nebraska.
14. Plaintiff Danielle N. Mehner [Danielle] . . . is the daughter of [Mehner] and [Andrea], the grand-daughter [sic] of [Raymond] and [Barbara] and a beneficiary of the [Mehner Family Trust], and is a resident of Douglas County, Nebraska.
. . . .
39. On September 6, 2005[, ] a Purchase Agreement was executed . . . for the purchase of real property situated at 1201 and 1225 N. 138th Circle, Omaha, Nebraska 68154 ([subject] Property) for the amount of $ 1, 742, 500.
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. . . .
41. An application, in the form of a UNIFORM RESIDENTIAL LOAN APPLICATION (URLA) was taken. . . whereby [the Mehner Family Trust] applied for a loan in the amount of $1, 750, 000 to purchase [the subject] property.
. . . .
44. On or about October 3, 2005[, ] Plaintiff [Raymond] created the [Mehner] . . . Revocable Living Trust, in anticipation of the purchase of [the subject] Property, for the benefit of . . . his grandchildren--Plaintiffs [Anthony] and [Danielle].
. . . .
47. On or about November 3, 2005, [Raymond], as Trustor/Trustee and [Barbara], as Successor Trustee for the [Mehner Family Trust], at Wells Fargo Bank in Sioux City, IA, executed two (2) separate Deeds of Trust ("DOT") and two Adjustable Rate Notes in the respective amounts of $1, 306, 875 (First Note) and $174, 250 (Second Note), the proceeds of which . . . were used to purchase [the subject property] . . .
48. On or about November 3, 2005, as security for the First Note, [Raymond], as Trustor/Trustee of the [Mehner Family Trust], and [Barbara] as Successor Trustee of the [Mehner Family Trust], executed and delivered to HomeServices as Lender and Beneficiary their DOT on [the subject property].

The complaint then alleged 11 causes of action based in tort and contract law and challenged the assignment of the deeds of trust and the subsequent alleged wrongful foreclosure of the subject property. We will refer to the plaintiffs in the U.S. Bank Lawsuit as the U.S. Bank Plaintiffs.

After Pfanstiel left the law firm in October 2016, Maxell began representing the U.S. Bank Plaintiffs in the U.S. Bank Lawsuit. In December 2016, the district court granted summary judgment in favor of U.S. Bank and dismissed the U.S. Bank Plaintiff's action with prejudice based upon the court's finding that the U.S. Bank Plaintiffs lacked standing to challenge the assignment of the deeds of trust which was the underlying basis supporting their claims of wrongful foreclosure.

Following the denial of a motion to alter or amend, on February 28, 2017, Maxell filed an entry of appearance and a notice of appeal in the U.S. Bank Lawsuit; however, there was no praecipe for transcript or praecipe for bill of exceptions filed with the notice of appeal. On May 15, Maxell moved to withdraw from the appeal. On May 19, this court ordered that the final due date for appellant's brief was June 30. On May 26, Maxell filed a motion to extend the briefing deadline; this court extended the deadline to June 10. Although this court granted Maxell's motion to withdraw on June 1, Maxell reentered his appearance on June 8 and filed a second motion to extend the filing of the appellant's brief, which request was granted extending the briefing deadline to June 30. However, on June 23, prior to the briefing deadline, the U.S. Bank Plaintiffs fired Maxell.

On June 27, Pfanstiel, who was no longer associated with Maxell's firm, appeared as the U.S. Bank Plaintiffs' counsel. Pfanstiel requested a third extension for filing the appellant's brief on the basis that no bill of exceptions was available. In denying the motion for a third briefing extension, this court noted that, although the U.S. Bank Plaintiffs had filed a notice of appeal on

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February 28, they failed to comply with appellate rules by failing to file a praecipe for bill of exceptions until June 12. The U.S. Bank lawsuit appeal was ultimately dismissed by this court on July 3 due to the Plaintiffs' failure to file a brief. On July 7, Pfanstiel moved to reinstate the appeal, which request was denied by this court.

(b) REO Lawsuit

On July 25, 2015, REO Asset Management LLC filed a lawsuit in the Douglas County District Court against the Mehner Family Trust, Raymond, Barbara, Mehner, Andrea, Anthony, and Danielle (REO Defendants). The complaint alleged that, on November 19, 2015, REO purchased the subject property, which was in foreclosure, at a public auction and sought damages from the REO Defendants based upon unjust enrichment due to the REO Defendants' wrongful possession of the subject property (REO Lawsuit). In September 2016, the district court found that REO was entitled to restitution. The REO Defendants' appeal to this court was dismissed because "[t]he order being appealed from [did] not dispose of all of the claims of all of the parties as the cause of action for damages for unjust enrichment remain[ed] pending. See Neb. Rev. Stat. § 25-1315(1) (Reissue 2016)." Despite the dismissal, the REO Defendants ultimately reached a settlement with REO for $55, 000.

2. Current Lawsuit

On February 27, 2019, Mehner, acting pro se, filed the current complaint alleging that Pfanstiel, Maxell, Govier, and the law firm committed malpractice in representing the U.S. Bank Plaintiffs in the U.S. Bank Lawsuit and in representing the REO Defendants in the REO Lawsuit. More particularly, Mehner alleged that he is "the sole surviving beneficiary of the Mehner Family Trust" and that he has been

informed and believe[s] and thereon allege[s], at all times material hereto, Defendants Maxell, Pfanstiel, Govier, and Does 1 through 100, and each of them, were an employee, servant, or agent of the Defendant Law Firm, acting within the scope of their employment, master-servant, or agency relationship with Defendant Law Firm, while providing inter alia legal services, advice, and care to [Mehner]."

(Emphasis supplied.) The district court dismissed...

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