Perez v. Stern, S-07-904.
| Decision Date | 15 January 2010 |
| Docket Number | No. S-07-904.,S-07-904. |
| Citation | 777 N.W.2d 545,279 Neb. 187 |
| Parties | Esteban PEREZ, a minor child, brought by his natural mother and next friend, Reyna Guido, et al., appellants, v. Sandra STERN, appellee. |
| Court | Nebraska Supreme Court |
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Steven H. Howard, of Dowd, Howard & Corrigan, L.L.C., Omaha, for appellants.
Robert M. Slovek and Kathryn E. Jones, of Kutak Rock, L.L.P., Omaha, for appellee.
Appellant Reyna Guido filed legal malpractice claims against appellee, Sandra Stern, on behalf of herself, her two children, and the estate of Domingo Martinez. Guido had hired Stern to prosecute a wrongful death claim against persons alleged to be responsible for Martinez' death. Stern filed the complaint, but it was not served within 6 months of filing, so the case was dismissed. Almost 3 years later, Guido filed these legal malpractice claims. The district court granted Stern's motion for summary judgment, finding that the malpractice claims were barred by the statute of limitations.
The issue in this case is whether Stern owed an independent duty to the children, as Martinez' statutory beneficiaries, to exercise reasonable care in prosecuting the underlying wrongful death claim, permitting the children to bring individual malpractice claims for which the statute of limitations had been tolled because of their minority. For the reasons that follow, we conclude that Stern owed a duty to the children and reverse the court's judgment against their claims.
Guido is the mother of two minor children. Martinez, the children's father, died after he was run over by a car on July 8, 2001. Martinez was the victim of a hit-and-run accident.
Guido, as personal representative of Martinez' estate, retained Stern to file a wrongful death lawsuit. On July 8, 2003, Stern filed a wrongful death complaint in the district court. But Stern admits that she never perfected service of the complaint, and because the complaint was not served within 6 months of filing, the case was dismissed by operation of law.1 The district court formalized the dismissal on May 7, 2004.
Stern never contacted Guido, and eventually Guido hired a new attorney. Guido's new attorney sent Stern a letter dated December 5, 2005, requesting Guido's client file. After several more letters, the client file was finally delivered on February 6, 2006. On February 6, 2007, Guido filed these legal malpractice claims against Stern on behalf of herself, the children, and the estate. Guido alleged that the wrongful death claim expired as a result of Stern's failure to timely perfect service of the complaint. Stern moved for summary judgment on the ground that the malpractice claims were barred by the 2-year statute of limitations for professional negligence.2 Before the court ruled on the motion, Guido voluntarily dismissed her individual claim, but maintained claims as personal representative of the estate and next friend of the children.
The district court found that the malpractice claims accrued on May 7, 2004, when the wrongful death claim was dismissed. The court found that the estate's claim against Stern was time barred. In response to Guido's argument that the children's minority tolled the statute of limitations with respect to them, the court found that because the children could not have brought the underlying wrongful death claim in their own names,3 the statute of limitations for the legal malpractice claims was not tolled by reason of the children's minority. The court granted summary judgment in favor of Stern and dismissed the complaint.
Guido assigns, consolidated and restated, that the district court erred in granting Stern's motion for summary judgment on her affirmative defense of the statute of limitations and, specifically, determining that the children had no independent standing to sue Stern and that Stern owed no independent duty to the minor children to protect their rights and interests.
We note that neither Guido's assignments of error nor the argument in her appellate brief challenges the district court's dismissal of Guido's claims as an individual and as personal representative of Martinez' estate. Therefore, those aspects of the court's judgment will be affirmed.
Summary judgment is proper where the facts are uncontroverted and the moving party is entitled to judgment as a matter of law.4 In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the party against whom the judgment was granted, giving that party the benefit of all reasonable inferences deducible from the evidence.5
Whether a legal duty exists for actionable negligence is a question of law dependent on the facts in a particular case.6 When reviewing questions of law, an appellate court has an obligation to resolve the questions independently of the conclusion reached by the trial court.7
The issue in this case is whether Stern owed an independent duty to the children, as Martinez' next of kin, to timely prosecute the underlying wrongful death claim. Guido argues that Stern committed legal malpractice when Stern breached her duty to timely prosecute the wrongful death claim against the underlying tort-feasors, and that because Stern owed an independent duty to the children, the statute of limitations is tolled on their legal malpractice claims. Stern, on the other hand, argues that because the children never had their own claims for relief in the underlying wrongful death action, they lack standing to bring professional negligence claims against Stern.
We agree with Guido that if the children have malpractice claims against Stern, the statute of limitations on those claims has been tolled by the children's minority.8 In order to have claims for professional negligence against Stern, the children must prove (1) Stern's employment, (2) Stern's neglect of a reasonable duty to the children, and (3) that such negligence was the proximate cause of damages to the children.9 In this appeal, Stern's employment to prosecute the wrongful death claim is undisputed, and damages are not yet at issue—the dispositive question is whether Stern owed the children a legal duty.
In Nebraska, a lawyer owes a duty to his or her client to use reasonable care and skill in the discharge of his or her duties, but ordinarily this duty does not extend to third parties, absent facts establishing a duty to them.10 Guido argues first that the children had an attorney-client relationship with Stern. Guido's contention that Stern was the attorney for the children is, however, contrary to the well-established principle that when an attorney is employed to render services for an estate, he or she acts as attorney for the personal representative.11 Although the minor children would have benefited from a successful wrongful death claim, there are no facts in this record to establish an attorney-client relationship between Stern and the minor children.
But that does not end our analysis. Contrary to Stern's suggestion, we have never said that privity is an absolute requirement of a legal malpractice claim. Instead, we have said that a lawyer's duty to use reasonable care and skill in the discharge of his or her duties ordinarily does not extend to third parties, absent facts establishing a duty to them.12 On the facts of this case, we conclude, as have other courts to have addressed this issue in the context of a wrongful death action,13 that the facts establish an independent legal duty from Stern to Martinez' statutory beneficiaries.
Although we have often said that an attorney's duty may extend to a third party if there are facts establishing a duty,14 we have not articulated specific standards to guide the determination of whether such a duty exists. The substantial majority of courts to have considered that question have adopted a common set of cohesive principles for evaluating an attorney's duty of care to a third party, founded upon balancing the following factors: (1) the extent to which the transaction was intended to affect the third party, (2) the foreseeability of harm, (3) the degree of certainty that the third party suffered injury, (4) the closeness of the connection between the attorney's conduct and the injury suffered, (5) the policy of preventing future harm, and (6) whether recognition of liability under the circumstances would impose an undue burden on the profession.15 And courts have repeatedly emphasized that the starting point for analyzing an attorney's duty to a third party is determining whether the third party was a direct and intended beneficiary of the attorney's services.16
We agree. Under Nebraska law, an attorney's professional misconduct gives rise to a tort action for professional negligence;17 the factors discussed above are effectively a fact-specific iteration of the basic risk-utility principles that we have generally relied upon in determining the scope of a tort duty.18 And when an attorney is retained specifically to advance the interests of third parties, absent countervailing circumstances, it makes no sense to conclude that the attorney owes no duty to those parties to advance their interests competently. We decline to exalt form over substance when the purpose of the attorney's retention was clear to both the attorney and the client.
Those balancing factors also support a number of important, specific limitations on liability in attorney malpractice cases. First, the attorney's agreement with the client determines the scope of the attorney's duty to a third-party beneficiary; the duty to use due care as to the interests of the intended beneficiary must arise out of the attorney's agreement with the client.19 An attorney may limit the scope of his or her representation by obtaining the informed consent of...
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