Harris v. O'Connor ( 2014 )

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182 287 NEBRASKA REPORTS
K eith Harris, appellant, v. Robert E.
O’Connor, Jr., appellee.
___ N.W.2d ___
Filed January 10, 2014. No. S-13-103.
1. Summary Judgment. Summary judgment is proper if the pleadings and admis-
sible evidence offered at the hearing 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.
2. Summary Judgment: Appeal and Error. 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, and gives that party the benefit of all reasonable
inferences deducible from the evidence.
3. Malpractice: Attorney and Client: Negligence: Proof: Proximate Cause:
Damages. In a civil action for legal malpractice, a plaintiff alleging professional
negligence on the part of an attorney must prove three elements: (1) the attor-
ney’s employment, (2) the attorney’s neglect of a reasonable duty, and (3) that
such negligence resulted in and was the proximate cause of loss to the client.
4. Malpractice: Attorney and Client: Negligence: Proof. When a plaintiff asserts
attorney malpractice in a civil case, the plaintiff must show that he or she would
have been successful in the underlying action but for the attorney’s negligence.
Appeal from the District Court for Douglas County: Timothy
P. Burns, Judge. Affirmed.
Thomas D. Wulff and Thomas J. Freeman, of Wulff &
Freeman, L.L.C., for appellant.
William M. Lamson, Jr., and Jason W. Grams, of Lamson,
Dugan & Murray, L.L.P., for appellee.
Heavican, C.J., Wright, Connolly, Stephan, McCormack,
Miller-Lerman, and Cassel, JJ.
Heavican, C.J.
I. INTRODUCTION
Appellant, Keith Harris, brought this action against appel-
lee, Robert E. O’Connor, Jr., for professional malpractice.
O’Connor’s motion for summary judgment was granted.
We affirm.
II. FACTUAL BACKGROUND
Harris, a former captain with the Omaha Police Department,
retained O’Connor, an attorney, to represent him in several
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actions, including one to obtain disability benefits from the city
of Omaha, Nebraska.
A hearing on Harris’ petition for benefits was held before
the City of Omaha Police and Fire Retirement System Board
of Trustees (Board) on January 20, 2011. At the hearing,
O’Connor presented five exhibits relating to Harris’ medical
records and opinions from Harris’ treating medical providers.
The minutes note that O’Connor asked the Board to take judi-
cial notice of its own rules, regulations, and applicable ordi-
nances. There is no indication either in the minutes or in the
audio recording of the hearing whether the Board would do so.
Harris’ application was denied.
Harris met with O’Connor to discuss how to proceed.
Specifically, the two discussed whether the decision of the
Board should be appealed to the district court. Harris and
O’Connor held e-mail conversations after this meeting. At
some point during these conversations, O’Connor expressed
concern about whether the record was properly made before
the Board because the applicable ordinances were not offered
into evidence. According to O’Connor’s affidavit, he had con-
cluded prior to the hearing that he could ask the Board to take
judicial notice of the applicable ordinances and then request
the inclusion of those ordinances in his praecipe for transcript
to the district court.
But based on conversations with the Omaha city clerk,
O’Connor later decided that going back before the Board
might be the better option. In an e-mail dated February 9,
2011, O’Connor wrote to Harris: “I talked first to . . . the
City Clerk. He is of the opinion that we should go back to
the Board, and offer the Ordinances physically. While there
is no rule that says you have to do it that way, he thinks it
[is] safer.”
In response, Harris indicated that he would “like to go
with the safest most certain route” and also inquired as to the
“statu[t]e of limitations . . . on the appeal of the . . . Board’s
decision.” O’Connor indicated that he would have to “look
again at the limitation period for filing in District Court. But, if
we are going back to the Board, it doesn’t make any difference.
Whatever the clock is, it starts over when we go back.”
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Harris answered that he “think[s] we should be safe rather
than sorry and go to District Court with the January 20th . . .
Board Hearing safely inside our limitation lines.” O’Connor
responded, “I do not understand this email. If we appeal now,
we do not go back to the Board . . . . Which do you wan[t]?”
Harris replied:
E-mail is a difficult medium. (smiling)
I was responding to the following part of your e-mail:
“I have to look again at the limitation period for filing
in District Court. But, if we are going back to the Board,
it doesn’t make any difference. Whatever the clock is, it
starts over when we go back.”
I agree with the path we have set. I am not asking to
change it over-all. The thought I am conveying is that
we should use January 20th (The first . . . Board meeting
date) as our date for satisfying the statute of limitations.
(Once that date is determined[.]) It seems to me that using
the January 20th date is the safest way to go so District
Court can not [sic] say they can’t consider things that
occurred in the meeting on the 20th due to the date being
beyond the statute of limitations. (It is a redundancy, pos-
sibly, but I like fail safe planning[.])
O’Connor answered, “[s]o, basically, we agree, some days
email sucks.”
Harris terminated his relationship with O’Connor on
February 28, 2011. At the time of the termination, no appeal
had been filed from the Board’s decision, nor had the Board
been asked to rehear its denial of Harris’ petition for disabil-
ity benefits.
Harris filed suit against O’Connor for professional malprac-
tice on February 8, 2012; an amended complaint was filed on
December 4. In his amended complaint, Harris alleged that
O’Connor committed legal malpractice when he failed to (1)
investigate the proper procedure to enter an ordinance into evi-
dence, (2) introduce the ordinance into evidence at the hearing
before the Board, and (3) file an appeal of the Board’s denial
to the district court.
O’Connor filed for summary judgment. At the hearing
on the motion for summary judgment, Harris offered expert
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testimony on the procedures to be followed when preserv-
ing a record for appellate purposes. Following the hearing,
O’Connor’s motion for summary judgment was granted. In
granting the motion, the district court reasoned that Harris
could not prevail on his claim unless he could show that he
would have been successful in the underlying action but for
O’Connor’s alleged negligence. The district court found that
in this case, Harris never directed O’Connor to file an appeal
of the Board’s decision with the district court. The court also
noted that O’Connor had properly preserved the record before
the Board such that an appeal would have been possible. In
reaching the latter conclusion, the district court noted that
it disagreed with Harris’ expert, whose opinion was that the
record was not preserved. The district court also noted that the
expert’s testimony was not “allowed,” because the question
was a legal one.
III. ASSIGNMENTS OF ERROR
On appeal, Harris assigns, restated and consolidated, that
the district court erred in (1) granting O’Connor’s motion for
summary judgment and (2) “refusing to allow evidence from
experts on the issue of legal malpractice.”
IV. STANDARD OF REVIEW
[1] Summary judgment is proper if the pleadings and admis-
sible evidence offered at the hearing show that there is no gen-
uine issue as to any material facts or as to the ultimate infer-
ences that may be drawn from those facts and that the moving
party is entitled to judgment as a matter of law.1
[2] 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, and gives that
party the benefit of all reasonable inferences deducible from
the evidence.2
1
Southwind Homeowners Assn. v. Burden, 283 Neb. 522, 810 N.W.2d 714
(2012).
2
Churchill v. Columbus Comm. Hosp., 285 Neb. 759, 830 N.W.2d 53
(2013).
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V. ANALYSIS
1. Motion for Summary Judgment
Harris first assigns that the district court erred in granting
O’Connor’s motion for summary judgment.
[3,4] In a civil action for legal malpractice, a plaintiff alleg-
ing professional negligence on the part of an attorney must
prove three elements: (1) the attorney’s employment, (2) the
attorney’s neglect of a reasonable duty, and (3) that such
negligence resulted in and was the proximate cause of loss to
the client.3 When a plaintiff asserts attorney malpractice in a
civil case, the plaintiff must show that he or she would have
been successful in the underlying action but for the attorney’s
negligence.4
In Harris’ amended complaint, he alleged that O’Connor was
negligent in three ways: failing to investigate how to preserve
the record before the Board, failing to properly preserve that
record, and failing to appeal the Board’s decision to the dis-
trict court.
(a) Appellate Record
Harris alleges first that O’Connor failed to investigate
and properly preserve the record before the Board for appel-
late review.
The facts show that O’Connor asked the Board to take judi-
cial notice of the applicable ordinances. The Board did not
audibly respond to this request. But our case law makes it clear
that the Board was required to take such notice of its own ordi-
nances.5 And because the Board adjudicated Harris’ petition
on the merits, the Board obviously took judicial notice of the
ordinances in question.
3
Young v. Govier & Milone, 286 Neb. 224, 835 N.W.2d 684 (2013).
4
See Bowers v. Dougherty, 260 Neb. 74, 615 N.W.2d 449 (2000).
5
Foley v. State, 42 Neb. 233, 60 N.W. 574 (1894). See State v. Lewis, 240
Neb. 642, 483 N.W.2d 742 (1992) (Caporale, J., dissenting). Cf., Owen,
Administrator v. Moore, 166 Neb. 226, 88 N.W.2d 759 (1958); State v.
Hohensee, 164 Neb. 476, 82 N.W.2d 554 (1957); Spomer v. Allied Electric
& Fixture Co., 120 Neb. 399, 232 N.W. 767 (1930).
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And the ordinances were properly preserved for appeal. The
ordinance rule provides that an appellate court
cannot undertake to notice the ordinances of all the
municipalities within its jurisdiction, nor to search the
records for evidence of their passage, amendment or
repeal. A party relying upon such matters must make them
a part of the bill of exceptions, or in same manner present
them as a part of the record.6
In this case, it is undisputed that O’Connor did not offer the
ordinances as exhibits. But this court held in State v. Bush7 that
the responsibility of preserving the ordinances in the record
can be “met by a praecipe requesting that a copy of the ordi-
nance be included in the transcript prepared by the clerk of the
county court when a notice of appeal is filed.” In this case,
the record shows that the custodian of those ordinances is the
Omaha city clerk; the Omaha city clerk is also the custodian of
the records of the Board. In this instance, then, the Omaha city
clerk could produce both the ordinances and the Board records
when submitting documents to fulfill the requests made in
the praecipe.
Harris argues that the “exception” to the ordinance rule is
applicable only in criminal cases. But he cites to no authority
for this position, and we decline to make such a distinction.
The fact that Bush is a criminal case is insufficient to suggest
that this “exception” is applicable only in criminal cases.
Harris’ contention that O’Connor failed to investigate and
preserve the record for appellate purposes is without merit.
Harris is unable to show that O’Connor’s actions consti-
tuted neglect, and accordingly, summary judgment was
appropriate.
(b) Appeal
Harris also alleged that O’Connor committed malpractice
when he failed to file an appeal of the Board’s January 20,
6
Steiner v. State, 78 Neb. 147, 150, 110 N.W. 723, 724 (1907). See, also,
State v. Abbink, 260 Neb. 211, 616 N.W.2d 8 (2000).
7
State v. Bush, 254 Neb. 260, 266, 576 N.W.2d 177, 180 (1998).
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2011, decision. The district court, in granting O’Connor’s
motion for summary judgment, found that there was no evi-
dence in the record that Harris had told O’Connor’s motion for
to appeal the Board’s denial. Because we find that Harris has
not produced evidence to show that O’Connor’s actions con-
stituted neglect or that Harris was harmed, the district court’s
grant of summary judgment was correct.
First, there is no genuine issue of material fact on the ques-
tion of whether Harris directed O’Connor to appeal. In the
days following the unsuccessful Board hearing, Harris and
O’Connor met and then exchanged e-mails regarding how to
proceed. There is no allegation or suggestion that during their
face-to-face meeting, Harris told O’Connor to appeal.
More discussion on the topic was had via e-mail on February
9 and 10, 2011. We agree that these e-mails were confus-
ing. But broadly understood, the e-mails suggest that Harris
and O’Connor were in agreement that a rehearing before the
Board should be sought and would likely show a genuine
issue of material fact as to whether Harris told O’Connor to
file for a rehearing. But Harris did not allege in his amended
complaint that O’Connor committed malpractice by failing to
expeditiously file for a new hearing with the Board. Rather, his
amended complaint, as relevant here, alleged only that Harris
told O’Connor to file an appeal, and O’Connor failed to do so.
The e-mails simply do not show that Harris ever told O’Connor
to appeal the Board’s denial prior to terminating O’Connor’s
services on February 28.
Nor does the amended complaint clearly allege that Harris
told O’Connor to appeal. Rather, Harris simply alleges that he
“indicated to [O’Connor] that he was interested in pursuing an
appeal.” And in another place, he alleged that he “indicated
that he was inclined to appeal.”
And Harris cannot show that any negligence by O’Connor
proximately caused harm to Harris. Section 22-91 of the City
of Omaha’s Police and Fire Retirement System pension ordi-
nances provides in part that the Board “is hereby authorized
and empowered and may open for rehearing any case where
a former city employee has been denied an application for
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a disability pension, which application had been previously
heard . . . upon presentation of new evidence.”8
The record establishes that Harris and O’Connor were antic-
ipating new evidence to present to the Board, including “Al’s
report,” as well as possibly “a report from either the [physical
therapist] who gave you the FCE or Dr. [Alicia] Feldman.” “Al’s
report” apparently was the key, as O’Connor writes: “Really
can’t do anything until we have Al’s report.” That report appar-
ently refers to a “Loss of Earnings Capacity Evaluation” com-
pleted by Alfred Marchisio, Jr., dated March 11, 2011. Harris
terminated O’Connor’s employment on February 28.
Under § 22-91, Harris could have returned to the Board
with that report and asked the Board to rehear his applica-
tion. As such, any negligence on the part of O’Connor could
not have been the proximate cause of the injury suffered by
Harris because the record establishes that Harris suffered no
injury, as Harris could have asked the Board for rehearing
at any time he had new evidence to present. And the record
in this case shows that Harris and O’Connor were, in fact,
anticipating new evidence. Accordingly, summary judgment
was appropriate.
The district court did not err in granting O’Connor’s motion
for summary judgment. Harris’ first assignment of error is
without merit.
2. Expert Testimony
In his second assignment of error, Harris assigns that the
district court erred in finding that the issue of whether an attor-
ney commits malpractice is a question of law and in refusing to
allow expert testimony on the issue.
The expert testimony in question opined that O’Connor
had failed to preserve for appellate review the record of
Harris’ petition before the Board. Whether an appellate record
is appropriately preserved is a question of law. And expert
testimony is generally not admissible concerning a question
of law.9
8
Omaha Mun. Code, ch. 22, art. III, § 22-91 (2001).
9
Sports Courts of Omaha v. Brower, 248 Neb. 272, 534 N.W.2d 317 (1995).
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Even if expert testimony was admissible, Harris’ expert
was wrong—the law does allow municipal ordinances to be
requested in the praecipe rather than introduced as exhibits at
the hearing.10
The district court did not err in not admitting the evidence
of Harris’ expert. Harris’ second assignment of error is with-
out merit.
VI. CONCLUSION
The decision of the district court is affirmed.
Affirmed.
10
See State v. Bush, supra note 7.