Dondlinger v. Nelson , 305 Neb. 894 ( 2020 )


Menu:
  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    06/19/2020 09:08 AM CDT
    - 894 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    DONDLINGER v. NELSON
    Cite as 
    305 Neb. 894
    Terry L. Dondlinger and Valerie Dondlinger,
    appellants, v. Jayson D. Nelson,
    an individual, et al., appellees.
    ___ N.W.2d ___
    Filed May 22, 2020.     No. S-19-428.
    1. Summary Judgment. Summary judgment is proper when the plead-
    ings and the evidence admitted at the hearing 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.
    2. Summary Judgment: Appeal and Error. An appellate court will affirm
    a lower court’s grant of summary judgment if the pleadings and admit-
    ted evidence 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.
    3. Summary Judgment. The primary purpose of the summary judgment
    procedure is to pierce the allegations in the pleadings and show conclu-
    sively that the controlling facts are other than as pled.
    4. Summary Judgment: Proof. The party moving for summary judgment
    must make a prima facie case by producing enough evidence to show
    that the movant is entitled to judgment if the evidence were uncontro-
    verted at trial.
    5. ____: ____. If the party moving for summary judgment makes a prima
    facie case, the burden shifts to the nonmovant to produce evidence
    showing the existence of a material issue of fact that prevents judgment
    as a matter of law.
    6. Limitations of Actions: Malpractice: Attorney and Client. If a claim
    for professional negligence in the nature of legal malpractice is not to
    be considered time barred, the plaintiff must either file within 2 years
    of an alleged act or omission or show that its action falls within the
    discovery exception of Neb. Rev. Stat. § 25-222 (Reissue 2016) or has
    been tolled pursuant to the continuous representation rule.
    - 895 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    DONDLINGER v. NELSON
    Cite as 
    305 Neb. 894
    7. Limitations of Actions: Words and Phrases. “Discovery,” in the
    context of statutes of limitations, refers to the fact that one knows of
    the existence of an injury and not that one has a legal right to seek
    redress.
    8. Limitations of Actions: Malpractice. Under Neb. Rev. Stat. § 25-222
    (Reissue 2016), it is not necessary that a plaintiff have knowledge of
    the exact nature or source of the problem, but only that a problem
    existed.
    9. Limitations of Actions: Malpractice: Words and Phrases. In a profes-
    sional negligence case, “discovery of the act or omission” occurs when
    the party knows of facts sufficient to put a person of ordinary intel-
    ligence and prudence on inquiry which, if pursued, would lead to the
    knowledge of facts constituting the basis of the cause of action.
    10. Malpractice: Attorney and Client: Damages: Words and Phrases. In
    a cause of action for professional negligence, legal injury is the wrong-
    ful act or omission which causes the loss. Legal injury is not damage;
    damage is the loss resulting from the misconduct.
    11. Limitations of Actions: Malpractice. The statute of limitations for a
    claim of professional negligence is tolled if there is a continuity of the
    relationship and services for the same or related subject matter after the
    alleged professional negligence.
    12. Limitations of Actions: Malpractice: Attorney and Client. In a claim
    of professional negligence, if a client discovers the act or omission
    prior to the termination of an attorney’s representation, then the con-
    tinuous representation exception does not apply to toll the statute of
    limitations.
    13. Summary Judgment: Affidavits. Where the movant for summary judg-
    ment submits an affidavit as to a material fact, and that fact is not con-
    tradicted by the adverse party, the court will determine that there is no
    issue as to that fact.
    14. Summary Judgment. Conclusions based on guess, speculation, conjec-
    ture, or a choice of possibilities do not create material issues of fact for
    purposes of summary judgment.
    Appeal from the District Court for Douglas County: Horacio
    J. Wheelock, Judge. Affirmed.
    James R. Welsh, of Welsh & Welsh, P.C., L.L.O., for
    appellants.
    Mark C. Laughlin and Jacqueline M. DeLuca, of Fraser
    Stryker, P.C., L.L.O., for appellees.
    - 896 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    DONDLINGER v. NELSON
    Cite as 
    305 Neb. 894
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Per Curiam.
    NATURE OF CASE
    This appeal involves a legal malpractice action brought by
    Terry L. Dondlinger and Valerie Dondlinger which the district
    court for Douglas County dismissed as time barred. The district
    court concluded that the continuing representation exception
    to the 2-year statute of limitations in Neb. Rev. Stat. § 25-222
    (Reissue 2016) did not apply. Instead, because the Dondlingers
    discovered the allegedly negligent act prior to the termination
    of the attorney-client relationship, the 1-year discovery rule
    in § 25-222 did apply and the Dondlingers’ action was time
    barred. The district court granted the defendants’ motion for
    summary judgment and dismissed the Dondlingers’ action with
    prejudice. The Dondlingers appeal.
    STATEMENT OF FACTS
    On May 18, 2018, the Dondlingers filed a complaint against
    defendants Jayson D. Nelson and Hunegs, LeNeave & Kvas,
    P.A. On June 12, the Dondlingers amended their complaint
    and added Katie D. Figgins as a defendant. The complaints
    against the three defendants (collectively the appellees) set
    forth claims of professional negligence relating to the appel-
    lees’ legal representation of the Dondlingers in a personal
    injury action for an accident that occurred on April 6, 2012.
    This personal injury action forms the underlying case in the
    current legal malpractice appeal.
    In their controlling complaint, the Dondlingers allege that
    in the underlying case, the appellees “negligently failed to
    properly file a Tort Claim pursuant to the Nebraska Political
    Subdivision Claims Act, Neb. Rev. Stat. § 13-901 et seq.” on
    Nickerson Township, Dodge County, Nebraska. In the underly-
    ing case, Nickerson Township was granted summary judgment
    and dismissed from the case. The appellees, representing the
    Dondlingers, filed a notice of appeal to the Nebraska Court
    - 897 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    DONDLINGER v. NELSON
    Cite as 
    305 Neb. 894
    of Appeals in November 2015 in case No. A-15-1108. During
    the pendency of case No. A-15-1108, the appellees filed a
    response to an order to show cause and a motion for extension
    of time to file a brief on behalf of the Dondlingers. The appeal
    was ultimately dismissed in May 2016 for their failure to file
    a brief.
    In Nelson’s affidavit filed in the current legal malpractice
    case, he explained how he informed the Dondlingers of the
    alleged negligence in the underlying case and the outcome in
    the Court of Appeals. The affidavit states:
    5. During the course of the representation of Terry
    Dondlinger and Valerie Dondlinger, I initiated a telephone
    conference between myself and Terry Dondlinger and
    Valerie Dondlinger. In this telephone conference, I person-
    ally informed [them] regarding the District Court’s find-
    ing that we did not properly serve Nickerson Township.
    This is the alleged negligence that is set forth in [their]
    Complaint in the above-captioned matter. We discussed at
    length the facts and circumstances which led to the dis-
    missal and the appeal.
    6. I advised Terry and Valerie Dondlinger that our
    representation of them would end, and that we would be
    closing their file, after advising them of the alleged negli-
    gence at issue in this Complaint. This fact is reflected in
    [the Dondlingers’] Statement of Undisputed Facts.
    The Dondlingers’ answers to the appellees’ interrogatories
    in the current legal malpractice case state that “[w]ithin thirty
    (30) days after June 23, 2016,” (1) the Dondlingers discovered
    the fact that the appellees had failed to properly file their tort
    claim in the underlying case and (2) the Dondlingers’ attorney-
    client relationship with the appellees ended. The appellees do
    not dispute these assertions.
    The Dondlingers filed the present action on May 18, 2018,
    which, given discovery within 30 days after June 23, 2016,
    was after the 1-year discovery rule contained in § 25-222 but
    within the general 2-year statute of limitations for professional
    - 898 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    DONDLINGER v. NELSON
    Cite as 
    305 Neb. 894
    negligence set forth in § 25-222. The Dondlingers argued to
    the district court and again on appeal that their claim did not
    accrue until the continuing representation by the appellees
    ended, that the 2-year limitations period started on the termina-
    tion of the relationship, and that their action was timely. The
    appellees filed a motion for summary judgment in the district
    court on the basis of the statute of limitations, § 25-222.
    On January 2, 2019, the district court granted the appellees’
    motion for summary judgment and dismissed the Dondlingers’
    action with prejudice. The Dondlingers filed a motion to alter
    or amend the judgment. The district court, on its own motion,
    vacated its prior order and requested that the parties provide
    supplemental briefing on the “continuous representation doc-
    trine.” On April 30, the district court denied the motion to alter
    or amend and entered an order granting summary judgment
    in favor of the appellees. In reaching its decision, the district
    court concluded that the continuous representation doctrine
    did not toll the accrual of the action, because the Dondlingers
    had discovered the alleged negligence during the course of
    the attorney-client relationship. The court determined that the
    action was time barred because the Dondlingers filed their
    claim for professional negligence more than 1 year after dis-
    covery of the alleged negligent act.
    The Dondlingers appeal.
    ASSIGNMENT OF ERROR
    The Dondlingers claim that the district court erred when
    it dismissed their amended complaint as untimely. They con-
    tend that the 2-year statute of limitations was tolled because
    the appellees continued to represent them during the appeals
    process.
    STANDARDS OF REVIEW
    [1,2] Summary judgment is proper when the pleadings and
    the evidence admitted at the hearing 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
    - 899 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    DONDLINGER v. NELSON
    Cite as 
    305 Neb. 894
    moving party is entitled to judgment as a matter of law. Meyer
    Natural Foods v. Greater Omaha Packing Co., 
    302 Neb. 509
    , 
    925 N.W.2d 39
    (2019). An appellate court will affirm a
    lower court’s grant of summary judgment if the pleadings and
    admitted evidence 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.
    Id. ANALYSIS Reduced
    to its essence, the Dondlingers argue that the
    continuous relationship doctrine tolled the statute of limita-
    tions, thereby giving them 2 years to file their legal malprac-
    tice case after learning of their attorneys’ alleged negligence.
    The Dondlingers claim that the district court erred when it
    ruled that because the continuous relationship did not apply,
    the Dondlingers’ complaint was subject to the 1-year dis-
    covery rule and was time barred. We find no merit to the
    Dondlingers’ argument and therefore affirm the dismissal of
    the Dondlingers’ action.
    [3-5] In this case, the appellees successfully moved for
    summary judgment. The primary purpose of the summary
    judgment procedure is to pierce the allegations in the plead-
    ings and show conclusively that the controlling facts are other
    than as pled. Williamson v. Bellevue Med. Ctr., 
    304 Neb. 312
    ,
    
    934 N.W.2d 186
    (2019). Neb. Rev. Stat. § 25-1332(1) (Cum.
    Supp. 2018) provides in part that a motion for summary
    judgment shall be granted “if the pleadings and the evidence
    admitted at the hearing show that there is no genuine dispute
    as to any material fact and that the moving party is entitled
    to a judgment as a matter of law.” The party moving for sum-
    mary judgment must make a prima facie case by producing
    enough evidence to show that the movant is entitled to judg-
    ment if the evidence were uncontroverted at trial. Williamson
    v. Bellevue Med. 
    Ctr., supra
    . If the party moving for summary
    judgment makes a prima facie case, the burden shifts to the
    nonmovant to produce evidence showing the existence of a
    - 900 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    DONDLINGER v. NELSON
    Cite as 
    305 Neb. 894
    material issue of fact that prevents judgment as a matter of
    law.
    Id. The Dondlingers’
    legal malpractice action is a claim of pro-
    fessional negligence, and we turn to § 25-222 to determine the
    timeliness of the cause of action. Section 25-222 provides:
    Any action to recover damages based on alleged pro-
    fessional 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 professional
    services providing the basis for such action; Provided,
    if the cause of action is not discovered and could not be
    reasonably discovered within such two-year period, then
    the action may be commenced within one year from the
    date of such discovery or from the date of discovery of
    facts which would reasonably lead to such discovery,
    whichever is earlier; and provided further, that in no event
    may any action be commenced to recover damages for
    professional negligence or breach of warranty in render-
    ing or failure to render professional services more than
    ten years after the date of rendering or failure to render
    such professional service which provides the basis for the
    cause of action.
    [6] If a claim for professional negligence in the nature
    of legal malpractice is not to be considered time barred, the
    plaintiff must either file within 2 years of an alleged act or
    omission or show that its action falls within the discovery
    exception of § 25-222 or has been tolled pursuant to the con-
    tinuous representation rule. See Guinn v. Murray, 
    286 Neb. 584
    , 
    837 N.W.2d 805
    (2013). We discussed the two exceptions
    to the 2-year provision in § 25-222 in recent case law. See
    
    Guinn, supra
    .
    [7-10] With regard to the discovery rule, in Guinn, we stated:
    The discovery rule as it pertains to professional neg-
    ligence claims is set forth in §25-222, quoted above. By
    the terms of the statute, the discovery rule applies only
    - 901 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    DONDLINGER v. NELSON
    Cite as 
    305 Neb. 894
    when the cause of action is not discovered and could not
    reasonably have been discovered within the 2-year limita-
    tions period. If the discovery rule applies, then the limi­
    tations period is 1 year from the time the cause of action
    is or could have been discovered. “Discovery,” in the con-
    text of statutes of limitations, refers to the fact that one
    knows of the existence of an injury and not that one has a
    legal right to seek redress. Lindsay Mfg. Co. v. Universal
    Surety Co., 
    246 Neb. 495
    , 
    519 N.W.2d 530
    (1994). It is
    not necessary that a plaintiff have knowledge of the exact
    nature or source of the problem, but only that a problem
    existed.
    Id. In a
    professional negligence case, “discovery
    of the act or omission” occurs when the party knows of
    facts sufficient to put a person of ordinary intelligence
    and prudence on inquiry which, if pursued, would lead to
    the knowledge of facts constituting the basis of the cause
    of action. Gering - Ft. Laramie Irr. Dist. v. Baker, 
    259 Neb. 840
    , 
    612 N.W.2d 897
    (2000). In a cause of action
    for professional negligence, legal injury is the wrongful
    act or omission which causes the loss.
    Id. Legal injury
    is
    not damage; damage is the loss resulting from the mis-
    conduct. See
    id. 286 Neb.
    at 
    597-98, 837 N.W.2d at 817
    .
    [11] With regard to the continuous relationship rule, in
    Guinn, we stated:
    [T]he statute of limitations for a claim of professional
    negligence is tolled if there is a continuity of the rela-
    tionship and services for the same or related subject mat-
    ter after the alleged professional negligence. Bellino v.
    McGrath North, 
    274 Neb. 130
    , 
    738 N.W.2d 434
    (2007).
    However, we have limited the reach of the continuous
    representation rule by stating that continuity does not
    mean mere continuity of the general professional rela-
    tionship and that the continuous representation rule is
    inapplicable when the claimant discovers the alleged
    negligence prior to the termination of the professional
    - 902 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    DONDLINGER v. NELSON
    Cite as 
    305 Neb. 894
    relationship. See Reinke Mfg. Co. v. Hayes, 
    256 Neb. 442
    ,
    
    590 N.W.2d 380
    (1999).
    286 Neb. at 598
    , 837 N.W.2d at 817.
    The Dondlingers contend that they learned of the appellees’
    alleged negligence within 30 days after June 23, 2016. The
    complaint was filed on May 18, 2018. Given that the 1-year
    discovery rule would not save their action, the Dondlingers
    rely instead on the continuous representation rule to contend
    their action was timely filed because the legal malpractice
    action did not accrue until the conclusion of their first appeal
    and the termination of their professional relationship with
    the appellees.
    [12] As noted, the controlling principle of law since at
    least Economy Housing Co. v. Rosenberg, 
    239 Neb. 267
    , 
    475 N.W.2d 899
    (1991), is that if the client discovers the act or
    omission prior to the termination of the attorney’s repre-
    sentation, then the continuous representation exception does
    not apply. In Economy Housing Co., we explained that “[t]o
    hold otherwise would merely encourage clients to sit on their
    hands, with full knowledge of negligence on the part of the
    professional who is serving them, knowing that the clock
    would not start to run on their claim until they actually fired
    the 
    practitioner.” 239 Neb. at 269
    , 475 N.W.2d at 900. To
    determine whether the continuous representation exception
    applies, the record would need to demonstrate when the
    Dondlingers learned of the act or omission and, in particular,
    whether that occurred prior to or after the end of the appel-
    lees’ representation.
    In an effort to show that the Dondlingers learned of the error
    prior to the termination of their representation, the appellees
    offered Nelson’s affidavit, which, as previously quoted, states
    in paragraphs 5 and 6 as follows:
    5. During the course of the representation of Terry
    Dondlinger and Valerie Dondlinger, I initiated a tele-
    phone conference between myself and Terry Dondlinger
    and Valerie Dondlinger. In this telephone conference,
    - 903 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    DONDLINGER v. NELSON
    Cite as 
    305 Neb. 894
    I personally informed [them] regarding the District
    Court’s finding that we did not properly serve Nickerson
    Township. This is the alleged negligence that is set forth
    in [their] Complaint in the above-captioned matter. We
    discussed at length the facts and circumstances which led
    to the dismissal and the appeal.
    6. I advised Terry and Valerie Dondlinger that our
    representation of them would end, and that we would be
    closing their file, after advising them of the alleged negli-
    gence at issue in this Complaint. This fact is reflected in
    [the Dondlingers’] Statement of Undisputed Facts.
    [13] If uncontroverted, this evidence satisfied the appel-
    lees’ objective to establish that the Dondlingers learned of the
    error during the attorney-client relationship, thus triggering
    the 1-year discovery period in § 25-222 and rendering the
    complaint filed on May 18, 2018, untimely. At this point, the
    burden with respect to this issue shifted to the Dondlingers to
    overcome the evidence that their complaint was time barred.
    In this regard, we have noted that where the movant for sum-
    mary judgment submits an affidavit as to a material fact, and
    that fact is not contradicted by the adverse party, the court will
    determine that there is no issue as to that fact. Boyle v. Welsh,
    
    256 Neb. 118
    , 
    589 N.W.2d 118
    (1999).
    A review of the record shows that by virtue of the evidence,
    including paragraph 9 of the amended complaint and answer
    thereto, it is undisputed that one attorney and the Dondlingers
    participated in a communication during which the attorney
    advised the Dondlingers that no petition for further review to
    the Nebraska Supreme Court would be filed after the Court of
    Appeals dismissed the Dondlingers’ appeal. The time for fil-
    ing a petition for further review is 30 days. Neb. Ct. R. App.
    P. § 2-102(F)(1) (rev. 2015). We logically understand that
    this communication occurred within the period available for
    filing such a petition for further review, i.e., within 30 days
    after the dismissal by the Court of Appeals. According to the
    Nelson affidavit, the conversation included an explanation of
    - 904 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    DONDLINGER v. NELSON
    Cite as 
    305 Neb. 894
    the underlying act or omission and an indication that the attor-
    neys would end the relationship.
    The Dondlingers’ answers to interrogatories Nos. 6 and 7
    stated as follows:
    INTERROGATORY NO. 6: Please state the date that
    your attorney-client relationship with Defendants ended.
    ANSWER: See Complaint.
    SUPPLEMENTAL ANSWER: Within thirty (30)
    days after June 23, 2016.
    INTERROGATORY NO. 7: Please state the date
    that you discovered the fact that Defendants “negli-
    gently failed to properly file a Tort Claim pursuant to
    the Nebraska Political Subdivision Claims Act, Neb. Rev.
    Stat. § 13-901 et seq.”, as alleged in paragraph six of your
    Amended Complaint in this action.
    ANSWER: See Response to Request for Admissions.
    SUPPLEMENTAL ANSWER: Within thirty (30)
    days after June 23, 2016.
    No party asserts a date upon which the attorney-client
    relationship ended, but given the exchange regarding filing a
    petition for further review, and inferring a date favorable to
    the Dondlingers, the termination happened during the 30-day
    period available for filing a petition for further review, follow-
    ing the Court of Appeals’ dismissal in May 2016. Based on
    the Dondlingers’ responses to interrogatories, it is possible that
    the Dondlingers learned of the error on any day either before
    or after the termination of the relationship, but in any event,
    occurring during the 30 days “after June 23, 2016.”
    Having reviewed the record, it is clear that the Dondlingers
    have failed to specifically assert that they did not learn of
    the error until after the termination of the relationship, as
    they needed to demonstrate to take advantage of the con-
    tinuous representation rule. Because the appellees carried their
    evidentiary burden and showed that the Dondlingers were
    advised of the error prior to the termination of the relation-
    ship, it was incumbent on the Dondlingers to controvert this
    - 905 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    DONDLINGER v. NELSON
    Cite as 
    305 Neb. 894
    assertion; otherwise, their complaint was untimely filed. The
    Dondlingers have not provided evidence which controverts
    that of the appellees.
    [14] We recognize that the Dondlingers’ evidence identifies
    a 30-day period during which they learned of the appellees’
    act or omission, and we are aware that at the summary judg-
    ment stage, inferences should be in favor of the nonmoving
    party. However, although we must infer facts favorable to the
    Dondlingers, we are not permitted to speculate. Conclusions
    based on guess, speculation, conjecture, or a choice of pos-
    sibilities do not create material issues of fact for purposes of
    summary judgment. Pitts v. Genie Indus., 
    302 Neb. 88
    , 
    921 N.W.2d 597
    (2019). In this case, there is no categorical infer-
    ence that the Dondlingers learned of the appellees’ negligent
    action or omission after the end of the relationship. Although
    there is a possibility, the Dondlingers did not assert they were
    unaware of the error until after the termination of the relation-
    ship. Given all the evidence and giving the Dondlingers the
    favorable inferences, their evidence amounts to the following:
    During the period for filing a petition for further review, we
    learned of the error on a date which might have been after
    the appellees terminated the relationship. The appellees’ evi-
    dence that they communicated the error prior to the end of the
    ­attorney-client relationship stands uncontroverted.
    CONCLUSION
    As explained above, the district court did not err when
    it ruled that the continuing representation exception did not
    apply, and that therefore, the Dondlingers’ action was time
    barred, and when it granted summary judgment in favor of the
    appellees. The district court’s dismissal of the Dondlingers’
    action is affirmed.
    Affirmed.
    Miller-Lerman, J., concurring.
    Given our jurisprudence in the legal malpractice area
    regarding the continuous representation doctrine, I believe the
    - 906 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    DONDLINGER v. NELSON
    Cite as 
    305 Neb. 894
    opinion is correct. We have stated that the continuous repre-
    sentation rule does not apply when the claimant discovers the
    alleged professional negligence prior to the termination of the
    professional relationship. Guinn v. Murray, 
    286 Neb. 584
    , 
    837 N.W.2d 805
    (2013); Economy Housing Co. v. Rosenberg, 
    239 Neb. 267
    , 
    475 N.W.2d 899
    (1991). See Bonness v. Armitage,
    ante p. 747, ___ N.W.2d ___ (2020). However, as one trea-
    tise noted and this case illustrates, “[i]f applied rigidly, this
    approach can produce randomly harsh results.” 3 Ronald E.
    Mallen, Legal Malpractice § 23:45, n.23 at 562 (2020). In
    the present case, the appellees asserted that they informed the
    Dondlingers of the alleged malpractice prior to the termination
    of the relationship and the Dondlingers asserted that it was
    possible that they discovered the appellees’ alleged malpractice
    either before, simultaneously with, or after the termination
    of representation.
    As I understand it, Nebraska is one of few jurisdictions that
    resolves the applicability of the continuous representation doc-
    trine by focusing on whether the client discovered the alleged
    legal malpractice before or after the end of the representation.
    See
    id. To apply
    the doctrine in a reasonable manner, I believe,
    as a substantial majority of other states have recognized, the
    question is more nuanced. See 3 Mallen, supra, § 23:45 (col-
    lecting cases).
    In Lincoln Grain v. Coopers & Lybrand, 
    215 Neb. 289
    , 
    338 N.W.2d 594
    (1983), we explained the continuous treatment
    doctrine as it applied to medical malpractice and how it might
    apply to accountants and, by inference, other professional serv­
    ices. When we adopted the continuous treatment doctrine in
    1941, we acknowledged the occurrence rule but nevertheless
    sought to avoid premature litigation when we stated:
    [I]t is just to the physician and surgeon that he [or she]
    may not be harassed by premature litigation instituted in
    order to save the right of the patient in the event there
    should be substantial malpractice. The physician and sur-
    geon must have all reasonable time and opportunity to
    - 907 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    DONDLINGER v. NELSON
    Cite as 
    305 Neb. 894
    correct the evils which made the observation and treat-
    ment necessary and to correct the ordinary and usual
    mistakes incident to even skilled surgery. The [continuing
    treatment doctrine] is conducive to that mutual confidence
    which is highly essential in the relation between surgeon
    and patient. The treatment and employment should be
    considered as a whole, and if there occurred therein mal-
    practice, the statute of limitations should begin to run
    when the treatment ceased.
    Williams v. Elias, 
    140 Neb. 656
    , 662-63, 
    1 N.W.2d 121
    , 124
    (1941).
    Additional concerns, including avoiding disruption of the
    relationship and the potential for concealment, were articulated
    in Casey v. Levine, 
    261 Neb. 1
    , 
    621 N.W.2d 482
    (2001), and
    may be relevant in the present case. In Casey, we stated:
    It is apparent that allowing a physician an opportunity to
    correct any malpractice and not disrupting the ­physician-
    patient relationship are the primary considerations under-
    lying the continuing treatment doctrine in Nebraska.
    Id. See, also,
    McDermott v. Torre, 
    56 N.Y.2d 399
    , 408, 
    437 N.E.2d 1108
    , 1112, 
    452 N.Y.S.2d 351
    , 355 (1982) (“the
    most efficacious medical care will be obtained when the
    attending physician remains on a case from onset to cure
    [and] implicit in the policy is the recognition that the
    doctor not only is in a position to identify and correct his
    or her malpractice, but is best placed to do so”). It is the
    trust relationship that may make discovery of a claim dif-
    ficult. See Miller v. United States, 
    458 F. Supp. 363
    , 366
    (D. Puerto Rico 1978) (“[t]he rationale for the [continu-
    ing treatment doctrine] is the protection of the confiden-
    tial physician-patient relationship . . . as well as the fear
    that the treating physician, ‘knowing of his actionable
    mistake, might be able to conceal it from his patient or
    continuously to lull the patient into failing to institute suit
    within the ordinarily permissible time 
    period’”). 261 Neb. at 8
    , 621 N.W.2d at 488.
    - 908 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    DONDLINGER v. NELSON
    Cite as 
    305 Neb. 894
    The foregoing rationales are in service to permit the profes-
    sional an opportunity to be forthright and remedy the error.
    In the legal malpractice area, the continuous representation
    doctrine tolls the statute of limitations only for ongoing and
    continuous services by the attorney for the same or related
    subject matter after the professional negligence. See Bellino
    v. McGrath North, 
    274 Neb. 130
    , 
    738 N.W.2d 434
    (2007).
    Continuity does not mean the mere continuity of the general
    professional relationship. Behrens v. Blunk, 
    284 Neb. 454
    , 
    822 N.W.2d 344
    (2012). In this regard and for completeness, we
    are aware of the “exhaustion of appeals” approach adopted by
    some states, e.g., Hughes v. Mahaney & Higgins, 
    821 S.W.2d 154
    (Tex. 1991). But see Story v. Bunstine, 
    538 S.W.3d 455
    (Tenn. 2017) (rejecting inter alia the appeal-tolling doctrine).
    Under this approach, a statute of limitations does not com-
    mence until all appeals from the underlying case in which an
    error allegedly occurred are exhausted. In Nebraska, we have
    declined to adopt such a broad rule, see Suzuki v. Holthaus, 
    221 Neb. 72
    , 
    375 N.W.2d 126
    (1985), and it is not necessary to do
    so here.
    Our focus on the timing of an innocent client’s knowledge
    and whether his or her revelation falls either before or after the
    end of the representation confuses the continuous representa-
    tion doctrine with the discovery rule and compromises the
    virtues of the professional attorney-client relationship which
    the continuous representation rule was designed to preserve.
    So, as I see it, we should consider abandoning the rigid “prior”
    test and return to implementing the original purposes of the
    continuous representation doctrine to enable an attorney the
    opportunity to resolve the problem or minimize the extent of
    the injury. Morrison v. Watkins, 
    20 Kan. App. 2d 411
    , 
    889 P.2d 140
    (1995) (noting that Nebraska’s “prior” test does not allow
    client to work with attorney to correct error). To be thorough,
    if we persist in rigid application of the “prior” test, we should
    consider abandoning the doctrine and simply stick to the stat-
    ute, Neb. Rev. Stat. § 25-222 (Reissue 2016), which provides
    - 909 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    DONDLINGER v. NELSON
    Cite as 
    305 Neb. 894
    the discovery rule exception as the only exception to the statute
    of limitations.
    Here, the appellees continued to represent the Dondlingers
    on an appeal from their underlying case in an apparent attempt
    to reverse the consequences of the appellees’ alleged act of
    malpractice. If we do not insist on applying the “prior” test,
    the 2-year statute of limitations for professional negligence
    would have accrued on the singular occasion when the appel-
    lees informed the Dondlingers of their error, their appellate
    case was concluded, and the appellees would be closing the
    file. Without application of the “prior” test, the Dondlingers’
    legal malpractice case would not be time barred. However, as
    noted at the outset of this concurrence, applying our current
    jurisprudence, I concur with the opinion, which concludes that
    the district court did not err when it determined that the case
    was time barred and dismissed the Dondlingers’ action.
    Papik, J., concurring.
    I agree with Justice Miller-Lerman that the continuous rep-
    resentation doctrine, as it currently exists in Nebraska, does
    not appear to further the rationale for having such a rule. I, like
    Justice Miller-Lerman, understand the primary purposes of a
    continuous representation rule to be to encourage attorneys to
    attempt to remedy or mitigate the damages caused by possible
    errors and to allow clients to rely on their attorneys’ efforts to
    do so without fear that the time to bring a legal malpractice
    claim is slipping away. See, e.g., Hiligh v. Sands, 
    389 F. Supp. 3d
    69 (D.D.C. 2019) (discussing policy justifications for con-
    tinuous representation rule). I too believe those purposes will
    rarely, if ever, be served given our rule that the continuous rep-
    resentation doctrine does not apply when the claimant discov-
    ers the alleged professional negligence prior to the termination
    of the professional relationship. See Guinn v. Murray, 
    286 Neb. 584
    , 
    837 N.W.2d 805
    (2013).
    Indeed, it would seem that the only scenario in which
    the continuous representation doctrine could be successfully
    - 910 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    DONDLINGER v. NELSON
    Cite as 
    305 Neb. 894
    invoked under our precedent would be one in which a former
    client learns of malpractice committed by his or her attor-
    ney only after the representation has concluded. But, in that
    scenario, there is no need for a continuous representation
    rule. The discovery exception in Neb. Rev. Stat. § 25-222
    (Reissue 2016) would extend the period in which the client
    could timely file his or her claim, and there would be no cause
    to worry about disrupting an already-concluded lawyer-client
    relationship.
    One way out of this thicket would be to, as Justice Miller-
    Lerman suggests, do away with our rule that the continuous
    representation rule does not apply when the client discovers the
    alleged negligence prior to the termination of the relationship.
    But while that course may lead to a more coherent continuous
    representation doctrine, I am concerned that the doctrine as a
    whole is not consistent with the text of the professional neg-
    ligence statute of limitations. Section 25-222 provides that in
    the case of professional negligence, the statute of limitations
    starts running upon the allegedly negligent act or omission of
    the professional. It provides one and only one exception to that
    rule—the discovery exception mentioned above.
    Ordinarily, when a statute specifically provides for excep-
    tions, we will not recognize others judicially. See In re
    Guardianship of Eliza W., 
    304 Neb. 995
    , 1006, 
    938 N.W.2d 307
    , 315 (2020) (“[o]ne of our rules of statutory interpreta-
    tion provides that when a statute specifically provides for
    exceptions, items not excluded are covered by the statute”).
    We appear not to have followed that principle when we recog-
    nized the continuous representation doctrine as an additional
    exception to § 25-222’s direction that the statute of limitations
    starts running upon the allegedly negligent act or omission of
    the professional.
    It is, I recognize, one thing to note that the justification for
    an established legal doctrine is questionable and quite another
    to overrule that doctrine. Stare decisis is entitled to great
    weight in our system. See Heckman v. Marchio, 
    296 Neb. 458
    ,
    - 911 -
    Nebraska Supreme Court Advance Sheets
    305 Nebraska Reports
    DONDLINGER v. NELSON
    Cite as 
    305 Neb. 894
    894 N.W.2d 296 
    (2017). But one of the main reasons a court
    might adhere to a legal doctrine notwithstanding its question-
    able underpinnings is that parties have relied on the existence
    of that precedent. See
    id. It is
    difficult for me to believe, how-
    ever, that anyone has or would organize their behavior based
    on our version of the continuous representation doctrine. As I
    have noted, the doctrine, as currently articulated, rarely applies
    and when it does, it is unnecessary.
    If, in fact, there is minimal reliance on the continuous rep-
    resentation doctrine and it cannot be squared with § 25-222, I
    suggest that any reconsideration of the doctrine should begin
    with the question of whether, absent legislative action, the doc-
    trine should be recognized at all.
    Stacy, J., joins in this concurrence.