Kozal v. Snyder

312 Neb. 208

978 N.W.2d 174

Stuart KOZAL, doing business as Jumping Eagle Inn et al., appellants,

v.Andrew W. SNYDER and Chaloupka, Holyoke, Snyder, Chaloupka & Longoria P.C. L.L.O., appellees.

No. S-21-377.

Supreme Court of Nebraska.

Filed August 12, 2022

Jason M. Bruno, Diana J. Vogt, Robert S. Sherrets, and Thomas G. Schumacher, Omaha, of Sherrets, Bruno & Vogt, L.L.C., for appellants.

Steven W. Olsen, Scottsbluff, and Amy N. Leininger, of Simmons Olsen Law Firm, P.C., L.L.O., for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ.

Heavican, C.J.

I. INTRODUCTION

Appellants, various liquor stores in Whiteclay, Nebraska, sought to renew multiple liquor licenses in 2017. The cause was eventually appealed to this court, where we determined that because citizen objectors were not named as parties to the appeal from the decision of the Nebraska Liquor Control Commission (NLCC), we did not have jurisdiction to hear the appeal.

Appellants pursued a legal malpractice action against their counsel, appellees. The district court granted appellees’ motion for summary judgment, stating that appellees did not breach their duty of care. Appellants appealed the district court's decision. This court granted appellants’ petition to bypass the Nebraska Court of Appeals and moved this appeal to our docket. We affirm.

II. FACTUAL BACKGROUND

Stuart Kozal, doing business as Jumping Eagle Inn; Arrowhead Inn, Inc., doing business as Arrowhead Inn; Jason Schwarting; Clay Brehmer; Daniel Brehmer, doing business as State Line Liquor; Douglas Sanford, Steve Sanford, and Sanford Holdings, L.L.C., doing business as D & S Pioneer Service (collectively appellants), operated convenience and retail stores in Whiteclay. Appellants retained attorney Andrew Snyder (individually Snyder) and the law firm of Chaloupka, Holyoke, Snyder, Chaloupka & Longoria P.C. L.L.O. (collectively appellees), to secure renewal of their liquor licenses for the 2017-18 year.

For the first time in 2017, the NLCC required appellants to submit a long-form renewal application to keep their liquor licenses, rather than allowing the shorthand automatic online renewal that had been previously granted as a matter of course. Appellants filed such applications, and several citizen objectors opposed them.

When the NLCC held a hearing on the renewal applications in 2017, the citizen objectors acted, and were treated, as parties in the proceedings before the NLCC. Appellees and legal counsel for the citizen objectors were both copied on the NLCC's order denying the liquor license applications.

On April 25, 2017, appellees appealed the NLCC's decision on behalf of appellants in the Lancaster County District Court. Appellees did not name any of the citizen objectors as parties to the appellate proceedings. The Lancaster County District Court thereafter vacated the NLCC's decision, concluding that the NLCC's decision was arbitrary and unreasonable, exceeded NLCC's statutory authority, and was contrary to Nebraska statutes and prior rulings of the Nebraska Supreme Court. The district court ordered the NLCC to honor the renewal of appellants’ liquor licenses.

The NLCC and the citizen objectors appealed the district court's decision. In Kozal v. Nebraska Liquor Control Comm. ( Kozal I )¹ this court vacated the district court's decision and dismissed the challenge to the NLCC decision. In Kozal I , we determined that this court lacked jurisdiction to hear the appeal because the citizen objectors were not named as parties to the appellate proceedings as required under Nebraska law.

The day our opinion in Kozal I was released, Snyder sent an email to appellants informing them of the result, citing his own "error in not including ‘all parties’ in the appeal," stating that "[o]bviously, this is my fault," and including contact information for his malpractice carrier. On April 5, 2019, appellants filed a legal malpractice action against appellees in the Sheridan County District Court.

On November 14, 2019, appellants filed a motion for partial summary judgment against appellees, contending that no expert testimony was necessary because appellees’ malpractice was obvious because Snyder admitted his error in writing. On January 27, 2020, the district court denied appellants’ first motion for summary judgment.

On November 12, 2020, appellees filed a motion for summary judgment, contending that they did not breach any duty of care to appellants. On January 26, 2021, appellants filed a motion for partial summary judgment, arguing that appellees breached their duty of care by failing to name the citizen objectors as parties to the appellate proceedings and by failing to advise appellants of the consequences of failing to name the citizen objectors if appellees thought the issue was unsettled.

In April 2021, the district court issued an order denying appellants’ motion for partial summary judgment and granting appellees’ motion for summary judgment. The district court found that it was a question of law whether appellees breached a duty of care in an area of unsettled law and that appellees ultimately did not breach this duty.

Appellants appealed from the district court's order and petitioned this court to bypass the Court of Appeals. We granted appellants’ petition to bypass, and this case was thereafter moved to our docket.

III. ASSIGNMENTS OF ERROR

On appeal, appellants assign that the district court erred in (1) concluding that, as a matter of law, appellees did not breach the applicable standard of care; (2) granting summary judgment to appellees; and (3) denying appellants’ motion for partial summary judgment.

IV. STANDARD OF REVIEW

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 the facts and that the moving party is entitled to judgment as a matter of law.²

In reviewing the grant of a motion for 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.³

When reviewing questions of law, an appellate court resolves the questions independently of the lower court's conclusion.⁴

V. ANALYSIS

1. STANDARD OF CARE

To prevail on a claim for legal malpractice, a plaintiff must prove (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.⁵ The parties do not dispute that Snyder was a licensed attorney practicing in the State of Nebraska, nor do they dispute that Snyder was hired by appellants to assist in the renewal of their liquor licenses for the 2017-18 year. Thus, we focus on whether Snyder neglected a reasonable duty.

In a legal malpractice action, the required standard of conduct or general rule regarding an attorney's reasonable duty to his or her client is that the attorney, by accepting employment to give legal advice or to render other legal services, impliedly agrees to exercise such skill, diligence, and knowledge as that commonly possessed by attorneys acting in similar circumstances.⁶

(a) Questions of Law and Questions of Fact

Appellants assign that the district court erred in granting appellees’ motion for summary judgment and finding that appellees did not breach the applicable standard of care as a matter of law. Appellants further assert that the district court erroneously engaged in an analysis of both questions of law and questions of fact, ultimately drawing conclusions of fact that it was not authorized to make.

In Guinn v. Murray , this court previously clarified what issues in a legal malpractice action are questions of law for the court and what issues are questions of fact for the fact finder.⁷ To the extent there is an issue as to what the law was and whether the attorney correctly advised on such law is a question of law for the court.⁸ If the court decides that an attorney's conduct or advice did not comport with the substance of the law at the time it was given, then whether the attorney's specific conduct in that particular case fell below what the attorney's specific conduct should have been is a question of fact.⁹ Said differently, it is a question of fact whether the attorney's conduct, under the particular circumstances of the case, was such that the attorney exercised the same skill, diligence, and knowledge as that commonly possessed by attorneys acting in similar circumstances.¹⁰

Accordingly, whether Snyder's conduct or advice was in conformity with the law at the time it was given is a legal question for the court. If Snyder's conduct or advice was not in conformity with the law, then the question of whether such conduct or advice was negligent is a fact issue for the jury. If Snyder's conduct or advice was not erroneous as a matter of law, further analysis regarding the factual determination of whether Snyder's conduct was negligent is unnecessary.

(b) Unsettled Area of Law

In order to determine whether an attorney's conduct was in conformity with the law, the court may consider whether the issue was previously unsettled. In Wood v. McGrath, North ,¹¹ we stated that an attorney is not liable for an error in judgment on a point of law which has not been settled by an appellate court and on which reasonable doubt may be entertained by well-informed lawyers, because an attorney has no duty to accurately predict the future course of unsettled law. This immunity rule encourages practicing attorneys in this state to predict, in a professional manner, the outcome of legal issues relevant to their clients’ cases.¹² Hence, if the law regarding citizen objectors as parties to an appeal was unsettled in Nebraska or a matter of first impression, then Snyder's judgment on the matter would be immune from...