Kevyne A. Guinn, Michael F. O’Daniel and Maureen E. Toberer, Trustees of the Trusts Created under the Bernard M. O’Daniel Revocable Trust Agreement Dated October 22, 1998, as Amended by First Amendment to the Bernard M. O’Daniel Revocable Trust Agreement Dated march 28, 2001, and Personal Representatives of the Estate of Bernard O’Daniel and Elizabeth M. O’Daniel (Appellants) v. Robert J. Murray and Lamson Dugan & Murray LLP, a Nebraska limited liability partnership (Appellee/Cross-Appellant)
Douglas County, Judge W. Russell Bowie
Attorneys: W. Patrick Betterman, Lindsay E. Pedersen (Appellants) --- James M. Bausch, Andre R. Barry (Cline Williams Wright Johnson & Oldfather LLP)
Civil: Malpractice/breach of duty
Proceedings below: The trial court first granted Appellee’s motion for partial summary judgment. A jury trial was held on the issue of whether remaining claims were barred by the statute of limitations. The jury found Appellants’ claim was barred by the statute of limitations and the district court entered a judgment to that effect. A trial on the remaining issues was held and at the close of the evidence, Appellees moved for a directed verdict which was overruled. The district court entered a mistrial after the jury was unable to reach a verdict. Appellees filed a motion for judgment pursuant to Neb. Rev. Stat. § 25-1315.02 which was granted by the district court. Appellants filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.
Issues: (1) The trial court erred in granting Appellees' Motion for Judgment, in overruling O'Daniels' motions for directed verdict, in ruling the continuous representation doctrine does not apply, if the client knows of the problem, and in failing to give proper effect to Appellee's judicial admission that Murray's QTIP election resulted in the Nebraska and federal estate taxes. (2) The trial court erred in ruling that the statute of limitations barred O'Daniels' claims arising both before and after April 6, 2002, in granting Appellees' Motions for Summary Judgment, in entering Judgment in favor of Appellees on the statute of limitations on the conflicts claim, and in denying O'Daniels' summary judgment motion on the statute of limitations relating to O'Daniels' conflict of interest claim. (3) The trial court erred in ruling the statute of limitations bars evidence, such as, evidence concerning the harmful effect of Murray's representation of conflicting interests and his aiding constructive fraud. (4) The trial court erred in ruling the Personal Representatives: i) had no duty to minimize taxes, though the Will does not allow the PRs to voluntarily incur taxes and ii) need not obtain a court order to incur tax. (5) The trial court erred in submitting the mitigation defense and questions of law to the jury. (6) The trial court erred in overruling O'Daniels' Motion to Reconsider and in failing to strike the expert opinions of Appellees' expert, Gary Radil.