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Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose no genuine issue regarding any material fact or the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.
In June 2000, Stanley Wolski, Jr. retained Josephine Walsh Wandel to represent him in a dispute with his sister, Rosemary Parriott, regarding ownership of real property located in Cass County, Nebraska. In November 2001, the parties advised the court that they had settled the case. Under the terms of the settlement, Wolski was granted a life estate in the 119-acre tract, with the remainder to Parriott or her lineal heirs. The court approved the settlement agreement and awarded Wolski a life estate in the real property and awarded the remainder interest to Parriott and her lineal heirs, subject to the condition that mineral lease payments and condemnation awards with respect to the property were to be divided equally between the parties. Wolski then commenced the present action against Wandel, alleging that the latter breached her duty to Wolski by failing to use the degree of skill and care ordinarily used by Nebraska licensed attorneys in several particulars, all relating in some way to the settlement of the litigation against Parriott. Wolski claimed damages based upon the difference in value of fee simple title to the real property and the life estate which he received in the settlement. The district court granted Wandel’s motion for summary judgment, holding that Wolski had failed to demonstrate the existence of a genuine issue of material fact. Wolski appealed.
Was there a genuine issue of material fact with respect to Wolski's allegation that Wandel was negligent in representing him in a prior action which was concluded by a settlement?
The court concluded that the Wandel’s motion for summary judgment was properly granted. As the party moving for summary judgment, Wandel was required to make a prima facie case by producing enough evidence to demonstrate that she would be entitled to judgment if the evidence were uncontroverted at trial. According to the court, Wandel met this burden by offering the affidavit of an expert witness. Wandel’s expert opined that the outcome of the underlying litigation was uncertain, that the settlement was a reasonable resolution of the dispute, and that Wandel’s performance met the standard of care. Wolski did not meet his burden of demonstrating the existence of a genuine issue of material fact. Although Wolski’s expert expressed criticism of certain aspects of Wandel’s representation, he did not specifically opine that Wandel breached the applicable standard of care.