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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 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 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 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.

3. Summary Judgment. The primary purpose of the summary judgment 

procedure is to pierce the allegations in the pleadings and show conclusively 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 uncontroverted 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.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

05/29/2020 12:07 AM CDT
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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 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.

10. Malpractice: Attorney and Client: Damages: Words and Phrases. In 

a cause of action for professional negligence, legal injury is the wrongful 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 continuous representation exception does not apply to toll the statute of 

limitations.

13. Summary Judgment: Affidavits. Where the movant for summary 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.

14. Summary Judgment. Conclusions based on guess, speculation, conjecture, 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.
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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 appellees’ 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 underlying 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 
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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 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 negligence 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’ attorneyclient 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 
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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 termination 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 doctrine.” 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 discovery 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 contend 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 
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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 limitations, thereby giving them 2 years to file their legal malpractice 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 discovery 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 pleadings 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 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 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 
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material issue of fact that prevents judgment as a matter of 

law. Id.

The Dondlingers’ legal malpractice action is a claim of professional 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 professional 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 rendering 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 continuous 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 negligence claims is set forth in §25-222, quoted above. By 

the terms of the statute, the discovery rule applies only 
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when the cause of action is not discovered and could not 

reasonably have been discovered within the 2-year limitations period. If the discovery rule applies, then the limitations period is 1 year from the time the cause of action 

is or could have been discovered. “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. 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 misconduct. 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 relationship and services for the same or related subject matter 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 relationship and that the continuous representation rule is 

inapplicable when the claimant discovers the alleged 

negligence prior to the termination of the professional 
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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 representation, 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 appellees’ 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 telephone conference between myself and Terry Dondlinger 

and Valerie Dondlinger. In this telephone conference, 
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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 negligence at issue in this Complaint. This fact is reflected in 

[the Dondlingers’] Statement of Undisputed Facts.

[13] If uncontroverted, this evidence satisfied the appellees’ 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 summary 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 filing 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 
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the underlying act or omission and an indication that the attorneys 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 “negligently 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, following 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 continuous 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 relationship, it was incumbent on the Dondlingers to controvert this 
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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 judgment 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 possibilities 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 inference 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 relationship. 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’ evidence 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 
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opinion is correct. We have stated that the continuous representation 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 treatise 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 doctrine 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 (collecting 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 services. 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 surgeon must have all reasonable time and opportunity to 
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correct the evils which made the observation and treatment 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 malpractice, 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 physicianpatient relationship are the primary considerations underlying 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 difficult. See Miller v. United States, 458 F. Supp. 363, 366 

(D. Puerto Rico 1978) (“[t]he rationale for the [continuing treatment doctrine] is the protection of the confidential 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.
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The foregoing rationales are in service to permit the professional 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 commence 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 representation 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 statute, Neb. Rev. Stat. § 25-222 (Reissue 2016), which provides 
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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 appellees 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 representation 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 continuous representation rule). I too believe those purposes will 

rarely, if ever, be served given our rule that the continuous representation doctrine does not apply when the claimant discovers 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 
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invoked under our precedent would be one in which a former 

client learns of malpractice committed by his or her attorney 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 MillerLerman 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 negligence 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 exceptions, 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 interpretation 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 recognized 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, 
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894 N.W.2d 296 (2017). But one of the main reasons a court 

might adhere to a legal doctrine notwithstanding its questionable underpinnings is that parties have relied on the existence 

of that precedent. See id. It is difficult for me to believe, however, 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 representation 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 doctrine should be recognized at all.

Stacy, J., joins in this concurrence.