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Thomas Balames, individually and as attorney in

fact for Richard J. Kostyra et al., appellee, 

v. Robert V. Ginn and Brashear LLP, 

formerly known as Brashear

and Ginn, appellants.

___ N.W.2d ___

Filed April 17, 2015. No. S-13-1087.

1. New Trial: Appeal and Error. An appellate court reviews a trial court’s ruling 

on a motion for a new trial for abuse of discretion.

2. Judges: Words and Phrases. A judicial abuse of discretion exists when the 

reasons or rulings of a trial judge are clearly untenable, unfairly depriving 

a litigant of a substantial right and denying just results in matters submitted 

for disposition.

3. New Trial. A court should sustain a motion for new trial only when an error has 

occurred that is prejudicial to the rights of the unsuccessful party.

4. ____. A district court has inherent authority to order a new trial, in the same 

term, where necessary to correct prejudicial errors—especially its own errors—in 

the trial.

5. New Trial: Juries. A court’s inherent authority to correct prejudicial errors in a 

trial does not include the power to invade the province of the jury and to set aside 

the verdict and grant a new trial because the court arrived at a different conclusion than the jury on the evidence that went to the jury.

6. Malpractice: Attorney and Client: Negligence: Proof: Proximate Cause: 

Damages. In a civil action for legal malpractice, a plaintiff alleging professional 

negligence on the part of an attorney must prove three elements: (1) the attorney’s employment, (2) the attorney’s neglect of a reasonable duty, and (3) the 

attorney’s negligence was a proximate cause of the client’s loss.

7. Malpractice: Attorney and Client. A client cannot recover in a legal malpractice case when the alleged injury was caused by the client’s own conduct.

8. Malpractice: Negligence: Proximate Cause. A plaintiff’s contributory negligence is a defense in a malpractice action when it contributed to the professional’s inability to meet the standard of care and was a proximate cause of the 

plaintiff’s injury.

9. Malpractice: Torts. A legal malpractice action is governed by tort principles.

10. Malpractice: Attorney and Client: Negligence. A client’s contributory negligence may be a defense in an appropriate legal malpractice action.

11. Attorneys at Law: Trial. A trial court has discretion to determine whether an 

attorney’s closing argument exceeds the legitimate scope of the issues.

12. Directed Verdict: Evidence. A directed verdict is proper only when reasonable 

minds cannot differ and can draw but one conclusion from the evidence, that is, 

when an issue should be decided as a matter of law.

13. Directed Verdict: Appeal and Error. In reviewing a directed verdict, an appellate court gives the nonmoving party the benefit of every controverted fact and 

all reasonable inferences from the evidence.
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14. Attorney and Client. A client has the ultimate authority to determine the objective of a legal representation.

15. ____. An attorney should make reasonable efforts to explain the legal consequences of a course of conduct that a client insists upon taking.

16. Malpractice: Attorney and Client. The breach of a duty in a legal malpractice 

action is a fact-specific inquiry. Only when reasonable people could not disagree 

about the foreseeability of the injury should a court decide this issue as a matter 

of law.

17. Malpractice: Attorney and Client: Expert Witnesses. In a legal malpractice 

action, the factual inquiry as to whether an attorney breached a duty of care must 

be supported by expert opinion.

18. Attorney and Client. Upon the termination of a legal representation, a lawyer should take steps to the extent reasonably practicable to protect a client’s interests.

19. Malpractice: Attorney and Client. A client cannot recover for legal malpractice 

when the attorney has relied on the client’s misrepresentations.

20. Juries: Verdicts: Presumptions. When the jury returns a general verdict for one 

party, a court presumes that the jury found for the successful party on all issues 

raised by that party and presented to the jury, particularly when the opposing 

party did not ask the court to give the jury a special verdict form or require the 

jury to make special findings.

Appeal from the District Court for Douglas County: James

T. Gleason, Judge. Judgment vacated, and cause remanded 

with directions.

Mark C. Laughlin and Patrick S. Cooper, of Fraser Stryker, 

P.C., L.L.O., for appellants.

Steven E. Achelpohl, of Gross & Welch, P.C., L.L.O., 

Lawrence J. Acker, of Lawrence J. Acker, P.C., and Jay 

Ferguson for appellee.

Heavican, C.J., Wright, Connolly, McCormack, MillerLerman, and Cassel, JJ.

Connolly, J.

SUMMARY

The appellee, Thomas Balames, filed this legal malpractice action against Robert Ginn and Brashear LLP, formerly 

known as Brashear and Ginn (collectively Ginn), the firm 

where Ginn practiced when the alleged malpractice occurred. 

Balames brings this action for himself and three other individuals for whom he serves as attorney in fact (collectively 
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Balames). Balames claimed that Ginn negligently failed to 

obtain signatures on a guaranty for a loan that Balames made 

to a third party and failed to inform Balames of the missing 

signatures. When the third party defaulted, Balames could 

not obtain a judgment against the individuals who were the 

intended guarantors for the full amount of the third party’s 

obligation. The jury returned a general verdict for Ginn, but 

the court granted Balames a new trial.

Ginn assigns multiple errors to the district court’s rulings, 

but we decide this appeal primarily on one issue: whether the 

court erred in granting Balames a new trial. We conclude that 

it did. We therefore vacate the court’s order that sustained 

Balames’ motion for a new trial and remand the cause with 

instructions for the court to reinstate the judgment for Ginn.

BACKGROUND

Transaction Documents to Restructure

Debt Owed to Balames

In 2003, a large hog farm operation called Bell Farms 

defaulted on a $3-million loan from Balames. In 2004, Balames 

agreed to restructure the debt with a new entity called Banopu, 

LLC, which is an acronym for “Balames Note Purchase.” Two 

members of Banopu were the general partners of Bell Farms. 

Ginn was Balames’ attorney for this transaction and worked 

with the attorney for Banopu and the guarantors to draft the 

closing documents.

The first document was a purchase agreement in which 

Banopu agreed to (1) “purchase” the loan that Balames 

made to “Sun Prairie”—an entity related to Bell Farms—for 

$3 million; (2) assign its right to payments from Sun Prairie to 

Balames for 4 years; (3) execute a promissory note to Balames 

for the purchase price; and (4) make payments to Balames as 

set out in a payment schedule. Members of Banopu who were 

identified as “guarantors” promised to guarantee payment of 

the purchase price. Balames promised to deliver the original 

loan documents—including promissory notes and guaranties—

to Banopu on the effective date. That date was whenever a 

separate financial transaction closed, and the purchase agreement was contingent upon that event.
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Under the purchase provision, the interest rate for the purchase price was the prime rate plus 4 percent. But under a 

separate “default interest” provision, the interest rate increased 

to the prime rate plus 13.25 percent if Banopu or Sun Prairie 

defaulted on their payments.

The second document was the promissory note. It stated 

that the note was secured by the guaranties of Banopu’s members. The transaction contemplated that Banopu’s 11 members 

would sign a separate guaranty, promising to pay Balames the 

amount due under the note if Banopu failed to cure any default 

in payments. Like the purchase agreement, the note included 

a provision for a higher interest rate if Banopu defaulted 

on payments.

North Dakota Litigation

In 2007, Banopu defaulted on the loan. The record shows 

that only one Banopu member had signed the separate guaranty. In 2008, Balames sued Banopu and its members in a 

North Dakota court to collect the money and interest that 

Banopu owed on the loan. After a trial, that court determined 

that Banopu’s members intended to guarantee the purchase 

price of $3 million plus regular interest. But because all the 

intended guarantors did not sign the separate guaranty, the 

court determined that Banopu’s members were not liable for 

the higher interest rate imposed on Banopu if it defaulted 

on the payments. It determined that Banopu was liable for 

$3,946,092.92, which included interest at the rate of prime 

plus 13 percent. But it ruled that Banopu’s members were 

liable for only $3,349,865.48 at the statutory interest rate of 

7 percent.

Parties’ Pleadings

Balames alleged that Ginn was negligent for failing to 

(1) draft a complete guaranty to secure the purchase price 

and the promissory note; (2) circulate and secure the guaranties; (3) notify Balames of Ginn’s failure to secure the 

guaranties; and (4) assist Balames to collect the balance 

of the note, interest, and attorney fees. For damages, he 

sought the difference between the $3,946,092.92 judgment 
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he obtained against Banopu at the higher interest rate and 

the amounts he collected from Banopu and its members. He 

also sought $337,051.14 in attorney fees for his attempted 

enforcement of the guaranty, for total damages in the amount 

of $1,315,598.46.

Ginn denied all allegations of negligence and alleged that 

Balames had failed to state a cause of action. Additionally, 

Ginn alleged that Balames’ claim was barred by the statute 

of limitations, equitable estoppel, laches, failure to mitigate 

damages, the doctrine of unclean hands, and the negligence or 

contributory negligence of Balames or other individuals.

Evidence at Trial

In 2000, Balames formed a business called Accelerated 

Assets (Accelerated), an investment company specializing in 

purchasing or “lending against” debt portfolios. To make the 

loan to Bell Farms, he and his business associates borrowed 

money from their bank and personally guaranteed the loan. 

When they restructured Sun Prairie’s debt with Banopu, they 

determined that Banopu’s members were capable of repaying 

the debt if it defaulted.

Balames said that Ginn was responsible for circulating the 

transaction documents for signatures and that he believed this 

effort was ongoing in February or March of 2004. Ginn never 

told Balames that any intended guarantor had balked.

Ginn agreed that he had a duty to ensure the signatures 

were properly affixed to the closing documents and that he 

had not delegated this responsibility. Ginn said that he had 

anticipated being able to review the documents after the circulation for signatures was completed. He knew that obtaining the Banopu members’ personal guaranties was crucial 

to Balames. But Banopu’s members were reluctant to sign 

the guaranty until they had possession of the original loan 

documents. Ginn said Balames knew about their resistance 

and Ginn’s efforts to obtain their signatures. Ginn explained 

that the Banopu transaction was a smaller part of a much 

larger reconfiguration of Sun Prairie’s debt. He said a larger 

and separate transaction had to close before Ginn could get 

signed copies for the Banopu transaction. He said there was 
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no scheduled closing date for the Banopu transaction because 

he could not control when the Banopu members would finally 

sign the documents.

The larger transaction was scheduled to close on July 6, 

2004. Ginn said that on June 30, just before he went on vacation, he sent the documents for the larger transaction, with 

Balames’ signature, to an attorney for the guarantors and to 

Balames. Ginn said Balames expressed no sense of urgency 

about closing the Banopu transaction when Ginn left for vacation. But after the larger transaction closed on July 6, Ginn 

received e-mails and telephone calls from Balames that he had 

to close the Banopu transaction immediately because the bank 

was pressuring him. Balames agreed his bank was pressuring 

him to obtain the loan documents.

The record shows that on July 7, 2004, Balames e-mailed 

Ginn while he was on vacation and asked him to “overnight 

today — if at all possible — a complete set of executed 

banopu loan documents” to his bank. Balames provided the 

address of the banker to whom he wanted the documents sent: 

“if you could confirm via email that when they go, i would 

appreciate it very much.” Balames e-mailed again: “are you 

going to have them tomorrow??? i need to get them to the 

bank as quickly as humanly possible...any ideas???” Ginn then 

forwarded Balames’ original e-mail with the banker’s address 

to an attorney for the guarantors with the following message: 

“I have talked to [Balames] and he absolutely needs you to 

overnight the originals to his bank per the e-mail forwarded 

herewith. Please send copies to me.” Afterward, Ginn reported 

to Balames that the documents “are being overnighted to me 

and, upon receipt, I will copy and send on per your instructions.” About an hour later, Ginn e-mailed Balames again: “I 

will have the originals sent directly to the bank, if you wish, 

with copies to me. My fear is there will be something wrong/

missing/etc that we won’t have the opportunity to catch and 

fix first.”

On July 9, 2004, the opposing attorney sent Ginn an e-mail 

that referred to an attachment: “See attached completely executed Purchase Agreement. The original note and a copy of 

the Purchase Agreement with Banopu’s signature has been 
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delivered to Balames’ bank today. They need the guarantors’ 

signatures yet for the Purchase Agreement. Please forward 

them on to [Balames’] bank.” The opposing attorney sent this 

e-mail to Balames also.

On July 12, 2004, Balames sent Ginn another e-mail: “[T]his 

is what i have received from [the opposing attorney] and have 

subsequently forwarded to the bank. is this everything???” 

Ginn responded on July 13: “I am on vacation with the worst 

dial-up internet access imaginable and I can’t open documents. 

[I have] confirmed that the purchase agreement was sent to you 

and that the note and guaranty were sent directly to the bank. 

Can you confirm this with the bank?”

Balames said that when Ginn wrote he would forward the 

copies to the bank and keep a copy, he believed that Ginn 

would review the documents to make sure they were properly 

executed. He could not recall Ginn’s reporting that he did not 

receive the documents. Balames said Ginn never told him to 

go to the bank and inspect the documents for signatures or to 

ensure that the bank received them. Balames could not recall 

having any telephone calls with Ginn while Ginn was on vacation or asking the bank to postpone the closing until Ginn 

returned from vacation.

On cross-examination, however, Balames said that he called 

the bank to confirm that the documents had arrived. He could 

not recall the conversation but remembered receiving a confirmation that the documents were there. He could not recall 

telling Ginn that he confirmed the bank’s receipt of the documents. When asked if he would dispute Ginn’s testimony that 

he had done so, Balames said that he would have only checked 

to see if the bank received a package from Ginn.

Balames knew that the guaranty was being circulated and 

had to be signed to close the deal. But he could not recall a 

separate transaction that had to close before the Banopu transaction could close. Balames denied telling Ginn to stop work 

in July 2004. But he was impeached with his deposition testimony that he could not recall telling Ginn to stop work.

Ginn testified that he received no attachment to the July 9, 

2004, e-mail from the opposing attorney and could not open 

the attachment that Balames sent with his July 12 e-mail. 
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Ginn said the e-mails were only part of his conversations with 

Balames. He advised that they postpone the closing until he 

returned, but Balames refused to wait. So Ginn suggested that 

Balames send him the documents overnight for review and 

then Ginn would send them to the bank. Balames said that this 

procedure was not fast enough. Ginn then called the opposing 

attorney, who told him the signed copies had been sent to the 

bank. And Ginn said Balames confirmed to him in a telephone 

call that the bank had received the signed note and guaranty. 

Ginn told Balames that as soon as he returned, they would get 

everything “tied up.”

But Ginn said that he performed no further work because 

Balames fired him on July 13, 2004. Ginn said Balames 

told him that the guarantors were paying for Ginn’s services 

only through the closing and that Balames would not pay 

Ginn after that. So Ginn did not attempt to confirm that all 

the signatures had been obtained. He said Balames never 

asked him to do any further work. He denied that he had any 

responsibility to review the documents after Balames directed 

him to stop work. Eventually, it was discovered that no copy 

of the separate guaranty was filed with the bank for the 

Banopu transaction.

Both parties presented expert testimony to opine whether 

Ginn had breached the professional standard of care. Two of 

Balames’ experts testified that Ginn had breached the standard because he failed to ensure that someone in his firm was 

available to review the documents while he was on vacation 

and failed to review the documents after he returned. One 

expert opined that Ginn had breached the standard of care 

even if he offered to review the documents while he was on 

vacation. The other agreed that Ginn could meet the standard 

of care by reviewing the documents while on vacation. Both 

of them believed Ginn had a professional duty to review the 

documents when he returned from vacation to protect Balames’ 

interests, even if Balames had terminated his services. But one 

of Balames’ experts conceded that if Balames told Ginn the 

bank had received signed closing documents, then Ginn was 

entitled to rely on that statement and did not breach the standard of care.
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Ginn’s expert opined that Balames had changed the scope 

of the attorney-client relationship while Ginn was on vacation 

by insisting that the closing go forward despite Ginn’s warning that he should review the documents and later by directing 

Ginn to stop work. Because Ginn had no expectation that the 

Banopu transaction would suddenly become urgent while he 

was on vacation and he had kept in touch with Balames, he 

did not breach any duty by failing to prepare another attorney to handle the transaction while he was gone. And once 

Balames directed the transaction to close despite Ginn’s advice 

to wait, all Ginn could do was to inform Balames that he could 

not review the documents and things could go wrong. Ginn’s 

expert believed that this limited duty particularly applied with 

a client sophisticated in making these types of loans because 

Balames needed only to verify the presence of signatures, a 

task that is ministerial in nature.

Additionally, because of Balames’ experience, Ginn’s 

expert believed Ginn could trust Balames’ confirmation that 

the bank had received the signed documents. Because both 

Balames and the bank had an interest in ensuring the signatures were present, he believed Ginn had reasonably relied on 

Balames’ confirmation. Finally, he opined that when Balames’ 

directed Ginn to stop work, he had a duty to follow that direction because the relationship had terminated. He explained 

that to countermand such directions from a competent client might harm the client in a way that an attorney could 

not anticipate.

The Court’s Directed Verdicts and

Closing Argument Ruling

After both sides rested, Balames moved for a directed 

verdict on Ginn’s contributory negligence defense. The court 

granted the motion. The court also ruled that it would not 

instruct the jury on this defense. Ginn renewed his motions 

for a directed verdict on the malpractice claim and Ginn’s 

statute of limitations defense, which motions the court 

again overruled.

The closing arguments were not recorded, but the court 

did record the parties’ in camera arguments regarding closing 
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arguments. The court stated that Ginn had exposed a large 

chart, exhibit 140, to the jurors. Exhibit 140 listed Ginn’s 

points in closing argument:

FACTORS TO CONSIDER REGARDING MR. 

BALAMES’ CONFIRMATION THAT EXECUTED 

DOCUMENTS HAD BEEN RECEIVED

1. BELIEVABLE?

2. CLERICAL TASK

- Signatures

- vs. drafting guaranty

- within competence of sophisticated client and Bank

3. SOPHISTICATED/RELIABLE

- Random, unknown person

- Mr. Balames

- Bank

4. SIMILAR INCENTIVE TO COMPLETE TASK

- Mr. Balames

 - As quickly as humanly possible

 - Loan expired? (Ex. 98-101)

- Bank

 - $3 million loan; default; no securing documents

During the in camera hearing, Balames stated that the 

court had sustained his three objections to Ginn’s arguments 

or charts as violating the court’s ruling for Balames on 

Ginn’s contributory negligence defense. Ginn responded that 

he was not using the charts to show Balames’ contributory 

negligence. He argued that whether Balames was sophisticated in these transactions was relevant to whether Ginn had 

reasonably relied on his statements: “[T]here was testimony 

from every single expert in this trial not as to contributory 

negligence but as to the standard of care breach alone.” 

Balames countered that Ginn was attempting to shift the duty 

to him to verify that the documents were signed. He argued 

that Ginn’s testimony showed he had asked Balames only to 

confirm that the bank received the closing documents, not to 

confirm that it received signed documents. The court ruled 

that exhibit 140 impermissibly raised the issue of Balames’ 

contributory negligence and that Ginn could not show it to 

the jury.
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The court also permitted Balames to make a record of his 

objection to exhibit 141, a different chart. Exhibit 141 is a 

summary of Ginn’s arguments regarding Balames’ claim that 

he checked with the bank only to see if it had received a package from Ginn:

THE “PACKAGE” DEFENSE

Note: brand new theory

1. [Balames] knew there were 3 separate closing docs, 

including a separate guaranty

Source: [Balames]; [Ginn]; numerous e-mails

2. [Balames] knew guarant[i]es had to be signed

3. [Balames] understood [Ginn] couldn’t confirm signatures and something could be missed

4. Limited [Ginn] requests make no sense:

- confirm unsigned guarant[i]es received by the 

Bank?

- confirm some, but not all, executed docs received?

- vaguely confirm the Bank received a “package”

5. [Balames] called his own banker

- No recollection as to who

- No docs produced

- No info as to where bankers are today

6. [Balames], not [Ginn], decides the deal has closed 

and [Ginn] should stop work.

After Balames objected, the parties discussed exhibit 141 

in a sidebar. The court sustained Balames’ objection to Ginn’s 

argument using exhibit 141 and directed Ginn not to further 

exhibit it to the jurors. But the court stated, “It’s available 

to them prior to [the objection].” Ginn said that he would 

follow the court’s order but asked the court not to cause the 

jury to unnecessarily focus on its ruling by giving a curative 

instruction. The court rejected this request. It told the jurors 

that before the parties’ in camera discussion, they had at least 

glimpsed a page that Ginn wanted to use in argument, but that 

the court had ruled the page was objectionable. It instructed 

the jurors that the page was argument, not evidence, and to 

ignore it.
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Posttrial Motions and Rulings

After the jury returned its verdict, Balames moved for 

a new trial and judgment notwithstanding the verdict. He 

offered exhibit 142, which was a summary of Ginn’s alleged 

admissions from the trial transcript. The court responded that 

Balames should not waste time on the motion for judgment 

notwithstanding the verdict, because Balames had not moved 

for a directed verdict at the close of the evidence. Balames 

argued that the most important reason to grant a new trial was 

“the prejudice that occurred from repeated illustration of arguments that the Court had already ruled upon that should have 

been regarded as impermissible.” Balames argued that Ginn 

used the charts to buttress arguments that were not a proper 

part of the trial.

Balames argued that Ginn admitted he alone had a duty to 

ensure the documents contained the required signatures and 

that he had not delegated this duty. Balames argued that Ginn 

had a continuing duty to protect his client and that his arguments and charts had confused the jury as to who had the 

duty of care by suggesting that he had reasonably relied on 

Balames’ statements. He contended that the court could not 

presume the jurors had followed the law and not decided the 

case on Ginn’s affirmative defense.

In the court’s order granting a new trial, it stated that Ginn 

had repeatedly referred to matters relevant to Balames’ contributory negligence despite the court’s directed verdict for 

Balames and its order that this defense could not be submitted to the jury. It concluded that Ginn’s repeated violation 

of this order was not amenable to cure by any admonition to 

the jury. The court further determined that Ginn’s testimony 

made it “abundantly clear that [Ginn] violated his ethical 

duty to complete the transaction on the part of his client, 

and that his failure to complete that duty caused damage to 

his client.” The court concluded that it had also committed 

plain error in failing to instruct the jury that Ginn was liable 

as a matter of law for all damages proximately caused by 

his conduct.
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ASSIGNMENTS OF ERROR

Ginn assigns, condensed and restated, that the court erred 

as follows:

(1) overruling his motion for directed verdict because 

Balames presented no competent evidence to show that 

Balames could have collected the third party’s obligation from 

the intended guarantors;

(2) overruling his objections to a witness’ deposition testimony and an accompanying report, which Balames presented 

to show the financial status of two intended guarantors;

(3) overruling his motion for a directed verdict because the 

statute of limitations barred Balames’ malpractice claim;

(4) sustaining Balames’ motion for a new trial; and

(5) sustaining Balames’ motion for a directed verdict on 

Ginn’s contributory negligence defense and refusing to instruct 

the jury on that defense.

STANDARD OF REVIEW

[1,2] We review a trial court’s ruling on a motion for a new 

trial for abuse of discretion.1 A judicial abuse of discretion 

exists when the reasons or rulings of a trial judge are clearly 

untenable, unfairly depriving a litigant of a substantial right 

and denying just results in matters submitted for disposition.2

ANALYSIS

Our analysis necessarily discusses the role that a client’s 

negligence or contributory negligence plays in a legal malpractice case. As stated, however, we primarily focus on the court’s 

order granting a new trial.

Ginn contends that the court erred in granting Balames’ 

motion for a new trial for three reasons: (1) Ginn’s closing 

arguments were proper, (2) the evidence supported the jury’s 

unanimous general verdict for him, and (3) the court’s admonishment to the jury that closing arguments are not evidence 

cured any possibility of prejudice. Ginn also contends that 

1 See First Express Servs. Group v. Easter, 286 Neb. 912, 840 N.W.2d 465 

(2013).

2 Breci v. St. Paul Mercury Ins. Co., 288 Neb. 626, 849 N.W.2d 523 (2014).
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the court incorrectly concluded that it should have directed a 

verdict for Balames on the issue of liability and instructed the 

jury that Ginn was liable as a matter of law.

Balames views it differently. He contends that the court’s 

order was correct for two reasons: (1) Ginn’s closing argument 

violated the court’s directed verdict for Balames on Ginn’s 

contributory negligence defense, and (2) Ginn continued this 

line of argument even after the court sustained Balames’ 

objections to it. Balames argues that Ginn’s repeated arguments ran afoul of two rules of professional conduct: (1) Neb. 

Ct. R. of Prof. Cond. § 3-503.3(a)(1) and (3), which prohibit 

attorneys from knowingly making a false statement or offering 

false evidence to a court; and (2) Neb. Ct. R. of Prof. Cond. 

§ 3-503.4(e), which prohibits an attorney from alluding to a 

matter that the attorney does not reasonably believe is relevant or supported by admissible evidence. And because Ginn 

repeated his argument regarding Balames’ negligent conduct, 

Balames argues that the court correctly determined that it 

could not cure the improper argument by any admonition to 

the jury. Thus, a new trial was required.

The court’s reasoning in granting a new trial shows that it 

considered any reference to evidence of Balames’ negligence 

during Ginn’s closing argument to be prejudicial misconduct. 

So even without having the parties’ arguments, we can review 

the court’s order.

[3,4] We have held that a court should sustain a motion for 

new trial only when an error has occurred that is prejudicial 

to the rights of the unsuccessful party.3 And we have held that 

a district court has inherent authority to order a new trial, in 

the same term, where necessary to correct prejudicial errors—

especially its own errors—in the trial:

The purpose of a motion for a new trial is to afford 

the trial court an opportunity to correct errors that have 

occurred in the conduct of the trial. The trial court has 

inherent power over its judgments to correct errors and 

mistakes therein even to the extent of granting a new trial 

where such is necessary, whether or not a new trial is 

3 See Wendeln v. Beatrice Manor, 271 Neb. 373, 712 N.W.2d 226 (2006).
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requested or a motion for a new trial is filed. Such inherent power to grant a new trial is limited to those situations 

where prejudicial error appears in the record.4

[5] But a court’s inherent authority to correct prejudicial 

errors in a trial does not include the power to invade the province of the jury and to set aside the verdict and grant a new 

trial because the court arrived at a different conclusion than the 

jury on the evidence that went to the jury.5 And the court failed 

to recognize that the parties were disputing genuine issues of 

material fact.

Initially, we reject Balames’ baseless argument that Ginn’s 

attorney knowingly made false statements to the court, offered 

false evidence, or made arguments based on evidence that he 

reasonably should have known was inadmissible or irrelevant. 

The record contains ample admitted evidence from which a 

jury could have determined that (1) Balames insisted upon 

immediately closing the restructured debt transaction despite 

Ginn’s advice to wait until he could review the documents and 

(2) Balames directed Ginn to stop working on the case immediately after the closing. Moreover, even if Ginn’s attorney was 

wrong that Balames’ negligence was a relevant consideration 

after the court directed a verdict on Ginn’s contributory negligence defense, he did not refer to evidence in his closing argument that he knew to be irrelevant.

But Ginn was not wrong in thinking that the evidence was 

relevant. Instead, the problem was the court’s conclusion 

that Balames had no duty to protect his own interests in the 

closing and therefore could not be a proximate cause of his 

own injury.

[6,7] In a civil action for legal malpractice, a plaintiff alleging professional negligence on the part of an attorney must 

prove three elements: (1) the attorney’s employment, (2) the 

4 Harman v. Swanson, 169 Neb. 452, 454, 100 N.W.2d 33, 35 (1959). 

Accord, Quinlan v. City of Omaha, 203 Neb. 814, 280 N.W.2d 652 (1979); 

DeVries v. Rix, 203 Neb. 392, 279 N.W.2d 89 (1979); Gate City Co. v. 

Douglas County, 135 Neb. 531, 282 N.W. 532 (1938).

5 See Greenberg v. Fireman’s Fund Ins. Co., 150 Neb. 695, 35 N.W.2d 772 

(1949). 
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attorney’s neglect of a reasonable duty, and (3) the attorney’s 

negligence was a proximate cause of the client’s loss.6 So a 

client cannot recover in a legal malpractice case when the client’s own conduct caused the injury.7

 As relevant here, courts 

have held that a client cannot recover for malpractice in the 

following circumstances: (1) when the client failed to follow 

the attorney’s reasonable advice8; (2) when the client directed 

the attorney’s actions in a matter and the attorney acted in 

accordance with the client’s instruction9; and (3) when the 

client misrepresented material facts upon which the attorney relied.10

[8-10] We have similarly held that a plaintiff’s contributory negligence is a defense in a malpractice action when it 

contributed to the professional’s inability to meet the standard 

of care and was a proximate cause of the plaintiff’s injury.11

We have explained that tort principles govern a legal malpractice action.12 And we upheld an affirmative defense under 

the doctrine of avoidable consequences, which bars a plaintiff’s recovery for those damages that the plaintiff could have 

avoided by reasonable efforts.13 So we agree that a client’s 

contributory negligence may be a defense in an appropriate 

legal malpractice action. And there was evidence from which 

a reasonable fact finder could have found that Balames prevented Ginn from meeting the standard of care, and that his 

6 See Harris v. O’Connor, 287 Neb. 182, 842 N.W.2d 50 (2014).

7 See, generally, Annot., 10 A.L.R.5th 828 (1993).

8 See, e.g., Ott v. Smith, 413 So. 2d 1129 (Ala. 1982); W. Fiberglass v. 

Kirton, McConkie etc., 789 P.2d 34 (Utah App. 1990).

9 See, e.g., Boyd v. Brett-Major, 449 So. 2d 952 (Fla. App. 1984); Grenz v. 

Prezeau, 244 Mont. 419, 798 P.2d 112 (1990).

10 See, e.g., Blackstock v. Kohn, 994 S.W.2d 947 (Mo. 1999); Martinson 

Bros. v. Hjellum, 359 N.W.2d 865 (N.D. 1985).

11 See, Jensen v. Archbishop Bergan Mercy Hosp., 236 Neb. 1, 459 N.W.2d 

178 (1990); Lincoln Grain v. Coopers & Lybrand, 216 Neb. 433, 345 

N.W.2d 300 (1984).

12 See Borley Storage & Transfer Co. v. Whitted, 271 Neb. 84, 710 N.W.2d 

71 (2006).

13 See id.
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conduct was a proximate cause of his own injury, by insisting 

on proceeding with the closing when he knew that Ginn had 

not reviewed the documents.

[11] Although we do not agree with the court’s directed verdict on contributory negligence, we agree that at trial, its ruling 

precluded Ginn from arguing that defense to the jury. And a 

trial court has discretion to determine whether an attorney’s 

closing argument exceeds the legitimate scope of the issues.14

But even within those parameters, the court erred in concluding 

that Ginn’s repeated references to Balames’ negligence were 

prejudicial misconduct. Balames’ negligence was also relevant 

to the causation element of his malpractice claim.

Frequently, a client’s negligence in a legal malpractice case 

is more relevant to negating the proximate causation element of 

the claim than to showing that the plaintiff’s negligence was a 

contributing cause of the plaintiff’s injury:

Most of the earlier decisions, which purported to 

involve contributory negligence, instead concerned acts 

or omissions by the client that demonstrated or explained 

why the attorney was not negligent. Such decisions do not 

involve contributory negligence, since the defense presupposes negligence by the attorney and precludes or reduces 

recovery if the client’s negligence also was a contributing or proximate cause. Thus, a jury instruction to deny 

recovery if the plaintiff’s negligence was the proximate 

cause of the damage concerns causation, not contributory negligence.15

Here, Ginn specifically alleged that Balames’ own negligence or contributory negligence barred his claim. So even 

if the court had correctly directed a verdict for Balames on 

Ginn’s contributory negligence defense, it failed to recognize 

that the same evidence was relevant to proving that Ginn did 

not cause Balames’ injury.

14 See, e.g., Jacob A. Stein, Closing Argument § 16 (2001); 75A Am. Jur. 2d 

Trial § 453 (2007).

15 3 Ronald E. Mallen & Allison Martin Rhodes, Legal Malpractice § 22:2 at 

104-05 (2015).
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Equally important, the court erred in concluding that plain 

error permeated the proceedings because it did not instruct the 

jury that Ginn was liable for malpractice as a matter of law for 

failing to complete the transaction for Balames. Ginn correctly 

argues that questions of fact would have precluded a directed 

verdict on that issue.

[12,13] A directed verdict is proper only when reasonable 

minds cannot differ and can draw but one conclusion from 

the evidence, that is, when an issue should be decided as a 

matter of law.16 In reviewing that determination, we give the 

nonmoving party the benefit of every controverted fact and 

all reasonable inferences from the evidence.17 Viewing the 

evidence in the light most favorable to Ginn, the jury could 

have reasonably determined Balames knew that Ginn had not 

reviewed the transaction documents and insisted on proceeding 

with the closing despite that knowledge. Under Ginn’s version 

of the facts, Balames both ignored Ginn’s advice and directed 

his actions.

[14,15] Balames admitted to being pressured by his bank 

to complete the transaction, and he insisted upon getting 

the documents to the bank as soon as humanly possible. 

Ginn’s evidence supported a reasonable inference that because 

Balames and his business associates had personally guaranteed the loan, they had an immediate need to show the bank 

that they had renegotiated the debt with Banopu. The crucial 

point here is that a client has the ultimate authority to determine the objective of a legal representation.18 Of course, an 

attorney should make reasonable efforts to explain the legal 

consequences of a course of conduct that a client insists upon 

taking.19 Yet, evidence regarding Ginn’s advisement raised a 

question of fact whether Ginn had breached a duty of care. 

That is, if the jury determined that Balames insisted upon 

closing without Ginn’s review, whether Ginn’s advisements 

16 Lesiak v. Central Valley Ag Co-op, 283 Neb. 103, 808 N.W.2d 67 (2012).

17 See id.

18 See Neb. Ct. R. of Prof. Cond. § 3-501.2(a) (rev. 2008).

19 See Neb. Ct. R. of Prof. Cond. §§ 3-501.2(f) (rev. 2008) and 3-501.4.
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were sufficient to inform Balames of the potential consequences was a question of fact.

[16,17] In other words, a question of fact existed whether 

Ginn breached a duty to advise Balames because it was reasonably foreseeable that Balames would not understand that he 

must check the transaction documents for signatures.20 Because 

tort principles govern,21 the breach of a duty in a legal malpractice action is a fact-specific inquiry.22 Only when reasonable people could not disagree about the foreseeability of the 

injury should a court decide this issue as a matter of law.23 And 

in a legal malpractice action, the factual inquiry as to whether 

an attorney breached a duty of care must be supported by 

expert opinion:

Although the general standard of an attorney’s conduct is 

established by law, the question of what an attorney’s specific conduct should be in a particular case and whether 

an attorney’s conduct fell below that specific standard 

is a question of fact. . . . Expert testimony is generally 

required to establish an attorney’s standard of conduct 

in a particular circumstance and that the attorney’s conduct was not in conformity therewith. . . . A conflict of 

expert testimony regarding an issue of fact establishes 

a genuine issue of material fact which precludes summary judgment.24

Based on the conflicting evidence and expert testimony 

here, reasonable people could have disagreed whether Ginn’s 

advisement to Balames was insufficient because it was foreseeable Balames would fail to grasp that a potential problem could be the absence of signatures. Ginn’s expert specifically testified that Ginn had reasonably advised Balames 

things could go wrong because Ginn could not review the 

20 See A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907 

(2010).

21 See Borley Storage & Transfer Co., supra note 12.

22 See A.W., supra note 20.

23 Id.

24 Guinn v. Murray, 286 Neb. 584, 608-09, 837 N.W.2d 805, 824 (2013) 

(citations omitted).
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documents. And the expert believed Ginn’s advice was particularly sufficient because of Balames’ experience in these 

transactions and because checking for signatures required no 

legal expertise.

In our view, Ginn correctly argued that Balames’ understanding of Ginn’s warning must be assessed in light of his 

experience in such transactions generally and his dependence 

on Ginn’s guidance.25 And there was evidence from which 

the jury could have determined that Balames understood the 

importance of checking for signatures because Ginn testified 

that Balames told him the bank had received signed documents. If the jury believed that Balames insisted on proceeding 

with the closing despite an adequate advisement that things 

could go wrong and an understanding that he should check 

for signatures, then Balames was acting of his own accord 

and not depending upon Ginn’s advice. In that circumstance, 

Ginn did not breach a duty to advise and Balames’ failure to 

adequately review the documents was the sole proximate cause 

of his injury.

[18,19] Evidence that Balames told Ginn the bank had 

received signed documents, if believed, was also relevant to 

whether Ginn had a duty to check the documents for signatures 

when he returned from his vacation. It is true that upon the termination of a legal representation, a lawyer should take steps 

to the extent reasonably practicable to protect a client’s interests.26 But if the jury believed Ginn’s testimony that Balames 

told him the documents were signed, then Ginn was entitled to 

assume the truth of this statement. As explained, a client cannot recover for legal malpractice when the attorney has relied 

on the client’s misrepresentations.

In sum, because there were genuine issues of material fact 

that precluded judgment as a matter of law for Balames, the 

court erred in reasoning that it should have directed a verdict that Ginn was liable for malpractice as a matter of law. 

We refuse to hold that Ginn is liable for malpractice even if 

he proved that his client rejected his advice, alleviated his 

25 See, e.g., Scognamillo v. Olsen, 795 P.2d 1357 (Colo. App. 1990).

26 See Neb. Ct. R. of Prof. Cond. § 3-501.16(d).
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concerns about not following his advice, and terminated his 

services with instructions not to do further work on the matter 

for which he was hired.

[20] When the jury returns a general verdict for one party, a 

court presumes that the jury found for the successful party on 

all issues raised by that party and presented to the jury, particularly when the opposing party did not ask the court to give the 

jury a special verdict form or require the jury to make special 

findings.27 This is true both for Ginn’s failure-of-proof defense 

and his statute of limitations defense which barred Balames’ 

recovery even if he proved his malpractice claim. Because the 

court erred in concluding that plain error permeated the trial, 

this presumption controlled.

CONCLUSION

We conclude that the court abused its discretion in sustaining Balames’ motion for a new trial. The court erred in failing 

to recognize that evidence of Balames’ negligence was relevant 

to whether Ginn caused Balames’ injury, which was a question 

of fact involving conflicting evidence and expert opinion.

The court also erred in concluding that plain error permeated 

the proceedings because the court did not instruct the jury that 

Ginn was liable for malpractice as a matter of law. The evidence raised questions of fact whether Ginn breached a duty to 

advise Balames of adverse consequences or a duty to take reasonable steps to protect Balames’ interests even after Balames 

terminated Ginn’s services. And the jury could have drawn the 

following inferences from Ginn’s evidence:

• Balames insisted upon immediately proceeding with the closing, despite Ginn’s advice to wait and offer to review the 

documents while he was on vacation;

• Ginn reasonably advised Balames that something could go

wrong if Balames proceeded without Ginn’s review because 

Balames understood the guarantors’ signatures must be on the 

transaction documents;

• Ginn relied on Balames’ statement that the bank had received

signed transaction documents.

27 Golnick v. Callender, ante p. 395, ___ N.W.2d ___ (2015).
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If the jury believed Ginn’s version of the facts, then Ginn 

did not breach a duty to ensure that the documents were signed 

before or after the closing. Instead, Balames’ injury was caused 

by his failure to follow Ginn’s advice, his failure to review the 

documents for the required signatures, and his misrepresentation to Ginn that the documents were signed.

Because the court incorrectly concluded that plain error permeated the trial, we presume that the jury’s general verdict for 

Ginn shows it found for him on all the submitted issues. Those 

issues included (1) whether Ginn breached a duty of care, (2) 

whether Balames’ negligence was the sole proximate cause 

of his own injury, and (3) whether the statute of limitations 

for malpractice claims barred Balames’ recovery even if he 

proved his claim. Because we presume that the jury determined 

these issues in Ginn’s favor, we vacate the court’s judgment 

and remand with directions for it to reinstate the judgment 

for Ginn.

Judgment vacated, and cause

remanded with directions.

Stephan, J., not participating.

Chad P. Johnson, appellant and cross-appellee, v. 

Chris M. Nelson, Personal Representative of

the Estate of Stewart S. Minnick, deceased, 

et al., appellees and cross-appellants.

___ N.W.2d ___

Filed April 17, 2015. No. S-14-049.

1. Summary Judgment. Summary judgment is proper if the pleadings and admissible evidence offered at the hearing 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.

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 the facts and that the moving party is entitled to 

judgment as a matter of law.

3. Summary Judgment: Jurisdiction: Appeal and Error. When reviewing crossmotions for summary judgment, an appellate court acquires jurisdiction over