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224 286 NEBRASKA REPORTS

records, I would agree that she had no reason to complain.27 But this case does not present those facts. Because 

law enforcement agents sought Wiedeman’s records solely to 

incriminate her in a targeted investigation, the search was not 

an administrative inspection and did not fall within the special 

needs exception.

In short, targeted criminal investigations are distinct 

from other types of government searches. And once a court 

recognizes that citizens have legitimate expectations of privacy in their prescription records, which many courts have 

done, the Fourth Amendment requires probable cause and a 

warrant before intruding on that interest. Because I believe 

that Wiedeman had a legitimate expectation of privacy in 

her prescription records, she was entitled to challenge the 

search of these records without a warrant and her challenge 

had merit.

The Fourth Amendment does not prevent law enforcement agents from searching private information for a criminal 

investigation if the agents comply with its procedural protections of that information. I think most Nebraskans will be 

surprised to learn that by filling their prescription orders, they 

have publicly disclosed the medical information revealed by 

those orders. They likely did not suspect that a prosecutor, 

without any judicial oversight, could obtain their prescription 

records merely by issuing a subpoena. For these reasons, I 

cannot join the majority’s opinion.

27 See, Burger, supra note 18; Stone v. Stow, 64 Ohio St. 3d 156, 593 N.E.2d 

294 (1992).

Mary Kay Young, an individual, appella

Govier & Milone, L.L.P., et al., appe

___ N.W.2d ___

Filed July 12, 2013. No. S-11-959.

1. 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 
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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. Judges: Recusal: Appeal and Error. A motion requesting a judge to recuse 

himself or herself on the ground of bias or prejudice is addressed to the discretion 

of the judge, and an order overruling such a motion will be affirmed on appeal 

unless the record establishes bias or prejudice as a matter of law.

3. Attorney and Client: Malpractice: Negligence: Proof. A client who has agreed 

to the settlement of an action is not barred from recovering against his or her 

attorney for malpractice if the client can establish that the settlement agreement 

was the product of the attorney’s negligence.

4. 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) that 

such negligence resulted in and was the proximate cause of loss to the client.

5. Malpractice: Attorney and Client. In a legal malpractice action, the required 

standard of conduct is that the attorney exercise such skill, diligence, and knowledge as that commonly possessed by attorneys acting in similar circumstances.

6. ____: ____. 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.

7. Attorney and Client: Expert Witnesses. 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.

8. Summary Judgment. Summary judgment proceedings do not resolve factual 

issues, but instead determine whether there is a material issue of fact in dispute.

9. Summary Judgment: Expert Witnesses: Testimony. A conflict of expert testimony regarding an issue of fact establishes a genuine issue of material fact which 

precludes summary judgment.

10. Malpractice: Attorney and Client: Negligence: Proof. In an action for legal 

malpractice, the plaintiff must establish that but for the alleged negligence 

of the attorney, the plaintiff would have obtained a more favorable judgment 

or settlement.

11. Res Judicata. The doctrine of res judicata, or claim preclusion, bars the relitigation of a matter that has been directly addressed or necessarily included in a former adjudication if (1) the former judgment was rendered by a court of competent 

jurisdiction, (2) the former judgment was a final judgment, (3) the former judgment was on the merits, and (4) the same parties or their privies were involved in 

both actions.

12. Res Judicata: Judgments: Collateral Attack. Res judicata will not preclude a 

second suit between the same parties if the forum in which the first action was 

brought did not have jurisdiction to adjudicate the action; stated another way, 

judgments entered by a court without jurisdiction are void and subject to collateral attack.
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226 286 NEBRASKA REPORTS

13. Jurisdiction: Words and Phrases. Personal jurisdiction is the power of a tribunal to subject and bind a particular person or entity to its decisions.

14. ____: ____. Subject matter jurisdiction is the power of a tribunal to hear and 

determine a case in the general class or category to which the proceedings in 

question belong and to deal with the general subject matter involved.

15. Res Judicata: Judgments. Summary judgments, judgments on a directed verdict, 

judgments after trial, default judgments, and consent judgments are all generally 

considered to be on the merits for purposes of res judicata.

16. Judges: Recusal. Under the Nebraska Revised Code of Judicial Conduct, a judge 

must recuse himself or herself from a case if the judge’s impartiality might reasonably be questioned.

17. Judges: Recusal: Proof. In order to demonstrate that a trial judge should have 

recused himself or herself, the moving party must demonstrate that a reasonable person who knew the circumstances of the case would question the judge’s 

impartiality under an objective standard of reasonableness, even though no actual 

bias or prejudice was shown.

Appeal from the District Court for Douglas County: Pete

C. Bataillon, Judge. Affirm

James D. Sherrets, Diana J. Vogt, and Thomas D. Prickett, 

of Sherrets, Bruno & Vogt, L.L.C., for appellant.

James M. Bausch and Mary Kay O’Connor, of Cline, 

Williams, Wright, Johnson & Oldfather, L.L.P., for appellees Baird, Holm, McEachen, Pedersen, Hamann & Strasheim, 

L.L.P., et al.

William M. Lamson, Jr., and Cathy S. Trent-Vilim, of 

Lamson, Dugan & Murray, L.L.P., for appellees Govier & 

Milone, L.L.P., and Pamela Hogenson Govier.

Heavican, C.J., Connolly, Stephan, McCo

Cassel, JJ

Stephan, 

In this professional negligence case, Mary Kay Young, 

formerly Mary Kay Davis, filed a complaint against several 

law firms and individual attorneys who represented her in 

a marital dissolution proceeding. Young’s former husband, 

Henry Davis, filed for dissolution in July 2001. While that 

action was pending, the parties reconciled. As part of the 

reconciliation, they entered into two postmarital agreements 

which specified how their property would be divided in the 
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event of a future dissolution. At the request of both parties, 

the district court for Douglas County approved the postmarital 

agreements and dismissed the dissolution proceeding without prejudice.

Subsequently, Young filed a second dissolution proceeding in which she was represented by the law firms and attorneys who are the appellees in this case. Eventually, on the 

advice of these attorneys, Young accepted a settlement proposal from Davis which was based upon the postmarital agreements approved in the first dissolution action, and the marriage 

was dissolved.

Young later brought this action in which she alleged that 

her attorneys were negligent in advising her to accept the 

settlement proposal from Davis. The district court sustained the 

appellees’ motions for summary judgment. It reasoned that the 

actions of the attorneys were not the proximate cause of any 

damage to Young, because she could not show that her recovery in the dissolution proceeding would have been greater but 

for the allegedly negligent advice of the attorneys. The court 

specifically found that under the doctrines of res judicata and 

judicial estoppel, the order in the first dissolution proceeding 

which approved the parties’ postmarital agreements was binding on the court in the second proceeding.

Young appeals. We affirm the judgment of the district court.

I. BACKGROUND AND PROCEDURAL 

HISTORY

Young and Davis were married on January 7, 1989, in 

Omaha, Nebraska. Two children were born during the marriage.

1. First Dissolution Proce

Davis filed a petition for dissolution of the marriage on July 

23, 2001, in the district court for Douglas County. Young filed 

a cross-petition on July 26. While this proceeding was pending, Young and Davis entered into a postmarital agreement 

(PMA) in which they acknowledged marital difficulties. The 

PMA included covenants given “in consideration of the continuation of the marriage of the parties, and in consideration 

of the mutual promises, waivers and releases” made by each 

party. The PMA provided that Davis’ ownership interest in a 
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228 286 NEBRASKA REPORTS

meatpacking company would be considered separate nonmarital property and that his salary, earnings, and stock in the company would always be considered as such.

In the PMA, the parties identified marital property, which 

included cash, stocks, life insurance, jewelry, automobiles, a 

home, and a residential lot. The total value of the listed property was more than $6.28 million. The PMA provided that 

in the event of divorce, Young would receive $3 million; the 

Jaguar automobile; and her clothing, personal effects, and jewelry. Davis would retain the other assets, including the home 

and the residential lot. Young agreed to renounce any claim to 

Davis’ nonmarital assets. The PMA further provided that Young 

would not receive alimony or additional property. According to 

the PMA, any marital home acquired by either party during 

the continuation of the marriage would be titled in the name of 

the person whose separate property was used for the purchase. 

If they purchased property together, it was to be titled in both 

names as tenants in common without rights of survivorship. All 

income earned by either party during the continuation of the 

marriage was to remain separate property.

The PMA stated that each party had received the advice of 

counsel and was entering into the agreement freely and voluntarily, free and clear of any duress or undue influence from the 

other party, and with full knowledge and access to any necessary information. If either party was required to bring legal 

action against the other to enforce rights under the PMA, or if 

either attempted to challenge or set aside any term of the agreement, the prevailing party would be entitled to recover costs 

and expenses, including reasonable attorney fees. Each party 

agreed that the terms of the agreement were fair, reasonable, 

not unconscionable, and equitable.

The PMA was signed on November 26, 2001. On January 

9, 2002, Davis was given leave to dismiss his petition for 

dissolution without prejudice. Young was given leave to file 

an amended cross-petition. In that pleading, filed on January 

15, Young alleged that the marriage was irretrievably broken 

and should be dissolved. She also sought a declaratory judgment that the PMA was void because it was executed when 

she was under stress, duress, and emotional collapse and was 
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without control of her decisionmaking abilities. She alleged 

that because of her mental state, she did not knowingly, intelligently, or voluntarily execute the PMA, and that it was therefore null and void.

While Young’s cross-petition was pending, Young and Davis 

participated in private mediation in which neither was represented by counsel. Young and Davis entered into an amended 

postmarital agreement (APMA) on April 17, 2002. The APMA 

incorporated the PMA by reference and attachment. Young 

signed the APMA against the advice of the attorneys who 

represented her in the dissolution proceeding and who are not 

parties to this action. The APMA included specific provisions 

contemplating continuation of the marriage. It provided that 

upon execution of the APMA and the dismissal of all pending litigation, Young and Davis would again live together with 

their children. They agreed to “continue participating in family 

counseling and/or family therapy to further facilitate their reconciliation.” The APMA provided that neither it nor the PMA 

would be enforceable if Davis initiated a new action for dissolution or legal separation within 12 months, unless the action 

was based on evidence of Young’s infidelity.

The APMA provided that Davis would pay the state and 

federal income taxes on the income Young earned from the 

$3 million payment she was to receive under the PMA. Young 

was also to receive sole ownership of the parties’ residence. 

In the event the marriage was dissolved, Young would receive 

alimony of $12,500 per month for up to 10 years unless she 

remarried or she or Davis died. The APMA also provided 

that Young would receive an additional $1 million on the 

fourth anniversary of the execution of the APMA, regardless 

of whether the parties were married at the time. The APMA 

further provided that if either party contested its terms, the 

prevailing party would be responsible for paying all attorney 

fees and costs.

The APMA included an agreement by both parties to dismiss all pending litigation between them, including “[Young’s] 

declaratory judgment claim,” which had been filed at the time 

of her cross-petition for dissolution. The APMA further provided that if counsel for either party desired, the terms of the 
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PMA and APMA would be submitted for approval to the court 

in which the action was pending. Like the PMA, the APMA 

included representations that it was executed by both parties 

voluntarily, without undue influence, and with a full understanding of its terms.

At a hearing on April 23, 2002, Young and Davis presented 

a stipulation asking the district court to approve the terms of 

the PMA and APMA, to dismiss the dissolution proceeding 

without prejudice, and to dismiss Young’s declaratory judgment claim with prejudice. The stipulation expressly stated that 

dismissal of Young’s declaratory judgment claim with prejudice would mean she would be precluded from challenging 

the validity of the PMA and APMA. The stipulation was not 

signed by counsel for either party, although both parties were 

represented by counsel at the hearing.

Davis’ counsel called both parties to testify regarding their 

understanding of the PMA and APMA. Both testified that 

they intended to continue in their marital relationship upon 

resolving their differences with the PMA and APMA and that 

they understood both documents, considered them fair and 

reasonable, and were requesting the court’s approval of them. 

Young testified that she understood that if her declaratory judgment action was dismissed with prejudice, the APMA would 

be binding on her. She also testified that she understood the 

declaratory judgment could be dismissed without the court’s 

approving the PMA and APMA. Further questioning by the 

court elicited testimony from the parties regarding their educational backgrounds and the absence of any impairment to their 

ability to understand the proceedings. In an order entered on 

April 24, 2002, the court found that it had jurisdiction of the 

parties and the subject matter, approved the PMA and APMA, 

dismissed Young’s declaratory judgment claim with prejudice, 

and dismissed Young’s amended cross-petition for dissolution 

of marriage without prejudice.

2. Second Dissolution Proc

Thereafter, the parties lived together for approximately 17 

months. During that time, pursuant to the PMA and APMA, 
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Davis transferred ownership of the family residence, two automobiles, and $3 million to Young.

On October 6, 2003, Young filed a petition for dissolution 

of the marriage. At that time, she was represented by Pamela 

Govier and the law firm of Govier, Milone & Streff, L.L.P. 

(Govier firm), and a second law firm that is not a party to this 

action. The case was assigned to a district court judge who had 

not been involved in the prior proceedings.

In his answer and cross-petition, Davis admitted Young’s 

allegations that the marriage was irretrievably broken and that 

every reasonable effort to effect reconciliation had been made. 

He affirmatively alleged that the PMA and APMA controlled 

the determination of alimony and the distribution of real and 

personal property and that by virtue of the 2002 order approving the PMA and APMA, Young was barred from relitigating 

property and alimony issues by the doctrines of res judicata, 

collateral estoppel, and judicial estoppel. Davis sought custody 

of the parties’ minor children, an order granting him exclusive 

occupancy of his residence, a decree of dissolution incorporating the terms of the PMA and APMA, and other relief, including attorney fees and costs.

In her reply, Young alleged that the PMA and APMA were 

“procured by fraud, duress, and without full disclosure” and 

were “unconscionable, unenforceable, void, and against public 

policy.” Davis then filed a motion for partial summary judgment, asserting that the enforceability of the PMA and APMA 

had already been determined by a court and again asserting that 

Young was estopped from challenging their validity.

The court overruled Davis’ motion for summary judgment, 

concluding that the PMA and APMA were unenforceable 

because they were made in contemplation of divorce, were not 

consistent with “statutes regarding post-marital agreements,” 

and were contrary to public policy. Davis filed a motion for 

reconsideration, which the court also overruled.

The law firm which had originally served as cocounsel 

with the Govier firm withdrew from the case, and in August 

2004, Young retained the law firm of Baird, Holm, McEachen, 

Pedersen, Hamann & Strasheim, L.L.P. (Baird Holm firm), as 
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232 286 NEBRASKA REPORTS

cocounsel with the Govier firm. William Dittrick, a partner 

in the Baird Holm firm, was primarily responsible for the 

firm’s work on the case. Early in his involvement, Dittrick 

was advised by Govier that the district court had denied 

Davis’ motion for partial summary judgment and had held 

that the PMA and APMA were unenforceable. That holding was reaffirmed in February 2006, when the district court 

overruled Davis’ motion to bifurcate the trial in order to first 

determine the enforceability of the PMA and APMA. The court 

reaffirmed its prior order determining that the agreements 

were unenforceable.

But approximately 7 months later, the court, on its own 

motion, announced that it would reconsider its holding on 

Davis’ motion for partial summary judgment. After additional 

briefing, the court reversed its prior order and sustained Davis’ 

motion for partial summary judgment. The court reasoned that 

the April 2002 ruling that the PMA and APMA were fair, just, 

and not unconscionable is res judicata and bars further litigation between the parties.

Having prevailed on that critical issue, Davis proposed a 

settlement. He offered to abide by the PMA and APMA and to 

pay alimony of $12,500 per month for 106 months and child 

support of $60,000 per year for two children or $36,000 per 

year for one child. He also offered to waive his claim for reimbursement of $175,000 in attorney fees and waive any claim 

to additional attorney fees based on Young’s challenge of the 

APMA. The offer stated that if the matter were not settled, 

Davis would seek reimbursement of the $175,000, payment of 

all attorney fees and costs expended in defense of the PMA and 

APMA, and reduction of alimony for a term equal to one-half 

the length of the parties’ actual cohabitation (88 months) less 

a credit for the alimony paid during the proceedings. The total 

alimony award would extend for an additional 64 months. He 

also would seek return of all personal property Young removed 

from Davis’ home.

After consultation with her attorneys, Young agreed to 

accept the settlement offer. Dittrick stated in a letter dated 

December 4, 2006, that Young believed she must accept the 

terms of the settlement “because of the incredible economic 
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risk confronting her.” At a hearing on December 11, Davis 

testified that the parties had agreed that each would pay his or 

her own attorney fees and that he would not seek repayment 

of $175,000 that had been previously ordered by the court. 

Young testified that she understood she had no alternative but 

to accept the settlement because she would face bankruptcy if 

she went to trial. She said that her attorneys had explained the 

situation to her in great detail and that she understood that neither party would appeal the settlement. The court approved the 

settlement agreement and, on December 11, entered an order of 

dissolution incorporating the PMA and APMA.

3. Professional Negligence Proce

On November 14, 2008, Young filed this professional negligence action against the Baird Holm firm; the Govier firm, 

now Govier & Milone, L.L.P.; and individual members of 

the firms, including Dittrick and Govier. During the course 

of the proceeding, various other individual defendants were 

dismissed, and those dismissals are not at issue in this appeal.

Young alleged that the PMA and APMA were unenforceable because they were fraudulently procured by Davis, signed 

while she was under duress, and void as against public policy. 

She alleged that her attorneys, the appellees, were negligent 

in advising her about the PMA and APMA and in litigating 

issues regarding the enforceability of the agreement. She also 

alleged that they charged her excessive fees. She alleged that 

as a proximate result of their negligence, she lost the ability to 

appeal the enforceability of the PMA and APMA and “the ability to share in up to one-half of what [the attorneys] informed 

her was a $192 Million Marital Estate.” She prayed for judgment against the appellees, jointly and severally; for monetary 

damages of $100 million; and for disgorgement of attorney 

fees, interest, and costs. The appellees filed answers denying 

all claims and asking for dismissal of the action.

The appellees filed motions for summary judgment, and 

Young filed a cross-motion for summary judgment. The district court overruled Young’s motion, finding that there were 

genuine issues of material fact as to whether the appellees 

were negligent. However, the court granted the appellees’ 
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motions for summary judgment in part, finding that the order 

approving the PMA and APMA entered in the first dissolution 

proceeding was binding on the court in the second dissolution proceeding under the doctrines of res judicata and judicial estoppel. The court determined that even if Young could 

establish negligence by the appellees, she could not prove 

proximate causation.

The court reserved three issues for trial: (1) whether Govier 

failed to convey a $2 million settlement offer to Young, (2) 

whether there was a failure to submit counteroffers, and (3) 

whether the appellees charged excessive fees. Subsequently, the 

district court modified its order and granted summary judgment 

for the appellees on the first two of the previously preserved 

claims, leaving only the claim regarding excessive attorney 

fees for trial. Eventually, the parties reached a settlement as to 

the attorney fees and stipulated to the entry of a final judgment, 

which was entered on November 1, 2011. Young perfected this 

timely appeal.

II. ASSIGNMENTS OF ERROR

Young assigns, summarized and restated, that the district 

court erred in (1) overruling her motion for summary judgment 

on the issues of negligence and proximate cause, (2) sustaining the appellees’ motion for partial summary judgment based 

upon its determination that the PMA and APMA would have 

been binding on the court in the second dissolution proceeding 

if it had not been settled, and (3) overruling her motions for 

recusal of the district judge.

III. STANDARD OF REVIEW

[1] 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.1

1 Beveridge v. Savage, 285 Neb. 991, 830 N.W.2d 482 (2013).
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[2] A motion requesting a judge to recuse himself or herself 

on the ground of bias or prejudice is addressed to the discretion of the judge, and an order overruling such a motion will 

be affirmed on appeal unless the record establishes bias or 

prejudice as a matter of law.2

IV. ANALYSIS

Professional negligence actions against attorneys typically 

involve a “‘case within the case,’” the former being the prior 

lawsuit or transaction in which the attorney’s negligence is 

alleged to have occurred.3 Here, the case within the case is the 

second dissolution proceeding in which Young was represented 

by the appellees. She contends that they negligently advised 

her to settle that case after the court determined that it was 

bound by the first court’s approval of the PMA and APMA 

in the first dissolution proceeding. Thus, our “case within the 

case” actually has within it yet another case upon which the 

issues in this appeal are largely focused.

[3,4] A client who has agreed to the settlement of an action 

is not barred from recovering against his or her attorney 

for malpractice if the client can establish that the settlement 

agreement was the product of the attorney’s negligence.4 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) that such negligence 

resulted in and was the proximate cause of loss to the client.5

It is undisputed that a professional relationship existed between 

Young and the appellees. The issues in this appeal involve the 

elements of neglect of duty and proximate cause.

2 Huber v. Rohrig, 280 Neb. 868, 791 N.W.2d 590 (2010).

3 See Bowers v. Dougherty, 260 Neb. 74, 85, 615 N.W.2d 449, 457 (2000).

4 Wolski v. Wandel, 275 Neb. 266, 746 N.W.2d 143 (2008); Bruning v. Law 

Offices of Ronald J. Palagi, 250 Neb. 677, 551 N.W.2d 266 (1996).

5 Freedom Fin. Group v. Wooley, 280 Neb. 825, 792 N.W.2d 134 (2010); 

Radiology Servs. v. Hall, 279 Neb. 553, 780 N.W.2d 17 (2010).
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236 286 NEBRASKA REPORTS

1. Young’s Motion

Summary Judgme

[5-7] Young argues that the district court erred in denying her 

motion for summary judgment and in failing to find that certain 

conduct by the lawyers was malpractice which proximately 

caused her alleged damage. In a legal malpractice action, the 

required standard of conduct is that the attorney exercise such 

skill, diligence, and knowledge as that commonly possessed 

by attorneys acting in similar circumstances.6 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.7 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.8

[8,9] In support of her motion for summary judgment, Young 

presented the affidavits of attorney experts who opined that 

the appellees failed to meet the standard of care in advising 

Young to accept the settlement offer in the second dissolution 

proceeding. In response, the appellees submitted the affidavits 

of attorney experts who opined that they did not deviate from 

the standard of care. Summary judgment proceedings do not 

resolve factual issues, but instead determine whether there is a 

material issue of fact in dispute.9 A conflict of expert testimony 

regarding an issue of fact establishes a genuine issue of material fact which precludes summary judgment.10 Accordingly, 

the district court did not err in overruling Young’s motion for 

summary judgment.

6 Radiology Servs. v. Hall, supra note 5; Boyle v. Welsh, 256 Neb. 118, 589 

N.W.2d 118 (1999).

7 Radiology Servs. v. Hall, supra note 5; Wolski v. Wandel, supra note 4.

8 Wolski v. Wandel, supra note 4.

9 Farmington Woods Homeowners Assn. v. Wolf, 284 Neb. 280, 817 N.W.2d 

758 (2012); Conley v. Brazer, 278 Neb. 508, 772 N.W.2d 545 (2009).

10 See Schiffern v. Niobrara Valley Electric, 250 Neb. 1, 547 N.W.2d 478 

(1996).
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2. Appellees’ Motions 

Summary Judgme

[10] Young argues that the district court erred in sustaining 

the appellees’ motions for summary judgment. This inquiry 

focuses on the element of proximate cause. In an action for 

legal malpractice, the plaintiff must establish that but for the 

alleged negligence of the attorney, the plaintiff would have 

obtained a more favorable judgment or settlement.11 The district court determined that even if the appellees breached the 

standard of care as alleged by Young, she could not have 

received a more favorable settlement in the second dissolution proceeding, because the court was bound to enforce the 

PMA and APMA under the doctrines of res judicata and judicial estoppel.

(a) Res Judicata

[11,12] The doctrine of res judicata, or claim preclusion, 

bars the relitigation of a matter that has been directly addressed 

or necessarily included in a former adjudication if (1) the former judgment was rendered by a court of competent jurisdiction, (2) the former judgment was a final judgment, (3) the 

former judgment was on the merits, and (4) the same parties 

or their privies were involved in both actions.12 Res judicata 

will not preclude a second suit between the same parties if the 

forum in which the first action was brought did not have jurisdiction to adjudicate the action; stated another way, judgments 

entered by a court without jurisdiction are void and subject to 

collateral attack.13

It is clear that the validity of the PMA and APMA was 

directly addressed in the court’s order terminating the first 

dissolution proceeding, which included Young’s claim for 

11 Bellino v. McGrath North, 274 Neb. 130, 738 N.W.2d 434 (2007).

12 Kiplinger v. Nebraska Dept. of Nat. Resources, 282 Neb. 237, 803 N.W.2d 

28 (2011).

13 Ryan v. Ryan, 257 Neb. 682, 600 N.W.2d 739 (1999). See, also, Marshall 

v. Marshall, 240 Neb. 322, 482 N.W.2d 1 (1992); Zenker v. Zenker, 161 

Neb. 200, 72 N.W.2d 809 (1955); Koch v. County of Dakota, 151 Neb. 

506, 38 N.W.2d 397 (1949); 50 C.J.S. Judgments § 931 (2009).
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238 286 NEBRASKA REPORTS

declaratory relief, and that the two dissolution proceedings 

involved the same parties. Thus, the focus of our inquiry is 

whether the order terminating the first dissolution proceeding 

was a final judgment on the merits by a court of competent 

jurisdiction.

[13,14] Personal jurisdiction is the power of a tribunal to 

subject and bind a particular person or entity to its decisions.14

Subject matter jurisdiction is the power of a tribunal to hear 

and determine a case in the general class or category to which 

the proceedings in question belong and to deal with the general 

subject matter involved.15 It is undisputed that the court had 

personal jurisdiction over the parties in the first dissolution 

proceeding. The disputed issue in this appeal is whether it had 

subject matter jurisdiction to determine the validity of the PMA 

and APMA.

There are two possible sources of such jurisdiction: (1) the 

Uniform Declaratory Judgments Act16 and (2) the Nebraska 

statutes governing dissolution of marriage,17 both of which 

were implicitly invoked in the amended cross-petition filed by 

Young in the first dissolution proceeding.

In her cross-petition filed in the first dissolution proceeding, 

Young requested that the district court exercise its jurisdiction under the Uniform Declaratory Judgments Act and find 

the PMA to be void, because it was executed at a time when 

she was under stress, duress, and emotional collapse and was 

without control of her decisionmaking abilities. She alleged 

that because of her mental state, she did not knowingly, intelligently, or voluntarily execute the PMA and that it was therefore null and void.

The Uniform Declaratory Judgments Act includes the following grant of subject matter jurisdiction:

14 Abdouch v. Lopez, 285 Neb. 718, 829 N.W.2d 662 (2013).

15 Spady v. Spady, 284 Neb. 885, 824 N.W.2d 366 (2012); Peterson v. 

Houston, 284 Neb. 861, 824 N.W.2d 26 (2012).

16 See Neb. Rev. Stat. §§ 25-21,149 to 25-21,164 (Reissue 2008).

17 See Neb. Rev. Stat. §§ 42-347 to 42-386 (Reissue 2008 & Cum. Supp. 

2012).
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Courts of record within their respective jurisdictions 

shall have power to declare rights, status, and other legal 

relations whether or not further relief is or could be 

claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree 

is prayed for. The declaration may be either affirmative 

or negative in form and effect, and such declarations 

shall have the force and effect of a final judgment 

or decree.18

This broad authority encompasses the power to determine a 

party’s rights under a contract, including a claim that the contract itself is invalid. Section 25-21,150 provides:

Any person interested under a deed, will, written contract or other writings constituting a contract, or whose 

rights, status or other legal relations are affected by a 

statute, municipal ordinance, contract or franchise, may 

have determined any question of construction or validity 

arising under the instrument, statute, ordinance, contract, 

or franchise and obtain a declaration of rights, status or 

other legal relations thereunder.

In the context of domestic relations actions, we have previously held that a party was entitled to seek declaratory relief 

in order to determine rights under an agreement with a former husband made in contemplation of a divorce which had 

occurred in another state.19

As noted, Young specifically sought declaratory relief in the 

first dissolution proceeding when she asked the court to declare 

the PMA “null and void.” As a court of record, the district 

court had subject matter jurisdiction with respect to the claim 

for declaratory relief.20 The remaining question is whether the 

court actually exercised that jurisdiction.

18 § 25-21,149.

19 Dorland v. Dorland, 175 Neb. 233, 121 N.W.2d 28 (1963), overruled 

on other grounds, Landon v. Pettijohn, 231 Neb. 837, 438 N.W.2d 757 

(1989).

20 See, Bituminous Casualty Corp. v. Deyle, 234 Neb. 537, 451 N.W.2d 910 

(1990); § 25-21,149.
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240 286 NEBRASKA REPORTS

While Young’s claims for dissolution of her marriage and 

declaratory relief were pending before the court in the first 

dissolution proceeding, the parties entered into mediation and 

negotiation, which led to the reconciliation of the marriage and 

execution of the APMA. They then jointly asked the court to 

approve their settlement agreement, which included the PMA 

as amended by the APMA. In a written stipulation signed by 

both parties, they represented to the district court that they 

had “voluntarily, freely and clearly entered into the [PMA and 

APMA] without any duress or undue influence from the other 

party,” and they acknowledged that the terms of the agreements were “fair, just and not unconscionable.” Young then 

testified that she understood approval of the parties’ settlement 

would resolve all issues in her claim for declaratory relief 

and result in its dismissal with prejudice, meaning she could 

not in the future assert that the PMA and APMA were unenforceable. The court specifically questioned Young and found 

her competent.

[15] We conclude that the court exercised its jurisdiction 

under the Uniform Declaratory Judgments Act to approve the 

PMA and APMA and that its order constituted a judgment on 

the merits denying Young’s claim for a declaration that they 

were invalid. We have noted that summary judgments, judgments on a directed verdict, judgments after trial, default judgments, and consent judgments are all generally considered to 

be on the merits for purposes of res judicata.21 This was essentially a consent judgment in which the court, at the request of 

both parties, made specific findings regarding the validity of 

the PMA and APMA and the competency and capacity of the 

parties to enter into them. The court dismissed Young’s claim 

for declaratory relief with prejudice, just as it would have if it 

had found the PMA and APMA to be valid and enforceable in 

a contested proceeding.

21 DeVaux v. DeVaux, 245 Neb. 611, 514 N.W.2d 640 (1994) (superseded by 

statute on other grounds as stated in Alisha C. v. Jeremy C., 283 Neb. 340, 

808 N.W.2d 875 (2012)). See Jack H. Friedenthal et al., Civil Procedure 

§ 14.7 (4th ed. 2005).
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Under Neb. Rev. Stat. § 25-601(1) (Reissue 2008), Young 

could have dismissed her declaratory judgment action without 

prejudice at any time prior to its submission to the court. Had 

she done so, the resulting order of dismissal would not have 

been a decision on the merits.22 This was no doubt the reason 

Young’s lawyer asked her on the witness stand if she understood that the court’s approval of the PMA and APMA would 

result in dismissal of the declaratory judgment action with 

prejudice and that she had the option of dismissing the action 

“without the court approving these documents.” Young testified 

that she understood.

In sum, the order approving the PMA and APMA in the 

first dissolution proceeding was a final judgment on the merits entered by a court of competent jurisdiction in an action 

in which Young and Davis were parties, and it was therefore 

binding upon them in the subsequent dissolution action under 

the doctrine of res judicata. Because the first court had subject 

matter jurisdiction under the Uniform Declaratory Judgments 

Act, we need not address whether it also had subject matter 

jurisdiction under the dissolution statutes. And because we 

conclude that the judgment had preclusive effect under the doctrine of res judicata, we need not address whether the doctrine 

of judicial estoppel applies.

(b) Public Policy

Young argues that the judgment approving the PMA and 

APMA should not be given preclusive effect, because postmarital agreements are void as against public policy in 

Nebraska. This argument confuses the validity of the judgment with the validity of the underlying agreements. As we 

have noted, the judgment in the first dissolution proceeding 

was entered on the merits by a court of competent jurisdiction 

and meets all of the other requirements of res judicata as to 

Young. She therefore cannot relitigate the issues determined 

by that judgment, including the enforceability and validity of 

the PMA and APMA. Thus, even if the PMA and APMA are 

22 See Smith v. Lincoln Meadows Homeowners Assn., 267 Neb. 849, 678 

N.W.2d 726 (2004).
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242 286 NEBRASKA REPORTS

void as against public policy, an issue we do not decide, their 

void nature is inconsequential once a valid final judgment 

was entered approving them. No public policy considerations 

prevent the first judgment from having preclusive effect under 

the facts of this case.

(c) Remaining Arguments

We have considered Young’s remaining arguments in support of her claim that the judgment in the first dissolution 

proceeding should not have preclusive effect and find them to 

be without merit. We therefore find no error in the conclusion 

of the district court that the judgment in the first dissolution 

proceeding was entitled to preclusive effect and that therefore, 

the attorneys’ advice that Young accept the settlement offer in 

the second proceeding, and thus forgo further litigation of the 

issue, could not have been the proximate cause of any injury 

or damage.

3. Young’s Motions to R

After the first district judge assigned to this case had 

recused himself, Young filed a motion to recuse the judge to 

whom the case had been reassigned. She asserted that the second judge had presided over cases in which the appellees had 

appeared as attorneys. That motion was overruled. Young then 

filed a renewed and expanded motion to recuse, in which she 

alleged that the second district judge, prior to his appointment 

to the bench, had advocated for causes to which Young and a 

group she headed were opposed. That motion was overruled. 

Young later filed another renewed motion for recusal, asserting that the judge had shown hostility toward her in several 

rulings which were adverse to her position. That motion was 

overruled as well. Young assigns that these rulings constitute 

reversible error.

[16,17] Under the Nebraska Revised Code of Judicial 

Conduct, a judge must recuse himself or herself from a case 

if the judge’s impartiality might reasonably be questioned.23

23 In re Interest of Kendra M. et al., 283 Neb. 1014, 814 N.W.2d 747 (2012). 

See, also, Neb. Rev. Code of Judicial Conduct § 5-302.11(A).
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In order to demonstrate that a trial judge should have recused 

himself or herself, the moving party must demonstrate that a 

reasonable person who knew the circumstances of the case 

would question the judge’s impartiality under an objective 

standard of reasonableness, even though no actual bias or 

prejudice was shown.24

Young cites no authority in support of her argument that 

recusal is “customary and appropriate” where an attorney is 

a party to a case assigned to a judge before whom the attorney has previously appeared.25 As the U.S. Supreme Court 

has stated, “‘judicial rulings alone almost never constitute 

a valid basis for a bias or partiality motion’” directed to a 

trial judge.26 Nor can a judge’s ordinary efforts at courtroom 

administration be a basis for bias or partiality.27 We find nothing in the district judge’s rulings in this case which would be 

indicative of actual bias or prejudice necessitating recusal. The 

fact that the judge and Young took opposite sides on public 

policy issues before the judge was appointed to the bench does 

not reflect judicial bias or prejudice in a case which has no 

relationship to those public policy issues. We conclude that the 

district court did not abuse its discretion in overruling Young’s 

motions for recusal.

V. CONCLUSION

For the reasons discussed, we find no reversible error and 

therefore affirm the judgment of the district court.

Affirmed

Wright and Miller-Lerman, JJ., not participat

24 In re Interest of Kendra M. et al., supra note 23.

25 Brief for appellant at 42.

26 Huber v. Rohrig, 280 Neb. 868, 875, 791 N.W.2d 590, 598 (2010) (quoting 

Liteky v. United States, 510 U.S. 540, 114 S. Ct. 1147, 127 L. Ed. 2d 474 

(1994)).

27 Id.