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Decisions of the Nebraska Court of Appe

23 Nebraska Appellate Repo

SHRINER v. FRIEDMAN LAW OFFICES

Cite as 23 Neb. App. 869

Debra A. Shriner, appellant, v

Friedman Law Offices, P.C.,

and Daniel H. Friedman, appell

___ N.W.2d ___

Filed April 12, 2016. No. A-15-051.

1. Summary Judgment. Summary judgment is proper when the pleadings 

and evidence admitted at the hearing disclose no genuine issue as to any 

material fact or as to the ultimate inferences that may be drawn from 

those facts and that the moving party is entitled to judgment as a matter 

of law.

2. Summary Judgment: Appeal and Error. In reviewing a summary 

judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives 

such party the benefit of all reasonable inferences deducible from 

the evidence.

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. Judgments: Res Judicata. The doctrine of res judicata, now called 

claim preclusion, bars litigation of any claim that has been directly 

addressed or necessarily included in a former adjudication, as long as 

(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.

5. Res Judicata. Claim preclusion does not apply to permissive crossclaims that could have been raised in a former action but were not.

6. Judgments: Collateral Estoppel. Issue preclusion applies where (1) 

an identical issue was decided in a prior action, (2) the prior action 

Nebraska Supreme Court Online Library

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

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resulted in a final judgment on the merits, (3) the party against whom 

the doctrine is to be applied was a party or was in privity with a party 

to the prior action, and (4) there was an opportunity to fully and fairly 

litigate the issue in the prior action.

7. 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.

8. Estoppel. The doctrine of judicial estoppel prohibits one who has successfully and unequivocally asserted a position in a prior proceeding 

from asserting an inconsistent position in a subsequent proceeding.

9. Equity: Estoppel. The elements of equitable estoppel are, as to the 

party estopped, (1) conduct which amounts to a false representation or 

concealment of material facts, or at least which is calculated to convey 

the impression that the facts are otherwise than, and inconsistent with, 

those which the party subsequently attempts to assert; (2) the intention, 

or at least the expectation, that such conduct shall be acted upon by, or 

influence, the other party or other persons; and (3) knowledge, actual or 

constructive, of the real facts.

10. ____: ____. The elements of equitable estoppel are, as to the party 

invoking the doctrine, (1) lack of knowledge and of the means of 

knowledge of the truth as to the facts in question; (2) reliance, in good 

faith, upon the conduct or statements of the party to be estopped; and 

(3) action or inaction based thereon of such a character as to change the 

position or status of the party claiming the estoppel, to his or her injury, 

detriment, or prejudice.

11. Summary Judgment: Final Orders: Appeal and Error. Although 

the denial of a motion for summary judgment, standing alone, is not a 

final, appealable order, when adverse parties have each moved for summary judgment and the trial court has sustained one of the motions, the 

reviewing court obtains jurisdiction over both motions and may determine the controversy which is the subject of those motions or make an 

order specifying the facts which appear without substantial controversy 

and direct such further proceedings as it deems just.

12. Malpractice: Testimony. Where a mediator’s testimony is relevant to 

disproving a claim or complaint of professional misconduct or malpractice filed against a representative of a mediation party based on conduct 

occurring during a mediation, the testimony falls within an exception to 

the mediation communications privilege.
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Decisions of the Nebraska Court of Appe

23 Nebraska Appellate Repo

SHRINER v. FRIEDMAN LAW OFFICES

Cite as 23 Neb. App. 869

Appeal from the District Court for Lancaster County: 

William B. Zastera, Judge. Affirmed in part, and in par

reversed and remanded for further proceedings.

James D. Sherrets and Jared C. Olson, of Sherrets, Bruno & 

Vogt, L.L.C., for appellant.

Shawn D. Renner and Susan K. Sapp, of Cline, Williams, 

Wright, Johnson & Oldfather, L.L.P., for appellees.

Moore, Chief Judge, and Inbody and Bishop, Jud

Bishop, Judge

I. INTRODUCTION

Debra A. Shriner filed a legal malpractice action in the 

district court for Lancaster County, Nebraska, against attorney Daniel H. Friedman and his law firm, Friedman Law 

Offices, P.C., L.L.O., arising out of Friedman’s representation 

of Shriner in an underlying personal injury action filed in Hall 

County, Nebraska. The name “Friedman” is used herein to 

refer to Friedman and to Friedman Law Offices collectively as 

well as to Friedman individually. In Shriner’s legal malpractice 

action, she alleged that Friedman coerced her into accepting a 

settlement offer of $45,000 in the underlying action and that he 

breached the standard of care for an attorney by, among other 

things, failing to properly value and prosecute her claim and 

advising her to accept the settlement offer.

After Shriner and Friedman filed motions for summary judgment in the legal malpractice action, the district court entered 

summary judgment in Friedman’s favor. The court determined 

that Shriner voluntarily agreed to settle the underlying action 

and, furthermore, that she ratified the settlement agreement 

by accepting the settlement proceeds. According to the district court, Shriner could not then “claim to have been forced, 

pressured and/or coerced” into settling the underlying claim. 

Shriner timely appealed to this court.
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As we explain below, we reverse the district court’s judgment insofar as it granted Friedman’s motion for summary 

judgment, but we affirm the district court’s judgment insofar 

as it denied Shriner’s cross-motion for summary judgment. 

Because it is likely to arise on remand, we also address 

Shriner’s argument that testimony from the mediator of the 

settlement in the underlying action was privileged. We determine the testimony fell within an exception to the privilege 

and was admissible.

II. BACKGROUND

On December 29, 2006, in Grand Island, Nebraska, a 

truck driven by Randall Svoboda, an employee of Cloudburst 

Underground Sprinkler Systems, Inc. (Cloudburst), struck the 

passenger-side rear quarter panel of Shriner’s vehicle as she 

passed through an intersection. As a result of the collision, 

Shriner’s vehicle spun around, coming to rest facing the opposite direction of travel. According to Shriner, the collision 

resulted in injuries to her person, damage to her vehicle, ongoing medical expenses, and lost wages.

Following her accident, Shriner had contact with two law 

firms, Sokolove Law, LLC (Sokolove), and Underhill & 

Underhill, P.C. (Underhill), before ultimately being referred 

to Friedman for representation. In April 2010, Shriner retained 

Friedman to represent her pursuant to a contingent fee arrangement in which Friedman would receive 331

⁄3 percent of any 

recovery from Svoboda and Cloudburst. Allegedly unknown 

to Shriner was a fee-splitting arrangement among Friedman, 

Sokolove, and Underhill in which the three law firms agreed to 

share any attorney fees.

On June 14, 2010, Friedman filed suit on Shriner’s behalf 

against Svoboda and Cloudburst in the district court for 

Hall County, seeking damages arising out of the collision. 

On July 12, 2012, the parties to the personal injury action 

attended a mediation with mediator Matthew Miller. During 

the mediation, Svoboda and Cloudburst’s insurer authorized a 
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settlement offer of $45,000, which Friedman allegedly advised 

Shriner to accept.

According to Shriner’s amended complaint in her legal 

malpractice action, Friedman told her that if she did not 

accept the settlement offer, Friedman would no longer advance 

litigation costs for her case. Specifically, to proceed to trial, 

Shriner would be required to pay for deposing up to four 

medical professionals, anticipated to cost $3,000 to $5,000 

per witness. According to Shriner, although she was indigent 

and informed Friedman she desired to take the case to trial, 

Friedman persisted. As described in her amended complaint, 

Shriner “relented under the pressure and duress and ‘told . . . 

Friedman, in anger, that if that’s all [she] had to get, that’s what 

[she]’d have to get.’” Friedman then accepted the $45,000 

settlement offer on Shriner’s behalf.

Six days after the mediation, Shriner informed Friedman she 

would not sign a release or accept the proceeds of the settlement reached during the mediation. Thereafter, Friedman filed 

a motion to withdraw as Shriner’s counsel of record in the personal injury action, and Svoboda and Cloudburst filed a motion 

to enforce the settlement agreement.

On August 9, 2012, the district court for Hall County heard 

both motions. At the hearing, Shriner appeared with a new 

attorney, John Sellers, and testified in opposition to Friedman’s 

motion to withdraw. After hearing Shriner’s testimony, the 

court granted the motion to withdraw; it then turned to the 

issue of the motion to enforce the settlement agreement. Sellers 

requested an opportunity either to recall Shriner as a witness or 

to obtain her written affidavit. The court questioned whether 

Shriner’s testimony was necessary if her prior attorney had 

apparent authority to accept the settlement offer at the mediation. The court indicated that Sellers could present evidence 

but cautioned, “I think you’re kind of climbing a hill.” Sellers 

submitted no evidence, and the court granted the motion to 

enforce the settlement agreement.
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Cite as 23 Neb. App. 869

On October 15, 2012, Svoboda and Cloudburst’s insurer 

filed a complaint for interpleader and declaratory judgment in 

the district court for Hall County. Named as defendants were 

Shriner, “Herbert J. Friedman d/b/a Friedman Law Offices,” 

and two companies with alleged claims to portions of the 

settlement proceeds. The insurer sought to deposit the settlement funds of $45,000 with the court clerk for distribution 

among the defendants in exchange for an order releasing it and 

its insureds from liability in connection with Shriner’s personal 

injury claim. The insurer set forth the grounds for the various 

defendants’ claims to the settlement proceeds; in particular, the 

insurer alleged that Friedman asserted an attorney’s lien pursuant to Neb. Rev. Stat. § 7-108 (Reissue 2012).

The district court for Hall County directed the insurer 

to deposit the settlement proceeds with the court clerk and 

released Svoboda, Cloudburst, and their insurer from liability. 

Shortly thereafter, Shriner, who was represented by Sellers in 

the interpleader action, filed a “Motion to Approve Settlement 

and Final Order,” in which she alleged that the remaining parties to the interpleader action had reached an agreement regarding their claims to the settlement proceeds, which 

claims the defendants wished to resolve without further litigation. Shriner asked the court to approve disbursement of the 

settlement proceeds in the following amounts: (1) $6,666.66 

to the State of Nebraska, (2) $3,333 to one company with 

an alleged claim, (3) $10,000 to the other such company, 

(4) $12,159.49 to Friedman, (5) $1,500 to Sellers, and (6) 

$11,340.85 to Shriner.

On March 6, 2013, the district court for Hall County entered 

an order approving the agreement and ordering the settlement 

proceeds disbursed in the manner Shriner proposed. The court 

found the agreement was not unconscionable.

On December 31, 2013, Shriner commenced her legal malpractice action in the district court for Lancaster County. In 

an amended complaint filed on September 2, 2014, Shriner 

set forth much of the background outlined above and further 
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alleged that at the time of the mediation in the underlying 

personal injury action, Cloudburst’s liability was “established 

by the facts.” Shriner further alleged that at the time of the 

mediation, she had incurred medical expenses in excess of 

$67,000, with more than $100,000 in future medical expenses 

anticipated, and that two of her treating physicians had opined 

that her medical treatment was necessary as a result of the 

collision, her injuries were permanent, and she would require 

future medical treatment. Shriner alleged that despite these 

facts, Friedman coerced her into accepting the “grossly inadequate” settlement offer of $45,000.

Shriner’s amended complaint contained four counts: (1) 

professional negligence, (2) breach of contract, (3) breach 

of implied contract, and (4) fraud. In the professional negligence count, Shriner alleged Friedman breached the standard 

of care for an attorney by (i) entering into a “multi-stage 

fee-sharing agreement” with multiple law firms, (ii) failing 

to properly value and prosecute her claim, (iii) demanding 

payment of litigation costs as a prerequisite to continued 

representation, and (iv) advising her to accept the $45,000 

settlement offer.

In the counts for breach of contract and breach of implied 

contract, Shriner alleged she had either an express contract or 

an implied contract for representation in the underlying personal injury action. She alleged Friedman breached the express 

or implied contract by (i) failing to competently represent her, 

(ii) providing her with unreasonable legal advice at the time 

of the mediation, (iii) refusing to advance the costs necessary 

to proceed to trial, and (iv) demanding that Shriner advance 

litigation costs.

In the fraud count, Shriner alleged that Friedman, in order to 

secure a contract for her representation, told Shriner she would 

be responsible for costs of litigation only after a settlement or 

judgment was obtained even though Friedman knew he would 

demand that Shriner “pay costs of the litigation up front if 

[Friedman] could not achieve an easy settlement agreement.” 
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Shriner alleged that she relied on Friedman’s “false statement” 

and that she was damaged as a result.

Friedman filed an answer denying the material allegations 

of the amended complaint. As affirmative defenses, Friedman 

alleged, in pertinent part, that Shriner’s claim was barred 

under the doctrines of res judicata, collateral estoppel, equitable estoppel, judicial estoppel, waiver, release, and laches. 

In support, Friedman relied on Shriner’s failure to present any 

evidence in opposition to Svoboda and Cloudburst’s motion 

to enforce the settlement agreement in the underlying personal injury action, as well as Shriner’s agreement with the 

defendants in the interpleader action as to disbursement of the 

settlement proceeds. Friedman alleged that Shriner accepted 

the benefits of the settlement and that her position in the legal 

malpractice action was contrary to the positions she took in the 

underlying personal injury and interpleader actions.

Shortly after Friedman filed the answer and affirmative 

defenses to Shriner’s amended complaint in the legal malpractice action, Friedman filed a motion for summary judgment, 

arguing Shriner’s claim was barred under the doctrines of res 

judicata, collateral estoppel, equitable estoppel, judicial estoppel, and waiver. Friedman submitted exhibits in support of the 

motion, including (1) the deposition of Miller, the mediator of 

the settlement in the underlying action; (2) the transcript of 

the hearing on Svoboda and Cloudburst’s motion to enforce 

the settlement in the underlying action; (3) Friedman’s affidavit; (4) the retainer agreement executed between Shriner 

and Friedman; (5) the joint representation agreement executed 

among Shriner, Friedman, and Underhill; and (6) the court filings and orders from the interpleader action.

Shriner then filed a “Cross-Motion for Summary Judgment.” 

She argued that there was no genuine issue of material fact 

with respect to any of her claims and that she was entitled 

to judgment as a matter of law. In support of her motion, 

Shriner offered the following exhibits: (1) the affidavit of 

Shane Warner, an expert witness who opined Friedman violated 
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the applicable standard of care; (2) Shriner’s affidavit; (3) 

Shriner’s deposition and written discovery responses in the 

personal injury action; (4) the depositions of Kathleen Neary 

and Michael Mullin, Friedman’s expert witnesses in the legal 

malpractice action; (5) the deposition of Svoboda in the personal injury action; and (6) documents summarizing Shriner’s 

medical bills.

In opposition to Shriner’s motion for summary judgment, 

Friedman offered affidavits from Neary and Mullin summarizing their expert opinions on Shriner’s legal malpractice action. 

Both experts opined Friedman’s representation of Shriner fell 

within the applicable standard of care. We discuss additional 

details of the parties’ summary judgment exhibits as necessary 

in our analysis section below.

Before a hearing was held on the motions for summary 

judgment, Shriner filed a “Motion in Limine to Exclude 

Testimony of . . . Miller,” in which Shriner sought an order 

excluding testimony from Miller regarding his role as mediator in the underlying action. She maintained that mediation 

communications were privileged pursuant to Neb. Rev. Stat. 

§ 25-2933 (Reissue 2008) and that Miller’s testimony could 

not be considered absent an express waiver from all parties to 

the mediation.

Following a brief hearing on the motions for summary judgment at which the court received the submitted exhibits, the 

court took the matter under advisement. At the hearing, Shriner 

renewed her objection to Miller’s testimony on the basis that it 

related privileged mediation communications.

On December 26, 2014, the court entered a written opinion 

and order granting Friedman’s motion for summary judgment 

and denying Shriner’s motion for summary judgment. The 

court did not expressly address Shriner’s motion in limine 

to exclude Miller’s testimony, but in its order, the court referenced Miller’s testimony that there was no question in 

his mind that Shriner had validly authorized acceptance of 

the settlement.
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Cite as 23 Neb. App. 869

In addition to relying on Miller’s testimony, the court 

noted that in the interpleader action, Shriner “stipulated 

that she, [Friedman], and the other parties had reached an 

agreement regarding their individual claims to the settlement 

proceeds . . . and wished to resolve the matter without further litigation.” The court also noted Shriner had “accepted 

and retained the monies obtained from the settlement agreement.” Based on these considerations, the court concluded 

Shriner “voluntarily agreed” to the settlement and “ratified” 

the settlement agreement. The court ruled Shriner could not 

“claim to have been forced, pressured and/or coerced into 

settling her claim,” and it entered summary judgment in 

Friedman’s favor.

Shriner timely appealed to this court.

III. ASSIGNMENTS OF ERROR

Shriner assigns, renumbered and restated, that the district 

court erred in (1) granting Friedman’s motion for summary 

judgment, (2) denying Shriner’s motion for summary judgment, (3) relying on Miller’s privileged testimony regarding 

mediation communications, (4) finding Shriner voluntarily settled her underlying personal injury claim, and (5) not finding 

Friedman breached the standard of care.

IV. STANDARD OF REVIEW

[1,2] Summary judgment is proper when the pleadings and 

evidence admitted at the hearing disclose no genuine issue as 

to any material fact or as to the ultimate inferences that may 

be drawn from those facts and that the moving party is entitled 

to judgment as a matter of law. In reviewing a summary judgment, an appellate court views the evidence in a light most 

favorable to the party against whom the judgment is granted 

and gives such party the benefit of all reasonable inferences 

deducible from the evidence. New Tek Mfg. v. Beehner, 275 

Neb. 951, 751 N.W.2d 135 (2008).
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V. ANALYSIS

Before we address the parties’ arguments, we note the legal 

basis of the district court’s summary judgment order is less 

than clear. In the order, after discussing Shriner’s conduct in 

the underlying personal injury and interpleader actions, the 

court concluded that Shriner “voluntarily agreed” to the settlement and that she “ratified” the settlement agreement. The 

court then ruled Shriner could not “claim to have been forced, 

pressured and/or coerced into settling her claim” and entered 

summary judgment in Friedman’s favor. The court cited no 

legal authority and provided no explanation for why Shriner’s 

acceptance or ratification of the settlement or settlement agreement barred her legal malpractice cause of action against 

Friedman. As will be discussed next, the law does not bar such 

a cause simply because a client has entered into a settlement 

agreement and a court orders it into effect.

[3] The Nebraska Supreme Court has held, “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.” Wolski v. Wandel, 275 

Neb. 266, 271, 746 N.W.2d 143, 148-49 (2008). This is true 

even where a court has approved the settlement agreement. 

Bruning v. Law Offices of Ronald J. Palagi, 250 Neb. 677, 

551 N.W.2d 266 (1996). In Bruning, the plaintiff entered into 

a workers’ compensation lump-sum settlement agreement and 

executed a release of claims. The settlement was approved by 

the compensation court, as well as a district court. The plaintiff subsequently commenced an action against his workers’ 

compensation lawyers for professional negligence on several 

different grounds, including obtaining a settlement that was 

inadequate. The defendants in that case argued they were 

entitled to judgment as a matter of law because the execution 

of the settlement and release in the underlying action barred 

the professional negligence action. The Nebraska Supreme 

Court disagreed, setting forth the legal principle above that a 
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client is not barred from bringing a malpractice action simply 

because he agreed to a settlement. Id.

Applying the legal principles set forth above, neither 

Shriner’s settlement of her personal injury claim nor the ruling 

by the district court for Hall County that the settlement agreement was enforceable bars Shriner’s legal malpractice action 

against Friedman.

However, this case involves an added twist, the interpleader 

action. If there is a basis to affirm the district court’s summary 

judgment order, it lies somewhere in this procedural wrinkle. 

In light of this circumstance, we address the parties’ arguments 

in reverse order. We first address Friedman’s arguments that 

Shriner is legally or equitably barred from pursuing her legal 

malpractice claim. If Friedman is correct, then we may affirm 

the district court’s entry of summary judgment in Friedman’s 

favor, even if its reasoning may have been wrong or unclear. 

See Swift v. Dairyland Ins. Co., 250 Neb. 31, 35, 547 N.W.2d 

147, 150 (1996) (“[a] proper result will not be reversed merely 

because it was reached for the wrong reasons”).

1. Friedman’s Motion 

Summary Judgme

Friedman argues summary judgment in Friedman’s favor 

was proper because Shriner’s legal malpractice claim is 

barred under the doctrines of res judicata, collateral estoppel, 

judicial estoppel, and equitable estoppel. Although Friedman 

also raised the issue of waiver in moving for summary judgment in the district court, Friedman has not raised this issue 

on appeal.

(a) Res Judicata or 

Claim Preclusion

[4] The doctrine of res judicata, now called claim preclusion, bars litigation of any claim that has been directly 

addressed or necessarily included in a former adjudication, as 

long as (1) the former judgment was rendered by a court of 

competent jurisdiction, (2) the former judgment was a final 
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judgment, (3) the former judgment was on the merits, and 

(4) the same parties or their privies were involved in both 

actions. See Hara v. Reichert, 287 Neb. 577, 843 N.W.2d 812 

(2014). Claim preclusion bars litigation not only of those matters actually litigated, but also of matters which could have 

been litigated in the former proceeding. See id. Generally, 

judgments entered by agreement or consent are treated as 

final judgments on the merits for purposes of claim preclusion. See Blazek v. City of Omaha, 232 Neb. 562, 441 N.W.2d 

205 (1989).

Friedman contends Shriner’s legal malpractice action is 

barred under the doctrine of claim preclusion because (1) the 

district court for Hall County had jurisdiction over the interpleader action, (2) Shriner and Friedman were parties to the 

interpleader action, (3) the parties to the interpleader action 

agreed to entry of an order that constituted a final judgment 

on the merits, and (4) “the issues raised by Shriner’s professional negligence claims, breach of contract claims, and fraud 

claims . . . could have been raised in the Interpleader Action.” 

Brief for appellees at 26.

Shriner responds that the interpleader action was not the 

proper forum to litigate her legal malpractice claims. She contends that a party to an action in Nebraska is not required to 

plead a counterclaim or cross-claim and that therefore, she is 

not barred from pursuing her legal malpractice action.

Because Shriner and Friedman (actually, “Herbert J. 

Friedman d/b/a Friedman Law Offices,” presumably in privity 

with Friedman) were codefendants in the interpleader action, 

if Shriner had raised her legal malpractice claims in the interpleader action, it would have been by cross-claim. Under Neb. 

Ct. R. Pldg. § 6-1113(g), a cross-claim “may” be filed by one 

party against a coparty to an action if the cross-claim (1) arises 

“out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein” 

or (2) relates “to any property that is the subject matter of the 

original action.”
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As the parties’ arguments suggest, if Shriner could have 

filed a cross-claim alleging legal malpractice against Friedman 

in the interpleader action, then a conflict arises between the 

permissive cross-claim rule embodied in § 6-1113(g) and the 

doctrine of claim preclusion. Stated another way, if Shriner 

could have filed a cross-claim against Friedman in the interpleader action but failed to do so, we must decide whether 

claim preclusion bars her subsequent legal malpractice action. 

The first step is to determine whether Shriner could have filed 

a cross-claim against Friedman in the interpleader action.

The basic purpose of interpleader is to allow adverse claimants to litigate between or among themselves their conflicting rights or claims to property or a fund, without involving 

the stakeholder, who disclaims any interest in the property 

or fund. See Ehlers v. Perry, 242 Neb. 208, 494 N.W.2d 325 

(1993). In the insurer’s interpleader action in which Shriner 

and Friedman were involved, the fund was the $45,000 in 

settlement proceeds. Friedman’s claim to a portion of the proceeds took the form of the attorney’s lien Friedman asserted 

pursuant to § 7-108. To enforce the attorney’s lien, Friedman 

was required to establish the existence and terms of any fee 

contract, the making of any disclosures to the client required 

to render a contract enforceable, and the extent and value of 

Friedman’s professional services. See Hauptman, O’Brien v. 

Turco, 273 Neb. 924, 735 N.W.2d 368 (2007). Evidence of 

the extent and value of an attorney’s professional services is 

necessary for a court to determine the reasonableness of the 

attorney fees. Id. “[A]n attorney fee computed pursuant to 

a contingent fee agreement is subject to the same standard 

of reasonableness as any other attorney fee.” Id. at 931, 735 

N.W.2d at 374.

In light of the elements Friedman was required to prove 

to enforce the attorney’s lien, including the extent and value 

of Friedman’s professional services, Shriner could have filed 

a cross-claim against Friedman alleging legal malpractice. 

The transaction or occurrence that was the subject matter 
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of Friedman’s attorney’s lien was Friedman’s provision of 

professional services to Shriner in the personal injury action. 

The claims Shriner asserts in her legal malpractice action 

arose out of that same transaction or occurrence. Although 

we have not located a Nebraska case involving this procedure, it has been done elsewhere. See Gilbert v. Montlick & 

Associates, P.C., 248 Ga. App. 535, 546 S.E.2d 895 (2001) 

(former client filed cross-claim for legal malpractice against 

former attorney when attorney asserted attorney’s lien in 

interpleader action).

Because we conclude Shriner could have filed a cross-claim 

against Friedman in the interpleader action, we must now 

decide whether claim preclusion bars her legal malpractice 

action. We have not located any Nebraska case addressing this 

issue; therefore, we look to out-of-state cases for guidance.

Although there is limited contrary authority, see, e.g., 

Citizens Exchange Bank of Pearson v. Kirkland, 256 Ga. 71, 

344 S.E.2d 409 (1986), a significant number of states have 

declined to apply the doctrine of claim preclusion to permissive cross-claims that were not asserted in a prior action. See, 

Israel v. Farmers Mut. Ins. Ass’n of Iowa, 339 N.W.2d 143 

(Iowa 1983); Houlihan v. Fimon, 454 N.W.2d 633 (Minn. 

App. 1990); Hemme v. Bharti, 183 S.W.3d 593 (Mo. 2006);

Executive Mgmt. v. Ticor Title Ins. Co., 963 P.2d 465 (Nev. 

1998); Glover v. Krambeck, 727 N.W.2d 801 (S.D. 2007); 

State and County Mut. Fire Ins. v. Miller, 52 S.W.3d 693 

(Tex. 2001); Krikava v. Webber, 43 Wash. App. 217, 716 P.2d 

916 (1986); Wisconsin Public Service v. Arby Const., 798 

N.W.2d 715 (Wis. App. 2011). Federal courts applying Fed. 

R. Civ. P. 13(g), which is nearly identical to § 6-1113(g), have 

likewise held that a party to an action having a claim in the 

nature of a cross-claim has the option to pursue it in a later 

action. See, Peterson v. Watt, 666 F.2d 361 (9th Cir. 1982); 

Augustin v. Mughal, 521 F.2d 1215 (8th Cir. 1975). See, also, 

6 Charles Alan Wright & Arthur R. Miller, Federal Practice 

and Procedure § 1431 at 275-76 (3d ed. 2010) (“[a] party 
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who decides not to bring a claim under Rule 13(g) will not be 

barred by res judicata, waiver, or estoppel from asserting it in 

a later action”).

[5] We agree with the approach adopted by a number of 

states and federal courts declining to apply claim preclusion 

to permissive cross-claims not asserted in a prior action. Part 

of the rationale for such an approach is that the contrary rule 

would, in essence, render otherwise “permissive” cross-claims 

“mandatory.” See Houlihan, supra. Thus, because a contrary 

rule would effectively abolish the permissive cross-claim rule 

embodied in § 6-1113(g), we conclude that claim preclusion 

does not apply to permissive cross-claims that could have been 

raised in a former action but were not. Therefore, claim preclusion does not bar Shriner’s legal malpractice action.

(b) Collateral Estoppel or 

Issue Preclusion

[6] The doctrine of collateral estoppel, now called issue 

preclusion, bars relitigation of a finally determined issue that a 

party had a prior opportunity to fully and fairly litigate. Hara v. 

Reichert, 287 Neb. 577, 843 N.W.2d 812 (2014). Issue preclusion applies where (1) an identical issue was decided in a prior 

action, (2) the prior action resulted in a final judgment on the 

merits, (3) the party against whom the doctrine is to be applied 

was a party or was in privity with a party to the prior action, 

and (4) there was an opportunity to fully and fairly litigate the 

issue in the prior action. Id. Issue preclusion applies only to 

issues actually litigated. Id.

The only pertinent issues actually litigated in the underlying 

personal injury and interpleader actions were (1) the enforceability of the settlement agreement among Shriner, Svoboda, 

and Cloudburst and (2) the enforceability of Friedman’s attorney’s lien against a portion of the settlement proceeds. Because 

Shriner was a party to the personal injury and interpleader 

actions and had the opportunity to fully and fairly litigate 

these two issues, the doctrine of issue preclusion bars her from 
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relitigating them. Thus, Shriner cannot now argue that the settlement agreement reached in the mediation was unenforceable 

or that Friedman was not entitled to the attorney fees received 

as part of the judgment in the interpleader action.

[7] Otherwise, however, the issues Shriner raises in her legal 

malpractice claims were not litigated in either the personal 

injury action or the interpleader action. 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. Gallner v. Larson, 291 

Neb. 205, 865 N.W.2d 95 (2015). With the possible exception of Friedman’s employment as Shriner’s attorney, which is 

undisputed, the district court in the underlying actions was not 

called upon to address any of these issues.

Friedman’s reliance on Woodward v. Andersen, 261 Neb. 

980, 627 N.W.2d 742 (2001), is misplaced. In Woodward, during a prior divorce proceeding, a husband and wife entered 

into a property settlement agreement that, among other things, 

distributed the shares in a closely held corporation between 

the parties. The parties also executed a shareholder agreement, 

which was incorporated into the divorce decree, providing 

that the wife was not indebted to the corporation and that the 

corporation had no claims against her. After the divorce decree 

became final, the husband sued his former wife for an accounting, a return of funds to the corporation, and dissolution of the 

corporation. The district court determined that res judicata or 

collateral estoppel barred the husband from asserting claims 

based on actions taken by the wife prior to the divorce, and the 

Nebraska Supreme Court affirmed. Id.

Relying on the doctrine of collateral estoppel, the Nebraska 

Supreme Court reasoned that the corporation had been marital property and that “[in] order to equitably distribute the 

property, a necessary determination involved the value of 

the corporation.” Id. at 988, 627 N.W.2d at 749. The court 
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reasoned that “[a]ny claim that [the husband] or the corporation had against [the wife] at the time of the divorce would 

affect the valuation of the corporation, bringing directly into 

issue whether [the wife] improperly withdrew money from the 

corporation.” Id. at 988, 627 N.W.2d at 749-50. Based on this 

reasoning, the court concluded the husband was collaterally 

estopped from relitigating issues concerning the wife’s withdrawals from the corporation prior to the divorce. Id.

In the present case, no issue in the underlying personal 

injury or interpleader actions required the court to address, as 

a “necessary determination,” the issues material to Shriner’s 

legal malpractice action. See id. at 988, 627 N.W.2d at 749. 

Therefore, the doctrine of issue preclusion does not apply to 

Shriner’s legal malpractice action, with the exception of the 

two issues noted above: (1) the enforceability of the settlement 

agreement in the personal injury action and (2) Friedman’s 

entitlement to the fees obtained as part of the judgment in the 

interpleader action.

We must clarify, however, that simply because Shriner is 

precluded from relitigating the enforceability of the settlement 

agreement, it does not mean she is precluded from arguing 

Friedman breached the standard of care for an attorney by 

advising her to accept, or by pressuring her into accepting, 

the $45,000 settlement offer. See Wolski v. Wandel, 275 Neb. 

266, 271, 746 N.W.2d 143, 148-49 (2008) (“[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”).

(c) Judicial Estoppel

[8] The doctrine of judicial estoppel prohibits one who 

has successfully and unequivocally asserted a position in a 

prior proceeding from asserting an inconsistent position in a 

subsequent proceeding. See Burns v. Nielsen, 273 Neb. 724, 

732 N.W.2d 640 (2007). The intent behind the doctrine is to 
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prevent parties from gaining an advantage by taking one position in a proceeding and then switching to a different position 

when convenient in a later proceeding. Cleaver-Brooks, Inc. v. 

Twin City Fire Ins. Co., 291 Neb. 278, 865 N.W.2d 105 (2015). 

For the doctrine to apply, the court in the prior proceeding 

must have accepted the inconsistent position; otherwise, no 

risk of inconsistent results exists. Burns, supra. The doctrine 

is to be applied with caution so as to avoid impinging on the 

truth-seeking function of the court, because the doctrine precludes a contradictory position without examining the truth of 

either statement. Cleaver-Brooks, Inc., supra.

Friedman maintains that the doctrine of judicial estoppel 

applies because Shriner took positions in the underlying personal injury and interpleader actions that are inconsistent with 

the position she is taking in her legal malpractice action. 

Friedman identifies the prior inconsistent positions as follows: 

(1) Shriner offered no evidence in opposition to Svoboda and 

Cloudburst’s motion to enforce the settlement agreement, (2) 

Shriner did not deny the allegations of the insurer’s complaint 

in the interpleader action, (3) Shriner did not oppose the 

insurer’s request for a broad release of it and its insureds from 

liability arising from the accident, and (4) Shriner stipulated to 

a disbursement of the settlement proceeds.

Friedman has not persuaded us that judicial estoppel applies 

under these circumstances. Regarding Shriner’s failure to offer 

evidence in opposition to the motion to enforce the settlement agreement, we note that Shriner’s attorney at the time 

requested an opportunity to present evidence but was discouraged by the district court from doing so. This conduct did not 

qualify as “successfully and unequivocally” asserting a position in a prior proceeding. See Burns, 273 Neb. at 734, 732 

N.W.2d at 650. The same is true with respect to Shriner’s failure to deny the insurer’s allegations in the interpleader action 

and her failure to object to the insurer’s request for a release 

of liability; a failure to object does not qualify as “successfully and unequivocally” asserting a position. See id. Accord 
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Melcher v. Bank of Madison, 248 Neb. 793, 539 N.W.2d 837 

(1995) (declining to apply judicial estoppel to party’s failure 

to object to his son’s listing of tractor as one of his assets in 

prior bankruptcy proceeding).

Similarly, Shriner’s stipulation to the disbursement of 

the settlement proceeds in the interpleader action does not 

warrant invoking judicial estoppel. In Vowers & Sons, Inc. 

v. Strasheim, 254 Neb. 506, 576 N.W.2d 817 (1998), the 

Nebraska Supreme Court held that judicial estoppel did not 

apply to a party who settled a negligence action against his 

former real estate broker and subsequently pursued an action 

against a buyer for breach of a contract to purchase real estate. 

Although the negligence action required the party to prove the 

unenforceability of the purchase contract, while the breach of 

contract action required the party to prove its enforceability, 

the Nebraska Supreme Court held that the settlement of the 

negligence action did not result in “judicial acceptance of the 

claim that [the real estate broker] was negligent . . . or that the 

court made any adjudication on the merits of such claim.” Id. 

at 514, 576 N.W.2d at 824.

Like the settlement of the negligence action in Vowers & 

Sons, 254 Neb. at 514, 576 N.W.2d at 824, Shriner’s agreement 

in the interpleader action as to how the settlement proceeds 

should be disbursed did not result in “judicial acceptance” 

of any position that is inconsistent with her position in the 

present action. In approving the agreement in the interpleader 

action, the district court for Hall County simply found it was 

not unconscionable; the court did not make any finding regarding the quality of Friedman’s representation of Shriner in the 

personal injury action. Thus, judicial estoppel does not bar 

Shriner’s legal malpractice action.

(d) Equitable Estoppel

[9] The elements of equitable estoppel are, as to the party 

estopped, (1) conduct which amounts to a false representation 

or concealment of material facts, or at least which is calculated 
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to convey the impression that the facts are otherwise than, and 

inconsistent with, those which the party subsequently attempts 

to assert; (2) the intention, or at least the expectation, that such 

conduct shall be acted upon by, or influence, the other party or 

other persons; and (3) knowledge, actual or constructive, of the 

real facts. Farmington Woods Homeowners Assn. v. Wolf, 284 

Neb. 280, 817 N.W.2d 758 (2012).

[10] As to the other party, the elements are (1) lack of 

knowledge and of the means of knowledge of the truth as to 

the facts in question; (2) reliance, in good faith, upon the conduct or statements of the party to be estopped; and (3) action 

or inaction based thereon of such a character as to change the 

position or status of the party claiming the estoppel, to his or 

her injury, detriment, or prejudice. Id.

In support of Friedman’s position that equitable estoppel 

applies to Shriner’s legal malpractice action, Friedman contends Shriner’s “silence” in the underlying personal injury 

and interpleader actions “precluded [Friedman] from having a 

chance to address [Shriner’s] claims at a times [sic] they were 

ripe.” Brief for appellees at 35. Friedman contends:

If Shriner had testified that she had not voluntarily 

accepted the settlement offer, claimed that Friedman settled her claims without her valid authority, claimed that 

Friedman pressured, forced, or coerced her into settling 

her claims, claimed that [Friedman] had committed professional negligence, breach of contract, or fraud, or 

claimed that [Friedman] had otherwise acted improperly 

in any way, then [Friedman] would have vigorously disputed such claims in the Interpleader Action.

Id. at 36. Friedman claims prejudice insofar as Friedman is 

“now forced to defend this professional malpractice action in 

which Shriner is taking positions contrary to the positions she 

took” in the underlying actions. Id.

We disagree that equitable estoppel applies under these 

circumstances. With regard to Shriner’s failure to present evidence at the hearing on the motion to enforce the settlement 
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agreement in the personal injury action, we noted above that the 

district court discouraged Shriner from doing so. Regardless, 

moments before the hearing on the motion to enforce the settlement agreement, Shriner testified at the hearing on Friedman’s 

motion to withdraw as her attorney. Shriner testified that during 

the mediation, she “told . . . Friedman, in anger, that if that’s 

all [she] had to get, that’s what [she]’d have to get. Because he 

was forcing [her] into taking the claim [sic].” Shriner further 

testified that Friedman told her “at least twice that he had to 

have extra money to go ahead and take [her case] to court.” In 

response, Friedman argued that he sought to withdraw because 

he could not ethically present to the court Shriner’s argument 

that “there wasn’t a mediated settlement.”

Given Shriner’s testimony at the hearing on Friedman’s 

motion to withdraw, and Friedman’s reasons for withdrawing as Shriner’s attorney, Friedman’s claim now that he was 

unaware of Shriner’s belief that he pressured or coerced her 

into settling the personal injury action is not persuasive. Thus, 

the requirement that the party claiming equitable estoppel lack 

knowledge of the true facts is not present.

With respect to Shriner’s conduct in the interpleader action, 

as we discussed above, Shriner was not required to file a 

cross-claim against Friedman in that action. That Shriner 

chose not to file a cross-claim was not “a false representation 

or concealment of material facts.” See Farmington Woods 

Homeowners Assn. v. Wolf, 284 Neb. 280, 287, 817 N.W.2d 

758, 766 (2012). In addition, that Friedman must defend 

against the present legal malpractice action instead of defending against a cross-claim in the interpleader action does not 

qualify as a change of position to Friedman’s injury, detriment, or prejudice.

(e) Conclusion as to Summary Judgment 

in Friedman’s Favor

Because we have determined that Shriner’s legal malpractice 

action is not barred under the doctrines of claim preclusion, 
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issue preclusion, judicial estoppel, or equitable estoppel, we 

conclude that summary judgment in Friedman’s favor was 

improper. We reverse the district court’s judgment insofar as it 

granted Friedman’s motion for summary judgment.

We note Friedman further argues that summary judgment in 

Friedman’s favor was proper because (1) Nebraska law prohibits a legal malpractice plaintiff from maintaining separate 

claims for breach of contract, breach of implied contract, and 

fraud; (2) the existence of an express contract bars Shriner’s 

claim for breach of implied contract; and (3) Shriner failed to 

present any evidence to support her fraud claim. However, the 

record before us does not reflect that Friedman raised any of 

these issues before the district court, so we decline to address 

them. See First Express Servs. Group v. Easter, 286 Neb. 912, 

923, 840 N.W.2d 465, 473 (2013) (“[w]hen a party raises an 

issue for the first time on appeal, we will disregard it because 

a lower court cannot commit error in resolving an issue never 

presented and submitted to it for disposition”).

2. Shriner’s Motion f

Summary Judgme

[11] Although the denial of a motion for summary judgment, 

standing alone, is not a final, appealable order, when adverse 

parties have each moved for summary judgment and the trial 

court has sustained one of the motions, the reviewing court 

obtains jurisdiction over both motions and may determine the 

controversy which is the subject of those motions or make an 

order specifying the facts which appear without substantial 

controversy and direct such further proceedings as it deems 

just. Vowers & Sons, Inc. v. Strasheim, 254 Neb. 506, 576 

N.W.2d 817 (1998). Thus, we have jurisdiction to review the 

judgment of the district court in its entirety. Id.

In Shriner’s argument that the district court erred in not 

granting her motion for summary judgment, she contends 

the evidence shows “beyond any question of material fact” 

that Friedman breached the standard of care for an attorney. 
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Brief for appellant at 19. She identifies the breaches as 

(1) Friedman’s failure to adequately investigate her personal 

injury claim, (2) Friedman’s negligence in advising her to 

accept the inadequate settlement offer without properly advising her of the alternatives, (3) Friedman’s execution of the 

unethical fee-sharing agreement with Sokolove and Underhill, 

and (4) Friedman’s coercion of Shriner into accepting the 

settlement offer. Shriner further contends Friedman’s refusal 

to continue advancing litigation costs constituted a breach 

of contract, a breach of implied contract, or a fraudulent 

misrepresentation.

We need not engage in a detailed recitation of the evidence 

to reject Shriner’s contention that she is entitled to summary 

judgment on these issues. Each of the issues is a factual one 

on which the parties presented conflicting expert opinions. See 

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

(2013) (“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”). 

Generally, a conflict of expert testimony regarding an issue 

of fact establishes a genuine issue of material fact which precludes summary judgment. Guinn, supra.

We need only briefly summarize the experts’ affidavits to 

establish the existence of a genuine issue of material fact. In 

support of her motion for summary judgment, Shriner submitted Warner’s affidavit in which he opined that Friedman 

breached the applicable standard of care by failing to properly 

value Shriner’s claim, failing to conduct adequate discovery 

and investigation, demanding that Shriner pay the costs of 

litigation if she rejected the settlement offer, failing to advise 

Shriner of a potential conflict of interest, and advising her 

to accept the settlement offer “seemingly because he had not 

appropriately prepared her case for trial.”

In opposition to Shriner’s motion for summary judgment, 

Friedman submitted the affidavits of Neary and Mullin, both 

of whom opined that Friedman did not breach the applicable 
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standard of care. In Mullin’s affidavit, he noted that Shriner 

executed a joint representation agreement acknowledging 

the involvement of all three law firms and the cost-sharing 

arrangement among them; that in the retainer agreement 

Shriner executed with Friedman, she agreed to “‘pay all 

necessary costs and expenses incident’” to Friedman’s representation of her; and that at the time of the mediation, 

there were a number of weaknesses in Shriner’s personal 

injury suit, including her preexisting injuries from a prior 

car accident and an independent medical examiner’s inability 

to make objective findings to substantiate her complaints of 

pain. In Neary’s affidavit, she opined that Friedman properly 

disclosed the fee-sharing arrangement to Shriner, properly 

investigated Shriner’s personal injury claim, properly advised 

Shriner during the mediation, and reasonably and appropriately decided to cease advancing litigation costs following 

the mediation.

In light of the conflicting expert opinions on the material 

issues raised in Shriner’s legal malpractice action, we conclude the district court properly denied Shriner’s motion for 

summary judgment. Accordingly, we affirm the district court’s 

judgment insofar as it denied Shriner’s motion.

3. Application of Mediat

Communications Privile

Although we have determined that summary judgment was 

not proper and this cause must be remanded for further proceedings, we next address the applicability of the mediation 

communications privilege, because the issue is likely to arise 

on remand. See Combined Insurance v. Shurter, 258 Neb. 958, 

607 N.W.2d 492 (2000). Shriner contends the testimony of 

mediator Miller was privileged pursuant to § 25-2933 because 

it recounted mediation communications.

The Uniform Mediation Act, Neb. Rev. Stat. § 25-2930 

et seq. (Reissue 2008), establishes a privilege for mediation 

communications, which generally are not subject to discovery 
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or admissible in evidence in a proceeding. See § 25-2933. 

Under the act, mediation communications are privileged unless 

an exception applies, § 25-2935; the privilege is waived, 

§ 25-2934(a); or a person is precluded from asserting the privilege, § 25-2934(b) or (c). Shriner and Friedman do not dispute that Miller’s deposition testimony recounted “[m]ediation 

communication[s]” as defined by the act, see § 25-2931(2), 

or that this action qualifies as a “[p]roceeding” as defined 

by the act, see § 25-2931(7). Likewise, there is no dispute 

that Shriner, as a mediation party, is permitted to prevent any 

other person from disclosing a mediation communication. See 

§ 25-2933(b)(1).

In response to Shriner’s contention that Miller’s testimony 

is privileged, Friedman argues the testimony falls within the 

exception contained in § 25-2935(a), which provides:

There is no privilege under section 25-2933 for a mediation communication that is:

. . . .

(6) except as otherwise provided in subsection (c) of 

this section, sought or offered to prove or disprove a 

claim or complaint of professional misconduct or malpractice filed against a mediation party, nonparty participant, or representative of a party based on conduct occurring during a mediation[.]

Subsection (c) of § 25-2935 provides that “[a] mediator may 

not be compelled to provide evidence of a mediation communication referred to in subdivision (a)(6) . . . of this section.” 

Shriner does not specifically address the applicability of the 

exception contained in § 25-2935(a)(6) in her reply brief.

We agree with Friedman that Miller’s deposition testimony 

falls within the exception contained in § 25-2935(a)(6). In her 

amended complaint, Shriner alleged that during the mediation, Friedman advised her to accept the $45,000 settlement 

offer. She further alleged Friedman told her that if she did not 

accept the settlement offer, Friedman would no longer advance 

litigation costs for her case. According to Shriner, although 
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she was indigent and informed Friedman that she desired to 

take the case to trial, Friedman persisted, demanding that she 

either accept the offer or pay the costs necessary to proceed 

to trial. Shriner alleged that she “relented under the pressure 

and duress and ‘told . . . Friedman, in anger, that if that’s all 

[she] had to get, that’s what [she]’d have to get.’” Based upon 

these allegations, Shriner alleged that Friedman breached the 

applicable standard of care by demanding that she pay litigation costs to proceed to trial and by advising her to accept the 

settlement offer.

Miller’s deposition testimony consisted primarily of a 

description of his interaction with Shriner and Friedman 

during the mediation with respect to the $45,000 settlement 

offer. Miller observed that Shriner and Friedman were both 

disappointed with the offer. Miller recalled that Friedman 

advised Shriner “there was a real chance that they could get 

less than [$45,000] if they tried the case” and recalled that 

it was Friedman’s opinion Shriner should accept the offer. 

Miller also recalled that Friedman told Shriner she would 

have to pay the costs of the physicians’ depositions if she 

wished to proceed to trial. Miller testified that Shriner left 

the conference room and made a telephone call, then returned 

and said she would accept the offer. According to Miller, she 

was not happy but affirmatively agreed to accept the settlement offer.

[12] Miller’s testimony is relevant to disproving “a claim 

or complaint of professional misconduct or malpractice 

filed against a . . . representative of a party based on conduct occurring during a mediation.” See § 25-2935(a)(6). 

Specifically, Friedman seeks to use Miller’s testimony to 

disprove Shriner’s allegations that Friedman committed legal 

malpractice by coercing her into accepting the settlement 

offer and by improperly advising her during the mediation. 

Therefore, Miller’s testimony falls within the exception contained in § 25-2935(a)(6). If Miller’s testimony is offered on 

remand, caution will be required, since only the portion of a 
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mediation communication necessary for the application of the 

exception may be admitted. See § 25-2935(d).

Shriner further argues that Miller’s testimony lacked foundation and was prejudicial. The applicability of these evidentiary objections will depend upon Miller’s specific testimony 

on remand, so we decline to address them.

VI. CONCLUSION

For the foregoing reasons, we reverse the judgment of the 

district court for Lancaster County insofar as it entered summary judgment in Friedman’s favor; we affirm the judgment 

insofar as it denied Shriner’s motion for summary judgment; 

and we remand the cause for further proceedings.

 Affirmed in part, and in part revers

remanded for further proceedin