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Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

RICE v. POPPE

Cite as 302 Neb. 643

Brenda R. Rice, appellant, v. Terrance A. Poppe, 

an individual, and Morrow, Poppe, Watermeier

& Lonowski, P.C., a limited liability

organization, appellees.

___ N.W.2d ___

Filed March 22, 2019. No. S-18-701.

1. Judgments: Appeal and Error. In a bench trial of a law action, a trial 

court’s factual findings have the effect of a jury verdict and will not be 

set aside on appeal unless clearly erroneous.

2 ____: ____. In reviewing a judgment awarded in a bench trial of a law 

action, an appellate court does not reweigh evidence, but considers the 

evidence in the light most favorable to the successful party and resolves 

evidentiary conflicts in favor of the successful party, who is entitled to 

every reasonable inference deducible from the evidence.

3. Malpractice: Attorney and Client: Negligence: Proof: Proximate 

Cause: Damages. To succeed in a legal malpractice claim, a plaintiff 

must ultimately 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 plaintiff.

4. Malpractice: Attorney and Client. A client cannot recover for malpractice (1) when the client failed to follow the attorney’s reasonable 

advice, (2) when the client directed the attorney’s actions in a matter 

and the attorney acted in accordance with the client’s instruction, and 

(3) when the client misrepresented material facts upon which the attorney relied.

5. Malpractice: Negligence: Proximate Cause. A plaintiff’s contributory 

negligence is a defense in a malpractice action when it contributed to the 

professional’s inability to meet the standard of care and was a proximate 

cause of the plaintiff’s injury.

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

A client’s negligence in a legal malpractice case is sometimes more 

Nebraska Supreme Court Online Library

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

05/03/2019 02:07 AM CDT
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Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

RICE v. POPPE

Cite as 302 Neb. 643

relevant to negating the proximate causation element of the claim than 

to showing that the plaintiff’s negligence was a contributing cause to the 

plaintiff’s injury.

Appeal from the District Court for Lancaster County: James

G. Kube, Judge. Affirmed.

James R. Welsh and Christopher Welsh, of Welsh & Welsh, 

P.C., L.L.O., for appellant.

Randall L. Goyette and Christopher M. Schmidt, of Baylor 

Evnen, L.L.P., for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Funke, Papik, and

Freudenberg, JJ.

Heavican, C.J.

INTRODUCTION

Terrance A. Poppe represented Brenda R. Rice (Rice) in her 

divorce from Dale Rice. Rice subsequently filed a malpractice 

action against Poppe. Poppe’s motion for summary judgment 

was initially granted, but this court reversed.1 A bench trial 

was held at which the district court found in Poppe’s favor. 

Rice appeals.

FACTUAL BACKGROUND

Rice and her husband, Dale, were divorced in 2011. Poppe 

represented Rice in the divorce, while Dale was unrepresented. 

Poppe testified that it is his practice, when he first meets with 

new clients, to ask them a series of questions about the marriage and the marital estate. Poppe testified that he would 

have asked Rice whether there was “‘any life insurance with 

any cash surrender value or any life insurance that we need to 

deal with.’” Several sheets of notepaper, which Poppe testified 

1 Rice v. Poppe, 293 Neb. 467, 881 N.W.2d 162 (2016).
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Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

RICE v. POPPE

Cite as 302 Neb. 643

were his notes from this meeting, were offered into evidence. 

Life insurance was listed in those notes under a heading 

entitled “Assets.” A “0” was next to that entry. Poppe testified 

that “[z]ero means [the client] told me no, there is no insurance 

with cash value or insurance that we need to deal with. . . . 

It means there is no life insurance with cash value or no life 

insurance that was an issue.”

Poppe further testified that his questions are intended to discover policies even if they do not have cash value, as he needs 

to know about anything that “we need to be concerned with 

or deal with.” Poppe testified that there was no doubt in his 

mind that he asked about life insurance at this initial meeting. 

According to Poppe, he and Rice met several times after the 

initial meeting and at no point did Rice mention anything about 

any life insurance policies.

Rice also testified about this meeting, indicating that she did 

not recall talking about life insurance at the initial meeting or 

subsequently. She further testified that she and Dale had a conversation about life insurance prior to the entry of the decree 

and that it was her intention to keep Dale as her beneficiary. 

Rice was not permitted to testify regarding Dale’s intention 

as to his policy, but she did testify that it was her belief that 

they each “retained right to our policies. To me that meant we 

retained the right to keep our beneficiary as well. We could do 

whatever we want. . . . We were each other’s beneficiary and 

nothing changed with that divorce decree, was our understanding — my understanding.”

Based upon his discussion with Rice, Poppe prepared a draft 

property settlement agreement. According to Rice, she went 

“back and forth to [Poppe’s] office several times” about the 

agreement, and she made several suggestions that were incorporated into the final agreement.

The decree was entered on August 8, 2011. As relevant, the 

decree included a property settlement agreement with the following provisions. Paragraph VI provided in part:
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Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

RICE v. POPPE

Cite as 302 Neb. 643

STOCKS, BANK ACCOUNTS, LIFE INSURANCE 

POLICICES [sic], PENSION PLANS AND 

RETIREMENT PLANS

[Rice] shall be awarded all interest in all pension 

plans, stocks, retirement accounts, 401(k), IRA, life 

insurance policy and checking or savings account in 

[Rice’s] name, free from any claim of [Dale]. [Dale] 

shall be awarded all interest in any pension plans, stocks, 

retirement accounts, 401(k), IRA, life insurance policy 

and checking or savings account in [Dale’s] name, free 

from any claim of [Rice].

Paragraph IX provided:

PROPERTY PROVISIONS AND SETTLEMENT OF 

PROPERTY RIGHTS OF PARTIES

It is expressly understood by and between the parties 

hereto that the provisions of this agreement relating to 

the property and liabilities of each, set aside and allocate 

to each party his or her respective portions of the properties belonging to the parties and of the liabilities of the 

parties at the date hereto; and each party acknowledges 

that the properties set aside to him or her, less the liabilities so allocated to him or her, will be in full, complete 

and final settlement, release and discharge, as between 

themselves, of all rights, claims, interests and obligations 

of each party in and to the said properties and the same 

in their entirety constitute a full, fair and equitable division and the partition of their respective rights, claims 

and interests in and to the said properties of every kind 

and nature.

And, in relevant part, paragraph X provided:

WAIVER AND RELEASE OF MARITAL RIGHTS

. . . .

(b) In consideration of the provisions of this agreement, [Rice] waives and relinquishes any and all interest 

or rights of any kind, character, or nature whatsoever, 
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RICE v. POPPE

Cite as 302 Neb. 643

including but not limited to all rights to elective share, 

homestead allowance, exempt property, and family allowance in the property of [Dale], and renounces all benefits 

which would otherwise pass to [Rice] from [Dale] by 

intestate succession or by virtue of the provisions of any 

Will executed before this Settlement Agreement which 

she, as wife, or as widow, or otherwise, has had, now 

has, or might hereafter have against [Dale], or, in the 

event of his death, as an heir at law, surviving spouse, or 

otherwise. [Rice] also waives and relinquishes any and 

all interest, present and future, in any and all property, 

real, personal, or otherwise, now owned by [Dale] or 

hereafter acquired, and including all property set aside 

for him in this agreement, it being the intention of the 

parties that this agreement shall be a full, final, and 

complete settlement of all matters in dispute between the 

parties hereto.

Rice testified that Poppe did not go through the property settlement agreement with her prior to the hearing during which 

it was entered.

About a week after the divorce decree was entered, Dale 

died. Rice made a claim for the death benefits under life 

insurance policies owned by Dale. Dale’s children from his 

first marriage challenged her right to the benefits. This court 

affirmed the district court’s finding that Rice had waived her 

beneficiary interest in the policies by the property settlement 

agreement, and accordingly concluded that Rice was not entitled to the death benefits.2

Rice sued Poppe for legal malpractice, alleging that he 

did not advise her that the property settlement agreement 

waived her interest in Dale’s life insurance policies. The district court granted Poppe’s motion for summary judgment, 

but we reversed, concluding that Poppe had not established a 

2 Rice v. Webb, 287 Neb. 712, 844 N.W.2d 290 (2014).
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Nebraska Supreme Court Advance Sheets

302 Nebraska Reports

RICE v. POPPE

Cite as 302 Neb. 643

prima facie case for which he was entitled to judgment as a 

matter of law.3

Upon remand, a bench trial was held. Rice and Poppe testified as to the factual background of the case. Each also called 

an expert. Rice offered the deposition of Lyle J. Koenig, who 

testified that Poppe did not meet the applicable standard of 

care when he included the “boilerplate” language regarding life 

insurance, when it was his belief that there was no life insurance in the marital estate. Poppe offered the testimony of John 

Ballew, who testified to the contrary; it was his opinion that 

Poppe had complied with the applicable standard of care in his 

representation of Rice.

The district court found in favor of Poppe. Rice appealed.

ASSIGNMENTS OF ERROR

Rice assigns, renumbered, that the district court erred in (1) 

holding that Rice’s failure to provide information about the 

life insurance policies and their beneficiary designations to 

Poppe was a misrepresentation that broke the causal chain of 

the legal malpractice claim and (2) finding that Rice’s expert 

testified that Poppe failed to meet the applicable standard of 

care only by failing to explain the effect of the inclusion of life 

insurance in paragraph VI of the decree, and not by failing to 

explain the effect of the waiver and relinquishment language in 

paragraphs IX and X(b).

STANDARD OF REVIEW

[1,2] In a bench trial of a law action, a trial court’s factual 

findings have the effect of a jury verdict and will not be set 

aside on appeal unless clearly erroneous.4 In reviewing a judgment awarded in a bench trial of a law action, an appellate 

court does not reweigh evidence, but considers the evidence 

3 See Rice v. Poppe, supra note 1.

4 Home Pride Foods v. Johnson, 262 Neb. 701, 634 N.W.2d 774 (2001).
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RICE v. POPPE

Cite as 302 Neb. 643

in the light most favorable to the successful party and resolves 

evidentiary conflicts in favor of the successful party, who 

is entitled to every reasonable inference deducible from 

the evidence.5

ANALYSIS

[3] To succeed in a legal malpractice claim, a plaintiff must 

ultimately 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 plaintiff.6

Rice first assigns that the district court erred in concluding 

that her failure to provide Poppe with information regarding 

her and Dale’s life insurance policies broke the causal chain 

and prevented her from sustaining her burden for legal malpractice. The district court relied on Balames v. Ginn7

 to support its conclusion.

[4] In Balames, we discussed the “role that a client’s negligence or contributory negligence plays in a legal malpractice 

case.”8 We have held that a client cannot recover for malpractice (1) when the client failed to follow the attorney’s reasonable advice, (2) when the client directed the attorney’s actions 

in a matter and the attorney acted in accordance with the client’s instruction, and (3) when the client mispresented material 

facts upon which the attorney relied.9

[5,6] But in Balames, we added to this list, noting that “a 

plaintiff’s contributory negligence is a defense in a malpractice action when it contributed to the professional’s inability 

to meet the standard of care and was a proximate cause of the 

5 Mays v. Midnight Dreams, 300 Neb. 485, 915 N.W.2d 71 (2018).

6 Rice v. Poppe, supra note 1.

7 Balames v. Ginn, 290 Neb. 682, 861 N.W.2d 684 (2015).

8 Id. at 694, 861 N.W.2d at 695.

9 Balamas v. Ginn, supra note 7.
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RICE v. POPPE

Cite as 302 Neb. 643

plaintiff’s injury.”10 And, relying on a legal malpractice treatise, we further noted that “[f]requently, a client’s negligence 

in a legal malpractice case is more relevant to negating the 

proximate causation element of the claim than to showing that 

the plaintiff’s negligence was a contributing cause to the plaintiff’s injury.”11

When the record is considered in this light, there was sufficient evidence presented at trial to support the district court’s 

finding. Rice testified that Poppe did not ask about life insurance; Poppe testified that he did. In addition, Poppe offered 

notes of his first meeting with Rice, indicating that he inquired 

about life insurance. The district court’s finding as to this issue 

effectively negates Rice’s claim as to causation—the property settlement agreement in the decree waived Rice’s right 

to Dale’s life insurance, because she did not inform Poppe 

about that life insurance so that he could properly include it in 

the decree.

Nor is there merit in a more general argument that the district court erred by finding for Poppe. While Rice highlights 

Koenig’s testimony, she fails to account for the testimony of 

Poppe’s expert, Ballew, who testified that Poppe’s conduct 

did not fall below the applicable standard of care. Our standard of review is deferential; we review for clear error and 

consider the evidence in a light most favorable to the successful party.

In this instance, the parties offered conflicting testimony 

regarding whether Poppe’s conduct fell below the applicable 

standard of care. The district court found for Poppe and, 

in doing so, found Ballew to be more persuasive. Ballew 

testified that Poppe’s actions in gathering information and 

drafting and advising Rice regarding the property settlement 

agreement were proper. Ballew further opined that not only 

10 Id. at 697, 861 N.W.2d at 696-97.

11 Id. at 698, 861 N.W.2d at 697.
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RICE v. POPPE

Cite as 302 Neb. 643

was it proper to include the so-called “boilerplate” language 

which Rice complains of, but that it was “essential,” and 

that those provisions were ubiquitous. Ballew further testified that he would not have gone “line-by-line” through the 

waiver provisions.

Because we conclude that the district court did not err in 

concluding that Poppe did not breach any duty owed to Rice, 

and further that Rice could not show that, even assuming a 

breach of duty, that Poppe’s action were the proximate cause 

of her injury, we need not address Rice’s second assignment 

of error.

There is no merit to Rice’s appeal. We affirm.

CONCLUSION

The decision of the district court is affirmed.

Affirmed.

Stacy, J., not participating.