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Cite as 312 Neb. 208

Stuart Kozal, doing business as Jumping 

Eagle Inn et al., appellants, v. 

Andrew W. Snyder and Chaloupka, 

Holyoke, Snyder, Chaloupka & 

Longoria P.C. L.L.O., appellees.

___ N.W.2d ___

Filed August 12, 2022. No. S-21-377.

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 that there is no genuine issue as to any material facts 

or as to the ultimate inferences that may be drawn from the facts and 

that the moving party is entitled to judgment as a matter of law.

2. ____: ____. In reviewing the grant of a motion for summary judgment, 

an appellate court views the evidence in the light most favorable to the 

party against whom the judgment was granted, giving that party the 

benefit of all reasonable inferences deducible from the evidence.

3. Judgments: Appeal and Error. When reviewing questions of law, an 

appellate court resolves the questions independently of the lower court’s 

conclusion.

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

Cause: Damages. To prevail on a claim for legal malpractice, a plaintiff 

must prove (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 or general rule regarding an attorney’s 

reasonable duty to his or her client is that the attorney, by accepting 

employment to give legal advice or to render other legal services, 

impliedly agrees to exercise such skill, diligence, and knowledge as that 

commonly possessed by attorneys acting in similar circumstances.

6. Attorney and Client. To the extent there is an issue as to what the law 

was and whether the attorney correctly advised on such law is a question 

Nebraska Supreme Court Online Library

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

09/30/2022 01:05 AM CDT
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of law for the court. If the court decides that an attorney’s conduct or 

advice did not comport with the substance of the law at the time it was 

given, then whether the attorney’s specific conduct in that particular 

case fell below what the attorney’s specific conduct should have been is 

a question of fact.

7. Attorneys at Law: Liability: Appeal and Error. An attorney is not 

liable for an error in judgment on a point of law which has not been 

settled by an appellate court and on which reasonable doubt may be 

entertained by well‐informed lawyers, because an attorney has no duty

to accurately predict the future course of unsettled law.

8. Statutes: Appeal and Error. An appellate court will not resort to 

interpretation to ascertain the meaning of statutory words that are plain, 

direct, and unambiguous.

9. Statutes: Legislature: Intent. When a statutory term is reasonably considered ambiguous, a court may examine the legislative history of the 

act in question to ascertain the intent of the Legislature.

10. Appeal and Error. An appellate court is not obligated to engage in an 

analysis that is not needed to adjudicate the controversy before it.

11. Attorney and Client. Attorneys cannot be placed in the position of 

having to accept direction from clients on intricate interpretations of 

the correct or current state of the law. The attorney, not the client, is 

the individual trained to interpret the law. An attorney should not be 

required to compromise a reasoned judgment by having to factor into 

the judgment the client’s reasoning on a fine point of law.

12. Summary Judgment. In the summary judgment context, a fact is material only if it would affect the outcome of the case.

13. Malpractice. Statements or admissions characterized as mistakes or 

errors do not necessarily mean that a standard of care has been violated.

Appeal from the District Court for Sheridan County: Travis 

P. O’Gorman, Judge. Affirmed.

Jason M. Bruno, Diana J. Vogt, Robert S. Sherrets, and 

Thomas G. Schumacher, of Sherrets, Bruno & Vogt, L.L.C., 

for appellants.

Steven W. Olsen and Amy N. Leininger, of Simmons Olsen 

Law Firm, P.C., L.L.O., for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

and Papik, JJ.
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Heavican, C.J.

I. INTRODUCTION

Appellants, various liquor stores in Whiteclay, Nebraska, 

sought to renew multiple liquor licenses in 2017. The cause 

was eventually appealed to this court, where we determined 

that because citizen objectors were not named as parties to 

the appeal from the decision of the Nebraska Liquor Control 

Commission (NLCC), we did not have jurisdiction to hear 

the appeal.

Appellants pursued a legal malpractice action against their 

counsel, appellees. The district court granted appellees’ motion 

for summary judgment, stating that appellees did not breach 

their duty of care. Appellants appealed the district court’s 

decision. This court granted appellants’ petition to bypass 

the Nebraska Court of Appeals and moved this appeal to our 

docket. We affirm.

II. FACTUAL BACKGROUND

Stuart Kozal, doing business as Jumping Eagle Inn; 

Arrowhead Inn, Inc., doing business as Arrowhead Inn; Jason 

Schwarting; Clay Brehmer; Daniel Brehmer, doing business 

as State Line Liquor; Douglas Sanford, Steve Sanford, and 

Sanford Holdings, L.L.C., doing business as D & S Pioneer 

Service (collectively appellants), operated convenience and 

retail stores in Whiteclay. Appellants retained attorney Andrew 

Snyder (individually Snyder) and the law firm of Chaloupka, 

Holyoke, Snyder, Chaloupka & Longoria P.C. L.L.O. (collectively appellees), to secure renewal of their liquor licenses for 

the 2017‐18 year

For the first time in 2017, the NLCC required appellants to 

submit a long‐form renewal application to keep their liquor

licenses, rather than allowing the shorthand automatic online 

renewal that had been previously granted as a matter of course. 

Appellants filed such applications, and several citizen objectors 

opposed them.

When the NLCC held a hearing on the renewal applications in 2017, the citizen objectors acted, and were treated, 
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as parties in the proceedings before the NLCC. Appellees and 

legal counsel for the citizen objectors were both copied on the 

NLCC’s order denying the liquor license applications.

On April 25, 2017, appellees appealed the NLCC’s decision 

on behalf of appellants in the Lancaster County District Court. 

Appellees did not name any of the citizen objectors as parties 

to the appellate proceedings. The Lancaster County District 

Court thereafter vacated the NLCC’s decision, concluding that 

the NLCC’s decision was arbitrary and unreasonable, exceeded 

NLCC’s statutory authority, and was contrary to Nebraska 

statutes and prior rulings of the Nebraska Supreme Court. The 

district court ordered the NLCC to honor the renewal of appellants’ liquor licenses.

The NLCC and the citizen objectors appealed the district 

court’s decision. In Kozal v. Nebraska Liquor Control Comm. 

(Kozal I) 1 this court vacated the district court’s decision and 

dismissed the challenge to the NLCC decision. In Kozal I, we 

determined that this court lacked jurisdiction to hear the appeal 

because the citizen objectors were not named as parties to the 

appellate proceedings as required under Nebraska law.

The day our opinion in Kozal I was released, Snyder sent 

an email to appellants informing them of the result, citing his 

own “error in not including ‘all parties’ in the appeal,” stating 

that “[o]bviously, this is my fault,” and including contact information for his malpractice carrier. On April 5, 2019, appellants filed a legal malpractice action against appellees in the 

Sheridan County District Court.

On November 14, 2019, appellants filed a motion for partial summary judgment against appellees, contending that no 

expert testimony was necessary because appellees’ malpractice 

was obvious because Snyder admitted his error in writing. On 

January 27, 2020, the district court denied appellants’ first 

motion for summary judgment.

1 Kozal v. Nebraska Liquor Control Comm., 297 Neb. 938, 902 N.W.2d 147 

(2017).
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On November 12, 2020, appellees filed a motion for summary judgment, contending that they did not breach any duty 

of care to appellants. On January 26, 2021, appellants filed 

a motion for partial summary judgment, arguing that appellees breached their duty of care by failing to name the citizen 

objectors as parties to the appellate proceedings and by failing 

to advise appellants of the consequences of failing to name the 

citizen objectors if appellees thought the issue was unsettled.

In April 2021, the district court issued an order denying 

appellants’ motion for partial summary judgment and granting 

appellees’ motion for summary judgment. The district court 

found that it was a question of law whether appellees breached 

a duty of care in an area of unsettled law and that appellees 

ultimately did not breach this duty.

Appellants appealed from the district court’s order and petitioned this court to bypass the Court of Appeals. We granted 

appellants’ petition to bypass, and this case was thereafter 

moved to our docket.

III. ASSIGNMENTS OF ERROR

On appeal, appellants assign that the district court erred 

in (1) concluding that, as a matter of law, appellees did not 

breach the applicable standard of care; (2) granting summary 

judgment to appellees; and (3) denying appellants’ motion for 

partial summary judgment.

IV. 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 the facts 

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

of law. 2

[2] In reviewing the grant of a motion for summary judgment, an appellate court views the evidence in the light most 

2 Guinn v. Murray, 286 Neb. 584, 837 N.W.2d 805 (2013).
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favorable to the party against whom the judgment was granted, 

giving that party the benefit of all reasonable inferences deducible from the evidence. 3

[3] When reviewing questions of law, an appellate court 

resolves the questions independently of the lower court’s 

conclusion. 4

V. ANALYSIS

1. Standard of Care

[4] To prevail on a claim for legal malpractice, a plaintiff 

must prove (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

The parties do not dispute that Snyder was a licensed attorney 

practicing in the State of Nebraska, nor do they dispute that 

Snyder was hired by appellants to assist in the renewal of 

their liquor licenses for the 2017‐18 year. Thus, we focus on

whether Snyder neglected a reasonable duty.

[5] In a legal malpractice action, the required standard of 

conduct or general rule regarding an attorney’s reasonable duty 

to his or her client is that the attorney, by accepting employment to give legal advice or to render other legal services, 

impliedly agrees to exercise such skill, diligence, and knowledge as that commonly possessed by attorneys acting in similar 

circumstances. 6

(a) Questions of Law and 

Questions of Fact

Appellants assign that the district court erred in granting 

appellees’ motion for summary judgment and finding that 

3 Ecker v. E & A Consulting Group, 302 Neb. 578, 924 N.W.2d 671 (2019).

4 State v. Jackson, 296 Neb. 31, 892 N.W.2d 67 (2017).

5 See Young v. Govier & Milone, 286 Neb. 224, 835 N.W.2d 684 (2013).

6 See Boyle v. Welsh, 256 Neb. 118, 589 N.W.2d 118 (1999). See, also, 

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

McGrath North, 274 Neb. 130, 738 N.W.2d 434 (2007).
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appellees did not breach the applicable standard of care as a 

matter of law. Appellants further assert that the district court 

erroneously engaged in an analysis of both questions of law 

and questions of fact, ultimately drawing conclusions of fact 

that it was not authorized to make.

[6] In Guinn v. Murray, this court previously clarified what 

issues in a legal malpractice action are questions of law for the 

court and what issues are questions of fact for the fact finder. 7

To the extent there is an issue as to what the law was and 

whether the attorney correctly advised on such law is a question of law for the court. 8 If the court decides that an attorney’s 

conduct or advice did not comport with the substance of the 

law at the time it was given, then whether the attorney’s specific conduct in that particular case fell below what the attorney’s specific conduct should have been is a question of fact. 9

Said differently, it is a question of fact whether the attorney’s 

conduct, under the particular circumstances of the case, was 

such that the attorney exercised the same skill, diligence, and 

knowledge as that commonly possessed by attorneys acting in 

similar circumstances. 10

Accordingly, whether Snyder’s conduct or advice was in 

conformity with the law at the time it was given is a legal 

question for the court. If Snyder’s conduct or advice was not 

in conformity with the law, then the question of whether such 

conduct or advice was negligent is a fact issue for the jury. 

If Snyder’s conduct or advice was not erroneous as a matter 

of law, further analysis regarding the factual determination of 

whether Snyder’s conduct was negligent is unnecessary.

(b) Unsettled Area of Law

[7] In order to determine whether an attorney’s conduct was 

in conformity with the law, the court may consider whether 

7 See Guinn v. Murray, supra note 2.

8 Id.

9 Id.

10 See, id.; Wolski v. Wandel, supra note 6.
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the issue was previously unsettled. In Wood v. McGrath, 

North,

 11 we stated that an attorney is not liable for an error 

in judgment on a point of law which has not been settled by 

an appellate court and on which reasonable doubt may be 

entertained by well‐informed lawyers, because an attorney has

no duty to accurately predict the future course of unsettled 

law. This immunity rule encourages practicing attorneys in 

this state to predict, in a professional manner, the outcome of 

legal issues relevant to their clients’ cases. 12 Hence, if the law 

regarding citizen objectors as parties to an appeal was unsettled 

in Nebraska or a matter of first impression, then Snyder’s judgment on the matter would be immune from suit.

Appellants contend that the district court should have concluded that Snyder was professionally negligent as a matter 

of law because Snyder admitted he did not name the citizen 

objectors as parties on appeal, and appellants further contend 

that the issue of naming citizen objectors was a settled area 

of law. By contrast, appellees contend, and the district court 

found, that this was an unsettled, complicated issue of first 

impression.

A review of the record indicates that the law regarding 

citizen objectors in this context was indeed unsettled. In 

Kozal I,

 13 we noted that the Administrative Procedure Act 

(APA), 14 specifically § 84‐917, requires that a petitioner name

all “parties of record” in the agency proceedings as parties to 

the proceeding for review. Because the APA did not provide 

guidance for when a nonagency party is a “party of record,” 

we next looked in Kozal I to the Nebraska Liquor Control 

Act (NLCA). 15

11 Wood v. McGrath, North, 256 Neb. 109, 589 N.W.2d 103 (1999).

12 Id.

13 Kozal I, supra note 1.

14 Neb. Rev. Stat. §§ 84‐901 to 84‐920 (Reissue 2014 & Cum. Supp. 2016

15 Neb. Rev. Stat. §§ 53‐101 to 53‐1,122 (Reissue 2010 & Cum. Supp. 2016
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The NLCA, in § 53‐1,115, defines which parties qualify as

“part[ies] of record” in the NLCC proceedings, but includes 

limiting language, “[f]or purposes of this section.” 16 To determine whether the Legislature intended to specifically limit its 

definition of parties of record to § 53‐1,115(4), we looked to

the legislative history surrounding the NLCA and APA. 17

In Kozal I, after reviewing the legislative history surrounding the NLCA and APA, we found that the definition of “party 

of record” had been enacted in the same bill that amended the 

NLCA to allow for review through the APA. Further,

[t]he fact that the Legislature adopted the definition of 

“party of record” in § 53‐1,115(4) . . . in the very same

bill in which it adopted APA review of the [NLCC’s] 

orders, leads to the conclusion that the definition in 

§ 53‐1,115(4) is the controlling definition of “party of

record” for purposes of APA review of the Commission’s 

proceedings. 18

We thereafter concluded that the citizen objectors were parties of record in the licensure proceeding before the NLCC. 

Because the citizen objectors were not named as parties on 

appeal, the retailers had not complied with the requirements 

for judicial review under the APA, and the district court lacked 

jurisdiction over the retailers’ petition for review. The district 

court’s order was therefore void, and this court lacked jurisdiction over the appeal. We vacated the district court’s order and 

dismissed the appeal.

[8,9] An appellate court will not resort to interpretation 

to ascertain the meaning of statutory words that are plain, 

direct, and unambiguous. 19 But when a statutory term is 

reasonably considered ambiguous, a court may examine the 

16 See Kozal I, supra note 1.

17 See id.

18 Id. at 948, 902 N.W.2d at 155‐56

19 In re Estate of Adelung, 306 Neb. 646, 947 N.W.2d 269 (2020).
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legislative history of the act in question to ascertain the intent 

of the Legislature. 20 Our decision to include a review of the 

legislative history, and our use of that history to interpret 

the meaning of statutory language and to define a party of 

record, indicates that the law was ambiguous and open to 

construction.

Until this court rendered a decision in Kozal I, the issue of 

naming citizen objectors on appeal from NLCC decisions was 

unsettled. At the same time, other attorneys and judges were 

arriving at similar conclusions on the issue of naming citizen 

objectors as parties to an appeal, 21 and there were multiple 

cases decided prior to Snyder’s decision in which citizen objectors were not included as necessary parties to an appeal from 

the NLCC. 22 Consequently, Snyder is not liable for an error 

in judgment on a point of law which had not been settled by 

this court and on which reasonable doubt was entertained by 

well‐informed lawyers. Snyder had no duty to accurately predict the future course of unsettled law

Appellants, in support of their argument that this area of 

law was settled, cite to Shaffer v. Nebraska Dept. of Health & 

20 Scofield v. State, 276 Neb. 215, 753 N.W.2d 345 (2008). See Bridgeport 

Ethanol v. Nebraska Dept. of Rev., 284 Neb. 291, 818 N.W.2d 600 (2012).

21 See, Candyland, LLC v. Nebraska Liquor Control Comm., 306 Neb. 169, 

944 N.W.2d 740 (2020); Retroactive, Inc. v. Nebraska Liquor Control 

Comm., 298 Neb. 936, 906 N.W.2d 328 (2018).

22 See, Grand Island Latin Club v. Nebraska Liq. Cont. Comm., 251 Neb. 

61, 554 N.W.2d 778 (1996); B & R Stores v. Nebraska Liquor Control 

Comm., 242 Neb. 763, 497 N.W.2d 654 (1993); Gas ’N Shop v. Nebraska 

Liquor Control Comm., 241 Neb. 898, 492 N.W.2d 7 (1992); Gas ’N 

Shop v. Nebraska Liquor Control Comm., 229 Neb. 530, 427 N.W.2d 784 

(1988); Harrigfeld v. Nebraska Liquor Control Commission, 203 Neb. 

741, 280 N.W.2d 61 (1979); Joe and Al’s IGA, Inc. v. Nebraska Liquor 

Control Commission, 203 Neb. 176, 277 N.W.2d 693 (1979); City of 

Lincoln v. Nebraska Liquor Control Comm., 9 Neb. App. 390, 612 N.W.2d 

252 (2000), reversed on other grounds 261 Neb. 783, 626 N.W.2d 518 

(2001).
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Human Servs.

 23 In Shaffer, this court concluded that an insurance company was a party of record for purposes of the APA 

where, among other things, it had participated in hearings, 

was treated as a party, and presented evidence and arguments. 

Appellants conclude that Snyder therefore should have known 

that the citizen objectors were parties of record, because like 

the insurance company in Shaffer, the citizen objectors had 

participated in hearings and were treated as parties. We do 

not agree.

[10] In Kozal I, this court undertook a multistep analysis wherein we concluded that citizen objectors were parties 

of record for purposes of the APA because citizen objectors are defined by the NLCA as “‘part[ies] of record’” in 

the Commission’s liquor license application proceedings and

because the citizen objectors acted as and were treated as parties in the Commission’s hearing. 24 Shaffer provided support 

for the latter portion of the analysis, but did little to resolve 

the other issues presented where this court questioned the 

applicability of the NLCA to the APA, and so this court instead 

referred to legislative history. If Shaffer had indeed settled the 

issue, this court would likely have forgone such detailed legislative review and merely cited to Shaffer, as an appellate court 

is not obligated to engage in an analysis that is not needed to 

adjudicate the controversy before it. 25

While we are required to reach a conclusion independent 

of the trial court’s conclusion on questions of law, we agree 

with the trial court’s interpretation: This was an unsettled, complicated issue of first impression. Thus, even though this court 

later deemed Snyder’s decision to omit the citizen objectors on 

appeal to be erroneous in Kozal I, Snyder’s decision was not 

erroneous as a matter of law at the time it was made.

23 Shaffer v. Nebraska Dept. of Health & Human Servs., 289 Neb. 740, 857 

N.W.2d 313 (2014).

24 Kozal I, supra note 1, 297 Neb. at 953, 902 N.W.2d at 158.

25 Curry v. Lewis & Clark NRD, 267 Neb. 857, 678 N.W.2d 95 (2004).
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Snyder did not err as a matter of law when he omitted the 

citizen objectors from the appeal of the NLCC’s decision. The 

district court did not err when it concluded the same.

(c) Client Consent

Appellants argue in the alternative that even if the issue of 

naming citizen objectors was an unsettled area of law, Snyder 

breached the applicable standard of care by failing to advise 

appellants of his decision to omit the citizen objectors and 

the risks involved with such decision. Appellees argue that 

the duty to inform or to discuss unsettled legal issues with 

a client has only been imposed in the context of settlement 

negotiations.

Appellants cite Wood for the proposition that lawyers generally have a duty to reasonably inform their clients of the issues 

in their cases and allow their clients to make informed decisions. 26 Accordingly, appellants assert that Snyder’s decision 

to omit the citizen objectors on appeal without first consulting 

appellants regarding this choice was not protected by the doctrine of judgmental immunity that has been previously applied 

in the context of unsettled issues of law.

But appellants have omitted key information from the Wood

opinion which is pertinent to appellees’ argument. In Wood, we 

addressed an attorney’s negligence in the context of failing to 

inform a client of unsettled legal issues pertaining to a settlement. We discussed our holdings in Baker v. Fabian, Thielen & 

Thielen,

 27 where we first established:

[A]n attorney is not liable for an error in judgment on 

a point of law which has not been settled by this court 

and on which reasonable doubt may be entertained by 

well‐informed lawyers. Thus, an attorney’s judgment or

recommendation on an unsettled point of law is immune 

26 Wood v. McGrath, North, supra note 11.

27 Baker v. Fabian, Thielen & Thielen, 254 Neb. 697, 578 N.W.2d 446 

(1998).
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from suit, and the attorney has no duty to accurately predict the future course of unsettled law. 28

Applying this judgmental immunity rule from Baker in the 

context of settlement negotiations, we stated:

If we conclude that the judgmental immunity rule applies 

to an attorney’s failure to inform a client of unsettled legal 

issues relevant to a settlement, an attorney could forgo 

conducting research or providing a client with information on a relevant legal issue once he or she determined 

that the legal issue at hand was unsettled in this state. We 

fail to see how this result promotes the settlement of disputes in a client’s best interests. 29

In Wood, we were tasked with determining whether to 

extend the Baker judgmental immunity rule to an attorney’s 

failure to inform a client of unsettled legal issues relevant to a 

settlement agreement. We concluded that the doctrine of judgmental immunity did not apply in this context, but reiterated 

that our decision imposed no additional duty as a matter of law 

to research or inform a client on unsettled legal matters, that 

an attorney’s ultimate recommendation in an area of unsettled 

law is immune from suit, and that such a result gives the client the benefit of both professional advice and the information necessary to make an informed decision whether to settle 

a dispute. 30

Contrary to appellants’ assertions, Wood did not create a 

general duty of lawyers to inform their clients of procedural or 

tactical decisions just because the area of law may be unsettled. 

Appellants have failed to provide any case law that would 

extend the duty to inform beyond settlement negotiations.

And while the duty to inform has not yet been extended 

past settlement negotiations in this state, we are aware that 

28 Wood v. McGrath, North, supra note 11, 256 Neb. at 113, 589 N.W.2d at 

106.

29 Id. at 117, 589 N.W.2d at 108 (emphasis supplied).

30 Id.
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other jurisdictions considering the same issue are split, with 

some deciding that judgmental immunity should not apply to 

an attorney’s failure to inform their clients of the nature of the 

unsettled law. We are also aware that Wood, and specifically 

the cannon cited therein, may tend to imply the same. However, 

we reiterate that our holding in Wood was specifically limited 

to the settlement context upon contention of the parties that the 

law firm either did or did not have a duty to inform its client 

of relevant unsettled issues of law when the law firm had presented its client with a settlement.

[11] Further, we find the arguments in favor of extending 

judgmental immunity to be persuasive. For example, in considering judgmental immunity and the duty to inform, the Florida 

Supreme Court stated:

Attorneys cannot be placed in the position of having to 

accept direction from clients on intricate interpretations 

of the correct or current state of the law. The attorney, not 

the client, is the individual trained to interpret the law. . 

. . [A]n attorney should not be required to compromise a 

reasoned judgment by having to factor into the judgment 

the client’s reasoning on a fine point of law. 31

A California court similarly stated that an attorney who acts 

in good faith and exercises an honest and informed discretion 

is not culpable for failing to correctly anticipate the resolution of an unsettled legal principle, additionally commenting 

that “[t]o require the attorney to further advise a client of the 

uncertainty in the law would render the exercise of such professional judgment meaningless.” 32

Here, evidence in the record, as well as from our decision 

in Kozal I, shows that the issue of naming citizen objectors 

as necessary parties on appeal was unsettled. While Snyder’s 

decision to omit citizen objectors on appeal was later deemed 

31 Crosby v. Jones, 705 So. 2d 1356, 1359 (Fla. 1998).

32 Davis v. Damrell, 119 Cal. App. 3d 883, 889, 174 Cal. Rptr. 257, 261 

(1981).
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erroneous by this court, it was not erroneous at the time 

Snyder made the decision. Snyder did not have a duty to 

inform his clients regarding the unsettled area of law. Snyder’s 

conduct was therefore not erroneous as a matter of law, and 

this assignment of error is without merit.

2. Cross Motions for Summary Judgment

In their second assignment of error, appellants assert that the 

district court erred in granting appellees’ motion for summary 

judgment.

[12] 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 and 

that the moving party is entitled to judgment as a matter of 

law. 33 In the summary judgment context, a fact is material only 

if it would affect the outcome of the case. 34

Appellants focus their argument on the testimony of an 

expert who opined that Snyder breached the standard of care 

by failing to name the citizen objectors on appeal and by failing to inform appellants that he believed this issue was an 

unsettled area of law. However, to the extent there is an issue 

as to what the law was and whether an attorney correctly 

advised on such law is a question of law for the court rather 

than a question of fact. The expert’s testimony that the law 

was settled, that Snyder incorrectly advised on that law, and 

that Snyder had a duty to inform his clients of the law if he 

believed it was unsettled would not affect the outcome of the 

case and is immaterial.

[13] Appellants next focus on the email received from 

Snyder on the day our decision in Kozal I was released. In his 

email, Snyder stated that the appeal was lost and that “[o]bviously, this is my fault.” But while Snyder’s email to appellants 

33 Guinn v. Murray, supra note 2.

34 O’Brien v. Bellevue Public Schools, 289 Neb. 637, 856 N.W.2d 731 

(2014).
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did acknowledge that his actions were the reason the appeal 

was lost, the email was not an admission that Snyder had 

breached any applicable standard of care, nor does it create 

a question of fact. Statements or admissions characterized as 

mistakes or errors do not necessarily mean that a standard of 

care has been violated. 35 While Snyder’s decision to omit the 

citizen objectors may be characterized as a mistake, his email 

admitting to making a mistake does not prove any breach of 

the standard of care, nor does it impact whether Snyder’s conduct was erroneous as a matter of law. Thus, this evidence also 

does not raise any issues of material fact.

We conclude that appellants’ evidence opposing summary 

judgment was insufficient to create an issue of material fact 

and that thus, the district court did not err when it granted 

appellees’ motion for summary judgment.

Finally, appellants assign that the district court erred in 

denying their motion for partial summary judgment. Summary 

judgment is proper when the pleadings and evidence admitted 

at the hearing disclose no genuine issue regarding any material 

fact and the moving party is entitled to judgment as a matter 

of law. 36 But, as discussed above, Snyder’s conduct or advice 

was not erroneous as a matter of law; hence, appellants are not 

entitled to judgment as a matter of law.

Despite appellants’ assertions that the district court should 

have granted their motion for partial summary judgment based 

on the undisputed facts, appellants have failed to prove that 

they are entitled to judgment as a matter of law. Conversely, 

Snyder was entitled to judgment as a matter of law. The district court did not err when it granted appellees’ motion for 

35 See, Fossett v. Board of Regents, 258 Neb. 703, 605 N.W.2d 465 (2000) 

(doctor admitted that leaving fluid in patient’s abdomen was mistake; this 

court found that such statement provided no insight into requisite standard 

of care for treating patient and did not create reasonable inference of 

negligence); Halligan v. Cotton, 193 Neb. 331, 227 N.W.2d 10 (1975) 

(doctor’s statements proved causation, but did not prove negligence).

36 Chambers v. Bringenberg, 309 Neb. 888, 963 N.W.2d 37 (2021).
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summary judgment or when it denied appellants’ motion for 

partial summary judgment.

VI. CONCLUSION

When Snyder filed the appeal underlying Kozal I, in which 

he did not name the citizen objectors as parties, the issue 

of naming citizen objectors in appeals from decisions of the 

NLCC was an unsettled issue of law. Additionally, Snyder did 

not have a duty to inform his clients regarding the unsettled 

area of law. We therefore find that the district court did not err 

when it concluded that, as a matter of law, appellees did not 

breach the applicable standard of care.

We do not review the district court’s decision to deny appellants’ motion for partial summary judgment, and we hold that 

the district court also did not err when it granted appellees’ 

motion for summary judgment.

Affirmed.

Freudenberg, J., not participating.

Papik, J., concurring in part, and in part dissenting.

I concur in the majority’s determination that Snyder was 

entitled to summary judgment on the claim that he was negligent in failing to name the citizen objectors. On this claim, I 

agree with the majority that the law on whether citizen objectors had to be named was unsettled and that Snyder’s decision 

not to name them was covered by the doctrine of judgmental 

immunity. I write separately, however, to explain my disagreement with the majority’s conclusion that Snyder was entitled 

to summary judgment on the claim that he was negligent in 

failing to advise his clients of the risk of omitting the citizen 

objectors on appeal.

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. Guinn v. Murray, 286 Neb. 584, 

837 N.W.2d 805 (2013). The question of what that standard 

requires of an attorney in a particular case and whether 
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an attorney met that standard is a question of fact. See id.

Generally, then, legal malpractice plaintiffs can avoid having 

their case dismissed as a matter of law and reach a trier of 

fact if they have expert testimony that lawyers of ordinary 

skill and capacity would have handled a situation a certain 

way, but the attorney-defendant failed to meet that standard. 

See id.

We have recognized an exception to this general rule when 

lawyers take action with respect to unsettled areas of law. 

In particular, we have held that a legal malpractice plaintiff 

cannot avoid judgment as a matter of law if the claim is 

that the lawyer was negligent for an error in judgment on an 

unsettled legal question, no matter what expert testimony the 

plaintiff might rely upon. See, e.g., Baker v. Fabian, Thielen 

& Thielen, 254 Neb. 697, 578 N.W.2d 446 (1998). We have 

referred to this as the “doctrine of judgmental immunity.” 

Wood v. McGrath, North, 256 Neb. 109, 113, 589 N.W.2d 103, 

105 (1999). Our rationale for adopting the doctrine is that 

attorneys cannot be expected to accurately predict the future 

course of unsettled law. See, id.; Baker, supra. I have no quarrel with the doctrine or with the majority’s conclusion that it 

applies to Snyder’s decision not to name the citizen objectors 

on appeal.

I disagree, however, with the majority’s conclusion that 

the doctrine of judgmental immunity should be extended such 

that, with the exception of advice regarding settlement offers, 

a lawyer cannot be liable for failing to advise clients regarding 

risks posed by unsettled areas of law. In my view, the rationale 

for the judgmental immunity rule does not neatly fit when it 

is claimed that a lawyer was negligent for failing to advise 

clients regarding risks posed by unsettled areas of law. To take 

this case as an example, Snyder would not have had to predict 

that this court would determine that failing to name the citizen 

objectors was a jurisdictional defect that would require dismissal to advise his clients of the risks and benefits of naming 

or not naming the citizen objectors.
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I agree with the majority that our decision in Wood, supra, 

held only that the judgmental immunity doctrine did not cover 

a failure to advise claim in the context of advice regarding settlement offers. But, on the other hand, much of our reasoning 

in that case would apply to other contexts as well. We noted, 

for example, that a lawyer need not accurately predict the 

future course of the law in order to advise a client regarding 

unsettled issues in the law. We also reasoned that if the judgmental immunity rule applied to an attorney’s failure to inform 

a client of unsettled legal issues relevant to a settlement, “an 

attorney could forgo conducting research or providing a client with information on a relevant legal issue once he or she 

determined that the legal issue at hand was unsettled in this 

state.” Id. at 117, 589 N.W.2d at 108. It strikes me that today’s 

decision appears to immunize lawyers from potential liability 

if they take that very course in an area that does not involve 

providing advice on a settlement offer.

To be fair, our decision in Wood also relied on a provision of 

the then-governing professional responsibility rules for attorneys, providing that the decision to settle a case belongs to the 

client. But other provisions of our current rules of professional 

conduct recognize an attorney’s general duty to keep a client 

informed so the client can make decisions during the representation. These rules provide that an attorney shall “reasonably 

consult with the client about the means by which the client’s 

objectives are to be accomplished,” Neb. Ct. R. of Prof. Cond. 

§ 3-501.4(a)(2); “keep the client reasonably informed about the 

status of the matter,” § 3-501.4(a)(3); and “explain a matter to 

the extent reasonably necessary to permit the client to make 

informed decisions regarding the representation,” § 3-501.4(b). 

A comment to this rule adds:

The client should have sufficient information to participate intelligently in decisions concerning the objectives 

of the representation and the means by which they are 

to be pursued, to the extent the client is willing and able 

to do so. Adequacy of communication depends in part 
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on the kind of advice or assistance that is involved. For 

example, when there is time to explain a proposal made in 

a negotiation, the lawyer should review all important provisions with the client before proceeding to an agreement. 

In litigation, a lawyer should explain the general strategy 

and prospects of success and ordinarily should consult 

the client on tactics that are likely to result in significant 

expense or to injure or coerce others. On the other hand, a 

lawyer ordinarily will not be expected to describe trial or 

negotiation strategy in detail. The guiding principle is that 

the lawyer should fulfill reasonable client expectations for 

information consistent with the duty to act in the client’s 

best interests, and the client’s overall requirements as to 

the character of representation.

§ 3-501.4, comment 5.

I also note that I am not persuaded by the majority’s reliance on two cases from other jurisdictions. As an initial matter, it is not clear to me that those cases extend the doctrine of 

judgmental immunity as far as the majority does here. Starting 

with the Florida Supreme Court’s opinion in Crosby v. Jones, 

705 So. 2d 1356, 1359 (Fla. 1998), that opinion expressly 

disavowed holding that “an attorney should never be required 

to inform a client regarding a conflict in the law.” Instead, 

the court held that the lawyer did not have a duty to consult 

with his clients when the existing precedents of the court in 

which the underlying case was pending supported the lawyer’s decision. As we explained in Wood v. McGrath, North, 

256 Neb. 109, 116, 589 N.W.2d 103, 107 (1999), Crosby was 

thus a case of not “unsettled law,” but “apparently settled

law.” (Emphasis in original.) I agree that a lawyer should be 

immune from a suit when it is alleged that he or she failed to 

consult with a client about apparently settled law. But in this 

case, there is no suggestion that at the time Snyder filed the 

appeal, the law was apparently settled that citizen objectors 

need not be named.
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The other case relied on by the majority, Davis v. Damrell, 

119 Cal. App. 3d 883, 174 Cal. Rptr. 257 (1981), also may 

have presented a situation in which a court was reluctant to 

allow for liability for the failure to predict a change in the law. 

Although the court refers to the law at issue as unsettled, it 

also states that the lawyer could not be held liable for failing to 

anticipate a “180 degree shift in the law.” Id. at 888, 174 Cal. 

Rptr. at 260 (internal quotation marks omitted).

Both Crosby and Davis do have broader language, quoted by 

the majority, concluding that it would be an intrusion on lawyers’ professional judgment if there is a possibility that lawyers 

can be held liable for not advising their clients regarding risks 

associated with unsettled issues of law. I am not convinced. 

As I see it, advising a client regarding legal risks is part and 

parcel of attorneys’ professional judgment. I also note that to 

the extent Crosby and Davis are read to apply the doctrine of 

judgmental immunity to any case in which it is alleged that a 

lawyer failed to advise a client regarding unsettled issues of 

law, several other courts have not followed that approach. See, 

e.g., Williams v. Ely, 423 Mass. 467, 668 N.E.2d 799 (1996); 

Chatham Orthopaedic Surgery Center v. White, 283 Ga. App. 

10, 640 S.E.2d 633 (2006); First Nat. Bank of Clovis v. Diane, 

Inc., 102 N.M. 548, 698 P.2d 5 (N.M. App. 1985); Bowman v. 

Gruel Mills Nyms & Pylman, LLP, 2007 WL 1203580 (W.D. 

Mich. Apr. 24, 2007).

Because I would not apply the doctrine of judgmental immunity to the failure to advise claims, I would treat such claims as 

subject to ordinary legal malpractice standards. In other words, 

I would treat the questions of whether the standard of care 

required a lawyer to advise a client of risks posed by unsettled 

areas and whether the lawyer met that standard as questions 

of fact. And because the appellants offered an expert affidavit 

that the standard of care required such advice here, I would not 

affirm the entry of summary judgment on that claim. That outcome would not ensure victory for appellants. Rather, it would 

require a trial where Snyder could offer evidence that this was 
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not an issue on which lawyers of ordinary skill would have 

advised their client or that, given his relationship with appellants, this was not an issue on which his clients would have 

reasonably expected to be so advised.

Much of lawyering, it seems to me, involves identifying 

risks and advising clients of potential consequences so that 

clients can make informed choices. If a lawyer fails to advise 

a client of a risk when other lawyers in the community would 

normally provide such advice and the client can prove resulting damages, I do not think the judgmental immunity doctrine should close the courthouse doors to that client, merely 

because the risk involved an unsettled issue of law. For that 

reason, I respectfully dissent.

Miller-Lerman, J., joins in this concurrence and dissent.