Wolski v. Wandel

746 N.W.2d 143 (2008)

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Nature of the Case

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Facts

P retained D to represent him in a dispute with his sister, Parriott, regarding ownership of real property. On December 30, 1974, and January 9, 1975, P's parents conveyed the two tracts by warranty deed to P. Another warranty deed, dated January 14, 1975, transferred the same 119 acres from P to Parriott as 'Trustee.' This deed did not identify the trust, name a beneficiary, or describe the trust in any other way. P had a dispute with Parriott regarding income from the property, and in 2000, he retained D to 'break' any trust and secure fee simple title in the 119 acres purportedly held in trust. D filed a petition that sought to set aside any trust agreement and the warranty deed. No trust agreement was ever located. Parriott testified that the original trust was amended on May 29, 1982, by a document entitled 'Amendments of Trust Agreement.' The amendment was signed by P as grantor and Parriott as trustee and provides that the trust would be irrevocable, that Wolski would have a life estate in the real property, and that the remainder would pass to Parriott or her lineal heirs. The signatures on this document were not notarized. Discovery disclosed that P was married in 1982, several months after the date of the amendment. On September 8, 1987, Parriott was appointed guardian and conservator for P. In that capacity, she brought a successful action to annul his marriage. The record reflects that the conservatorship was terminated in 1995 and that the guardianship was terminated in 1997. During the pendency of the suit, D filed a motion for the appointment of a guardian ad litem for P. Medical records show that P had certain disabilities affecting his mental capacity and speech. The court-appointed attorney Thomas Harmon as guardian ad litem for P on August 21, 2001. Harmon conducted an investigation and according to Harmon, P told him that he wanted to ensure that he always had a place to live and that he would have money for living expenses. At a November 2, 2001, hearing, the parties advised the court that they had settled the case. The parties agreed to establish a conservatorship for P, with Harmon to serve as conservator. P was granted a life estate in the 119-acre tract, with the remainder to Parriott or her lineal heirs. Any proceeds received from an invasion of P's life estate would be shared equally by P and Parriott and that they would also share the lease payments made with respect to a sand and gravel lease of the property. The court approved the settlement agreement. Through his current attorney, P unsuccessfully sought to vacate the order approving the settlement. P sued D alleging that she breached her duty to P by 'failing to use the degree of skill and care ordinarily used by Nebraska licensed attorneys' in several particulars, all relating in some way to the settlement of the litigation against Parriott. D moved for summary judgment and it was granted. P appealed.