Gallner v. Larson

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GALLNER v. LARSON
Cite as 291 Neb. 205

Michael Gallner, as Personal R epresentative
of the Estate of Judy Hoffman, deceased,
and Jordan Gallner, individually and
as guardian and next friend of
M akenzie Gallner, appellants,
v. C. Gregg Larson, appellee.
___ N.W.2d ___

Filed June 26, 2015. No. S-14-240.

 1. Actions: Conversion. An action for conversion sounds in law.
 2. Appeal and Error. A district court’s factual determination in a bench
trial in an action at law has the same effect as a jury verdict and will not
be set aside unless clearly wrong.
 3. Actions: Trusts: Equity. An action to impose a constructive trust
sounds in equity.
  4. ____: ____: ____. An action to establish an oral trust sounds in equity.
 5. Equity: Appeal and Error. In an appeal of an equitable action, an
appellate court tries factual questions de novo on the record, provided
that where credible evidence is in conflict on a material issue of fact, the
appellate court considers and may give weight to the fact that the trial
judge heard and observed the witnesses and accepted one version of the
facts rather than another.
 6. Trial: Evidence: Appeal and Error. A trial court has the discretion to
determine the relevancy and admissibility of evidence, and such deter-
minations will not be disturbed on appeal unless they constitute an abuse
of that discretion.
 7. Agency: Proof. Where a fiduciary or confidential relationship exists
between the parties to a transaction, the burden of proof is upon the
party holding the fiduciary or confidential relationship to establish the
fairness, adequacy, and equity of the transaction.
 8. Agency. It is the duty of the fiduciary to fully inform the other party
of all the facts relating to the subject matter of the transaction which
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come to the knowledge of the fiduciary and which are material for the
other party to know for the protection of that party’s interest.
 9. Attorney and Client: Agency. It is axiomatic that the relationship
between attorney and client is a fiduciary or confidential one.
10. 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.

Appeal from the District Court for Douglas County: Leigh
A nn R etelsdorf, Judge. Affirmed.
Theodore R. Boecker, Jr., of Boecker Law, P.C., L.L.O., for
appellants.
Joshua C. Dickinson and Shilee T. Mullin, of Spencer, Fane,
Britt & Browne, L.L.P., for appellee.
Heavican, C.J., Wright, Connolly, Miller-Lerman, and
Cassel, JJ.
Heavican, C.J.
I. INTRODUCTION
Michael Gallner (Gallner) filed a complaint against C.
Gregg Larson alleging breach of fiduciary duty arising out of
the attorney-client relationship, breach of fiduciary duty aris-
ing out of the duty of a trustee, and conversion. Gallner sought
either money damages or the imposition of an oral or construc-
tive trust as to proceeds paid out to Larson as beneficiary of
various life insurance policies following the death of Judy
Hoffman (Judy).
The district court dismissed Gallner’s claims and entered
judgment in Larson’s favor. Gallner appeals. We affirm.
II. FACTUAL BACKGROUND
Gallner and Judy were married in 1982 and divorced in
1994. There was one son as a result of their marriage, Jordan
Gallner. Jordan is the father of Makenzie Gallner.
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Judy was a resident of Omaha, Nebraska, and an attorney
licensed to practice law. She died intestate on December
10, 2007. Gallner was named personal representative of
her estate.
The present litigation involves Larson, who was a friend
of Judy’s. Judy and Larson met in the early 1990’s when
both represented different defendants in a federal criminal
case. Over the years, Larson assisted Judy in various legal
matters, including continuing legal matters relating to her
divorce from Gallner. Larson, who resides in another state,
would also periodically visit Omaha for personal and profes-
sional activities. On those visits, Larson would sometimes
stay at Judy’s home. Judy attended Larson’s wedding and
also attended Larson’s wife’s funeral. Judy introduced Larson
to her parents. Jordan testified that Larson was a close friend
of Judy’s and that he, Jordan, telephoned Larson upon Judy’s
eventual death.
In November 1999, Judy engaged an attorney to draft a trust
document. That document named Judy as trustee and Larson
as successor trustee. Jordan was the beneficiary under the
trust. In early 2000, Judy sent a copy of the trust document
to Larson. Larson testified that he notified Judy he was not in
a position to serve as trustee given his distance from Omaha.
Larson provided no legal advice to Judy concerning the trust
document. There is no indication that Judy ever executed this
trust document.
At the same time Judy sent Larson this draft trust, she also
sent two other documents. One, exhibit 158, was a handwritten
note dated January 27, 2000, purportedly from Judy to Larson.
This note read in full:
Gregg —
I looked for you on the news — thought you might
be handing out your business cards after that snowstorm
interstate accident[.] Lots of broken bones & wrongful
deaths — That was sick, wasn’t it?
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Anyway, when you can, look this over. You’re the
executor or Trustee or whatever, if I die.
Also, I finally got approved on the life insurance.
You’re the straight-up beneficiary on that. It’s yours.
Gallner objected to exhibit 158 on best evidence grounds
because the exhibit was a photocopy of the original note,
which was no longer available. That objection was overruled.
The other document was the beneficiary designation on a
$100,000 American Family Life Insurance Company policy
(American Family policy). Apparently, Jordan had originally
been the primary beneficiary, but in late November 1999, Judy
changed the primary beneficiary to Larson, who was listed as
a “family friend.” The contingent beneficiary had been, and
remained, Judy’s father.
In November 2000, Judy obtained employment as an instruc-
tor at a community college in Omaha. She met with the coor-
dinator of benefits and compensation at the beginning of
her employment. Judy’s benefits included a “UnumProvident”
life insurance policy (Unum policy) and a 403(b) retirement
account. The record shows that the 403(b) account was split
equally between a Fidelity Investments account and a TIAA-
CREF account.
On the Unum policy, Judy designated Larson as her pri-
mary beneficiary and Jordan as her contingent beneficiary.
On the Fidelity Investments account, Judy designated Larson
as primary beneficiary and Jordan as contingent beneficiary.
Judy did not make any mention of a trust or trustee on either
of Larson’s designations. Larson is identified as “friend/atty”
where the relationship is requested.
However, on the TIAA-CREF account, Judy designated
Jordan as primary beneficiary and Larson as contingent ben-
eficiary. Jordan was also designated as primary beneficiary for
distribution of final pay and accumulated leave pay from the
college, with Larson listed as contingent beneficiary.
In the fall of 2007, Judy engaged attorney Larry Forman to
draft a last will and testament. The draft will and cover letter
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were sent to Judy on October 11. The will designated the dis-
tribution of Judy’s tangible personal property and “insurance
policies and claims under such policies on such property”
to Jordan, with the remainder of her estate to Jordan and
Makenzie. The trustee and personal representative under this
will was to be Larson. On its face, the will does not indicate
any intention with regard to any life insurance policies, nor
does it contemplate any trusts funded by life insurance poli-
cies or retirement accounts. The will does not name any of the
assets or funds at issue in this case.
Forman testified at trial that Judy identified her assets to
include her house, a First National Bank account, a “Provident
Trust,” her TIAA-CREF account, and shares of “Heinz and UP
stock.” It is not clear from the record whether the “Provident
Trust” and the UnumProvident policy were in fact the same
asset or two separate assets. In addition, Judy also indicated
to Forman that she had a 401K account. In fact, Judy had
a 403(b) retirement account; the parties appear to dispute
whether Judy was referring to the 403(b) account when she
indicated she had a 401K. Forman further testified that Judy
did not mention any life insurance policies. In his testimony,
Forman indicated that life insurance proceeds were not con-
templated to be included in the estate as the will was drafted;
rather, the testamentary trust created by the draft will included
only the “residue and remainder of the estate.” This will was
apparently never executed.
Judy died on December 10, 2007. Jordan telephoned Larson
that day to inform him of Judy’s death. Larson testified that he
spoke to Jordan twice on December 10 and once on December
11. Jordan agreed that they spoke twice on December 10, but
testified they did not speak on December 11.
Jordan’s and Larson’s accounts of their conversations also
differ. Jordan testified that Larson told him there were “poli-
cies” for which Larson was trustee and that Larson would
be there to help Jordan take care of Makenzie. Larson, on
the other hand, disputed that he mentioned any “policies” or
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indicated that he was a trustee. Larson further noted that he
was unaware of the existence of multiple policies, had in 2000
declined to serve as trustee, and at the time of these conversa-
tions, was unaware of the 2007 draft will.
Larson further claimed that he spoke to Gallner, who told
him that Forman had drafted a will for Judy. Gallner denied
having informed Larson of that fact and further noted that he
disliked Larson such that he would not have conversed with
him at all. The district court agreed that Larson did not learn
of the will from Gallner. Rather, the district court found that
Larson likely learned of the 2007 will from Judy.
The district court found Jordan’s recollection of his con-
versation with Larson to be more credible. The district court
concluded that the telephone conversation between Jordan
and Larson created the inference that Larson knew Forman
had been engaged to draft a will and that there might have
been some duties for Larson and some “‘policies’” to be held
in trust.
Larson contacted Forman on December 11, 2007, in order to
obtain a copy of the draft will. On December 13, a copy of that
will was faxed to Larson.
As found by the district court, Larson eventually received
$236,024.33 from the two life insurance policies and the
retirement account. Upon learning that Larson was the benefi-
ciary on these policies and the retirement account, Gallner, as
personal representative of Judy’s estate, demanded return of
the funds. Gallner filed a complaint against Larson on May
2, 2008. Following a bench trial, the district court found for
Larson and against Gallner. This appeal followed.

III. ASSIGNMENTS OF ERROR
Gallner assigns that the district court erred in (1) deter-
mining that an express trust needed to be created in order to
find Larson liable and in placing the burden to prove such
trust on Gallner, (2) failing to impose a constructive trust, (3)
failing to find that Larson deviated from the standard of care
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and committed legal malpractice by accepting and retaining
Judy’s death benefit funds given his status as her attorney,
and (4) admitting exhibit 158 into evidence.
IV. STANDARD OF REVIEW
[1,2] An action for conversion sounds in law.1 A district
court’s factual determination in a bench trial in an action at law
has the same effect as a jury verdict and will not be set aside
unless clearly wrong.2
[3-5] An action to impose a constructive trust sounds in
equity.3 An action to establish an oral trust also sounds in
­equity.4 In an appeal of an equitable action, an appellate court
tries factual questions de novo on the record, provided that
where credible evidence is in conflict on a material issue of
fact, the appellate court considers and may give weight to the
fact that the trial judge heard and observed the witnesses and
accepted one version of the facts rather than another.5
[6] A trial court has the discretion to determine the rel-
evancy and admissibility of evidence, and such determinations
will not be disturbed on appeal unless they constitute an abuse
of that discretion.6
V. ANALYSIS
On appeal, Gallner assigns four errors to the district court,
which can be restated as two: that Larson breached some duty
owed to Judy and, as a result, he should be liable for conver-
sion or a constructive trust should be placed on the insur-
ance proceeds, and that the district court erred in admitting

 1
Krzycki v. Krzycki, 284 Neb. 729, 824 N.W.2d 659 (2012).
 2
Id.
 3
Eggleston v. Kovacich, 274 Neb. 579, 742 N.W.2d 471 (2007).
 4
Gasper v. Moss, 204 Neb. 24, 281 N.W.2d 213 (1979).
 5
Eggleston, supra note 3.
 6
In re Invol. Dissolution of Wiles Bros., 285 Neb. 920, 830 N.W.2d 474
(2013).
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exhibit 158, the photocopy of the note purportedly from Judy
to Larson.
1. A dmissibility of Exhibit 158
We begin with Gallner’s contention that the district court
erred in overruling his best evidence objection to exhibit 158,
because the disposition of this assignment of error impacts the
remainder of our analysis. We review the district court’s deci-
sion for an abuse of discretion.7
Exhibit 158 was the note from Judy to Larson informing
Larson of the 1999 trust and the American Family insurance
policy. The 2-page note itself is handwritten, but “Judy K.
Hoffman” was preprinted across the top of the first page. In
addition, the first page of the note was written on ruled paper,
while the second page was not. Gallner argues that the photo­
copy of the note which was admitted into evidence was not
the best evidence and that Larson should have had to produce
the original. Larson explained that the original was not avail-
able, though he did not explain why.
Neb. Rev. Stat. § 27-1002 (Reissue 2008) provides:
To prove the content of a writing, recording, or photo­
graph, the original writing, recording, or photograph is
required, except as otherwise provided in these rules or
by Act of Congress or of the Legislature of the State of
Nebraska or by other rules adopted by the Supreme Court
of Nebraska.
Neb. Rev. Stat. § 27-1003 (Reissue 2008) provides: “A dupli-
cate is admissible to the same extent as an original unless (1)
a genuine question is raised as to the authenticity of the origi-
nal or (2) in the circumstances it would be unfair to admit the
duplicate in lieu of the original.”
In this instance, Jordan testified that he believed the hand-
writing on the note to be Judy’s. But Jordan also testified that
Judy usually signed her name to her notes. He also commented
upon the lack of lines on the second page of the note.

 7
See id.
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Section 27-1003 allows the admissibility of a duplicate
unless a genuine question is raised as to the authenticity of
the original. Jordan’s testimony does not reach this threshold.
The fact that the note was unsigned does not seem unusual
given that Judy’s name was printed at the top of the page. And
the lack of lines on the second page suggests that the second
page was written on the reverse side of the first page. As
such, the district court did not abuse its discretion in admitting
exhibit 158.

2. Breach of Fiduciary Duty
(a) Attorney/Client Relationship
Gallner also argues that Larson owed Judy a fiduciary
duty as her attorney. Gallner asserts that Larson should have
advised Judy to seek additional independent legal counsel
upon learning that he had been named as a beneficiary on
the American Family policy. Gallner further argues that this
failure tainted Judy’s designation of Larson as primary ben-
eficiary on the Unum policy and the Fidelity Investments
account. Gallner also contends that Larson committed profes-
sional malpractice resulting in a breach of Larson’s fiduciary
duty to Judy.
[7,8] Where a fiduciary or confidential relationship exists
between the parties to a transaction, the burden of proof is
upon the party holding the fiduciary or confidential relation-
ship to establish the fairness, adequacy, and equity of the
transaction.8 This rule rests on the premise that it is the duty
of the fiduciary to fully inform the other party of all the
facts relating to the subject matter of the transaction which
come to the knowledge of the fiduciary and which are mate-
rial for the other party to know for the protection of that
party’s interest.9

 8
Bauermeister v. McReynolds, 254 Neb. 118, 575 N.W.2d 354 (1998).
 9
Id.
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Both the Code of Professional Responsibility, which was
in effect at the time this designation was made, and the now
effective Nebraska Rules of Professional Conduct, address the
issue of gifts from clients to attorneys. The code provides:
A lawyer should not suggest to his or her client that a
gift be made to the lawyer or for the lawyer’s benefit.
If a lawyer accepts a gift from his or her client, the law-
yer is peculiarly susceptible to the charge that he or she
unduly influenced or overreached the client. If a client
voluntarily offers to make a gift to his or her lawyer, the
lawyer may accept the gift, but before doing so, the law-
yer should urge that the client secure disinterested advice
from an independent, competent person who is cogni-
zant of all the circumstances. Other than in exceptional
circumstances, a lawyer should insist that an instrument
in which his or her client desires to name the lawyer
beneficially be prepared by another lawyer selected by
the client.10
The rules seem to impose an even stricter prohibition:
A lawyer shall not solicit any substantial gift from
a ­client, including a testamentary gift, or prepare on
behalf of a client an instrument giving the lawyer or
person related to the lawyer any substantial gift unless
the lawyer or other recipient of the gift is related to
the client.11
But the comments to the rules further note:
A lawyer may accept a gift from a client, if the transac-
tion meets general standards of fairness. For example, a
simple gift such as a present given at a holiday or as a
token of appreciation is permitted. If a client offers the
lawyer a more substantial gift, paragraph (c) does not
prohibit the lawyer from accepting it, although such a

10
Canon 5, EC 5-5, of the Code of Professional Responsibility.
11
Neb. Ct. R. of Prof. Cond. § 3-501.8(c).
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gift may be voidable by the client under the doctrine of
undue influence, which treats client gifts as presump-
tively fraudulent. In any event, due to concerns about
overreaching and imposition on clients, a lawyer may not
suggest that a substantial gift be made to the lawyer or for
the lawyer’s benefit, except where the lawyer is related to
the client as set forth in paragraph (c).
. . . If effectuation of a substantial gift requires pre-
paring a legal instrument such as a will or conveyance
the client should have the detached advice that another
lawyer can provide.12
The rules further provide guidance in interpretation:
The Rules of Professional Conduct are rules of rea-
son. . . . Some of the Rules are imperatives, cast in the
terms “shall” or “shall not.” These define proper conduct
for purposes of professional discipline. Others, gener-
ally cast in the term “may,” are permissive and define
areas under the Rules in which the lawyer has discre-
tion to exercise professional judgment. . . . Many of the
Comments use the term “should.” Comments do not add
obligations to the Rules but provide guidance for practic-
ing in compliance with the Rules.
....
. . . Violation of a Rule should not itself give rise to a
cause of action against a lawyer nor should it create any
presumption in such a case that a legal duty has been
breached. . . . The Rules are designed to provide guid-
ance to lawyers and to provide a structure for regulat-
ing conduct through disciplinary agencies. They are not
designed to be a basis for civil liability. Furthermore,
the purpose of the Rules can be subverted when they
are invoked by opposing parties as procedural weap-
ons. The fact that a Rule is a just basis for a lawyer’s

12
§ 3-501.8, comments 6 and 7.
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self-assessment, or for sanctioning a lawyer under the
administration of a disciplinary authority, does not imply
that an antagonist in a collateral proceeding or trans-
action has standing to seek enforcement of the Rule.
Nevertheless, since the Rules do establish standards
of conduct by lawyers, a lawyer’s violation of a Rule
may be evidence of breach of the applicable standard
of conduct.13
[9] The record clearly shows that at the time Judy made
Larson a beneficiary on the American Family policy, he was
representing her in legal matters. It is axiomatic that the rela-
tionship between attorney and client is a fiduciary or confi-
dential one,14 and there is nothing that suggests the informality
between Judy and Larson makes the relationship less so. We
conclude that because Larson was Judy’s attorney, he has the
burden to show that the gift from Judy was fair.
We conclude that Larson has met his burden. As the district
court noted, Judy was herself a lawyer. She did not suffer
from any diminished mental capacity and was not elderly or
incapacitated. She understood the consequences of her desig-
nation, as is evidenced by exhibit 158.
In addition, at the time Judy first contacted Larson regarding
the American Family policy, she had already also engaged the
services of another lawyer for estate planning purposes. She
did not seek Larson’s advice with regard to the drafting of the
unexecuted trust or with respect to the change in beneficiary
on the American Family policy. Larson did not seek the des-
ignation as beneficiary and was unaware of it until after the
designation was made. And because Larson had done much
uncompensated legal work for Judy, the designation seemed
reasonable to Larson.
Of course, as counsel for Larson himself noted at oral argu-
ments, it would have been preferable if Larson had simply

13
Neb. Ct. R. of Prof. Cond. Scope, comments 14 and 20.
14
Gonzalez v. Union Pacific RR. Co., 282 Neb. 47, 803 N.W.2d 424 (2011).
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told Judy to obtain independent legal advice regarding the
designation. Indeed, that would be the best practice in such
situations. But on these facts, Larson’s failure to do so does
not defeat the designation.
Moreover, we note that Gallner essentially argues that
Larson violated the disciplinary rules applicable to Larson as
an attorney, and therefore breached a duty to Judy. But as we
note above, the rules are designed to provide guidance and “not
designed to be a basis for civil liability.”
[10] Gallner next asserts that Larson breached his fidu-
ciary duty when he committed professional malpractice. In a
civil action for legal malpractice, a plaintiff alleging profes-
sional 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 cli-
ent.15 When a plaintiff asserts attorney malpractice in a civil
case, the plaintiff must show that he or she would have been
successful in the underlying action but for the attorney’s
negligence.16
But there is simply no evidence of an employment relation-
ship regarding estate matters upon which to base a malpractice
claim. Larson plainly did not represent Judy on any estate plan-
ning matter. Nor can Gallner show a neglect of duty. We con-
cluded above that Larson showed on these facts the designation
of him as beneficiary was fair. Finally, Gallner cannot show
any loss, because as noted above, Judy’s father, not Jordan
or the estate, was the contingent beneficiary on the American
Family policy. We find no merit to this argument.

(b) Trustee
Gallner also argues that Larson breached the fiduciary duty
he owed to Judy as trustee of her trust. Gallner contends that

15
Harris v. O’Connor, 287 Neb. 182, 842 N.W.2d 50 (2014).
16
Id.
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an oral trust was created for which Larson was the trustee and
that the funds designated to Larson were actually given to
him as trustee for Jordan and Makenzie.
But the evidence does not support the creation of a trust,
oral or otherwise. There is evidence of a 1999 trust for which
Larson was listed as trustee. But Larson testified that he
informed Judy that he could not serve as trustee, and in fact,
the 1999 trust was never executed. There is also evidence of a
testamentary trust from a 2007 will for which Larson was listed
as trustee. But that will was also never executed. Testimony
from the attorney who drafted that will suggests that he was
not fully informed of the existence of the assets now at issue
in this appeal.
Finally, the designations themselves refute the assertion that
Larson was given this property as a trustee. The American
Family policy names the primary beneficiary as Larson, a
“family friend.” The Unum policy and Fidelity Investments
account listed the primary beneficiary as Larson, a “friend/
atty.” At the time Judy made Larson the beneficiary to the
American Family policy, she also sent him the note inform-
ing him that he was the “straight-up beneficiary” and that
“[i]t’s yours.”
And though the district court may have found that prior to
Judy’s death Larson was aware of the 2007 will, the district
court also found that Jordan’s
recollection [that Larson informed him that Judy left
a will/trust] is clearly not specific enough to support
the conclusion that [Judy] had declared her intention
to create a trust from the Unum policy and the Fidelity
account. Larson’s knowledge that [Judy] may have a will
and he may be a trustee is not evidence of [Judy’s] intent
to create an oral trust with the Unum policy proceeds or
the Fidelity account.
To the extent that the district court was making credibil-
ity determinations regarding Jordan’s, Gallner’s, and Larson’s
conflicting testimony, we defer to those determinations. And
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upon our de novo review, we agree with the district court that
the record supports the conclusion that there was no oral trust
created in this case. Moreover, Larson engaged in no fraud
or misrepresentation such that the imposition of a construc-
tive trust would be appropriate or necessary. Nor did Larson
unlawfully convert the property, as he was the designated ben-
eficiary of the proceeds. There is no merit to Gallner’s argu-
ment on this point.
Gallner’s assignments of error are without merit.

VI. CONCLUSION
The decision of the district court is affirmed.
A ffirmed.
Stephan and McCormack, JJ., not participating.