Jorgensen v. State National Bank & Trust Co.

583 N.W.2d 331, 255 Neb. 241, 1998 Neb. LEXIS 201
CourtNebraska Supreme Court
DecidedAugust 21, 1998
DocketS-97-297
StatusPublished
Cited by55 cases

This text of 583 N.W.2d 331 (Jorgensen v. State National Bank & Trust Co.) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jorgensen v. State National Bank & Trust Co., 583 N.W.2d 331, 255 Neb. 241, 1998 Neb. LEXIS 201 (Neb. 1998).

Opinions

Connolly, J.

This appeal presents a question whether “retirement planners” are “professionals” within the meaning of Neb. Rev. Stat. § 25-222 (Reissue 1995). We conclude that the retirement planners in the instant case are not professionals and that they did not render professional services; therefore, we reverse, and remand for further proceedings.

BACKGROUND

State National Bank and Trust Company (Bank) was the custodian of Kenneth Jorgensen’s individual retirement account [242]*242(IRA). Bank’s employees rendered certain advice to Jorgensen concerning his IRA that resulted in the disqualification of Jorgensen’s IRA by the Internal Revenue Service. Jorgensen subsequently filed a petition in the district court for Wayne County against Bank for negligent misrepresentation, fraudulent representation, negligence, breach of good faith, and unfair and deceptive acts. Bank filed a motion for summary judgment, contending that Jorgensen’s cause of action was barred by the applicable statute of limitations. The issue was whether Bank’s employees were professionals rendering professional services pursuant to § 25-222, Nebraska’s professional negligence statute.

The evidence indicates that Thomas McClain, Bank’s senior trust officer, and Lori Bebee, an assistant trust officer, were involved in rendering advice to Jorgensen concerning his IRA. McClain stated that there were no written policies or procedures concerning Bank’s IRA’s. When additional information was required concerning an IRA, McClain contacted legal counsel. Bank did not have any policy requiring anyone to review an IRA to ensure that it was in compliance with the rules and regulations concerning IRA’s; rather, Bank’s employees relied on “Banker Assistance Forms.” McClain stated that he sometimes reviewed accounts based on “curiosity.”

Bebee stated that the only role assumed by Bank in handling an IRA was to “fill out the forms.” She had no knowledge as to whether Bank’s employees maintained notes or records concerning conferences they may have had with IRA holders. Further, Bebee stated that there were no documents that could be provided to an IRA holder to explain the holder’s IRA.

Bank’s trust department employees were not licensed in any manner concerning retirement planning. McClain had held a securities dealer license, but he relinquished it when he came to work at Bank. McClain had attended 2 years of college. He had also attended seminars dealing with IRA’s. However, he had only “limited” experience in the investments area prior to working at Bank. Bebee had attended a school of commerce for 1 year, taking courses in the secretarial area. She had also attended seminars, but stated that Bank did not require her to [243]*243attend them on a yearly basis, nor had she attended such seminars annually.

The district court, without analysis, concluded that Bank’s employees were professionals and, therefore, that § 25-222 applied. Because the district court concluded that Jorgensen’s petition was not filed within the time specified by § 25-222, Bank’s summary judgment motion was sustained.

ASSIGNMENTS OF ERROR

Jorgensen asserts that the trial court erred in (1) determining that Nebraska’s professional negligence statute of limitations applied; (2) finding that the last prohibited transaction in Jorgensen’s IRA occurred on May 23, 1993, and that Jorgensen discovered the problems with the IRA not later than March 11, 1994, thereby barring Jorgensen’s claim pursuant to § 25-222; and (3) finding that the continuous relationship doctrine did not apply.

SCOPE OF REVIEW

Which statute of limitations applies is a question of law that an appellate court must decide independently of the conclusion reached by the trial court. PSB Credit Servs. v. Rich, 251 Neb. 474, 558 N.W.2d 295 (1997).

ANALYSIS

Bank contends that Jorgensen’s petition admitted that Bank’s employees were professionals and that the admission is dispositive of this appeal. Jorgensen’s petition stated that he “relied upon the investment advice offered by the Bank for the reason that the employees of the Bank were either trust officers or other professionals who professed to have a specific knowledge regarding IRA accounts and Bank was a qualified custodian for retirement accounts.” Jorgensen’s petition also stated that Bank had “held itself out as possessing special skill, knowledge, experience, and expertise regarding investments and provided its customers with advice concerning investments to be held, individual retirement accounts, and other accounts.”

It is true that “[a] judicial admission is a formal act done in the course of judicial proceedings which is a substitute for evi[244]*244dence, thereby waiving or dispensing with the production of evidence by conceding for the purpose of litigation that the proposition of fact alleged by the opponent is true.” (Emphasis supplied.) U S West Communications v. Taborski, 253 Neb. 770, 784, 572 N.W.2d 81, 91 (1998). However, whether or not Bank’s employees were professionals within the meaning of § 25-222 is an issue of law, not fact. A party cannot judicially admit conclusions of law in the pleadings — pleadings admit only facts. See Christianson v. Educational Serv. Unit No. 16, 243 Neb. 553, 501 N.W.2d 281 (1993). Accordingly, we must determine, as a matter of law, whether Bank’s employees were professionals pursuant to § 25-222.

Section 25-222 states:

Any action to recover damages based on alleged professional negligence or upon alleged breach of warranty in rendering or failure to render professional services shall be commenced within two years next after the alleged act or omission in rendering or failure to render professional services providing the basis for such action; Provided, if the cause of action is not discovered and could not be reasonably discovered within such two-year period, then the action may be commenced within one year from the date of such discovery or from the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; and provided further, that in no event may any action be commenced to recover damages for professional negligence or breach of warranty in rendering or failure to render professional services more than ten years after the date of rendering or failure to render such professional service which provides the basis for the cause of action.

This court addressed § 25-222 in Educational Service Unit No. 3 v. Mammel, O., S., H. & S., Inc., 192 Neb. 431, 222 N.W.2d 125 (1974), wherein we held, without analysis, that the statute applied to retirement planners.

Subsequently, in Taylor v. Karrer, 196 Neb. 581, 244 N.W.2d 201

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Bluebook (online)
583 N.W.2d 331, 255 Neb. 241, 1998 Neb. LEXIS 201, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jorgensen-v-state-national-bank-trust-co-neb-1998.