Mai v. German
983 N.W.2d 114
Neb.2023Background
- From 1999–2012 Mai (individually and via MM NE LLC) purchased contiguous parcels in Dawes County and used Janice German for title work.
- German was a registered abstracter and a title insurance agent; she performed record searches and issued title commitments for Mai’s purchases.
- German failed to discover an 1887 road petition in county road records; Mai later built a private driveway costing over $100,000.
- In 2016 a county determination (aided by German) found a public road across Mai’s property; Mai sued the county to quiet title and deposed German on Nov. 20, 2017.
- Mai sued German for negligence on Aug. 30, 2019, alleging failures in abstracting; the district court treated the claim as professional negligence, applied the 2-year limitations in Neb. Rev. Stat. § 25-222, found the claim time-barred (discovery by Nov. 2017) and granted summary judgment.
- Mai appealed, arguing German acted as a title agent (not an abstracter), abstracters are not "professionals," or alternatively the services were not "professional services" under § 25-222.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether German’s work was abstracting or merely title-agent work | Mai: German acted as a title agent, not performing abstracter services | German: her searches and reports were abstracter work (she was a registered abstracter) | Court: evidence shows German performed abstracter duties; no genuine fact issue |
| Whether abstracters qualify as "professionals" under § 25-222 | Mai: abstracters do not meet the Wehrer factors and so § 25-222 shouldn't apply | German: statute and regulatory scheme show abstracters meet the professional factors | Court: abstracters satisfy Wehrer factors; Cooper v. Paap reaffirmed; § 25-222 applies |
| Whether the services at issue were "professional services" under § 25-222 | Mai: even if abstracter, these acts were not "professional services" subject to § 25-222 | German: title searches/abstracting are professional services regulated by statute and board standards | Court: the nature and circumstances show abstracting is a professional service under § 25-222 |
| Whether Mai’s suit was timely under § 25-222 discovery rule | Mai: action filed within allowable time (argued discovery later or different statute applies) | German: Mai discovered the claim by her Nov. 2017 deposition; suit filed Aug. 2019 is untimely | Court: discovery occurred by Nov. 2017; action filed in 2019 is time-barred; summary judgment affirmed |
Key Cases Cited
- Cooper v. Paap, 10 Neb. App. 243, 634 N.W.2d 266 (2001) (Court of Appeals held abstracters are professionals for § 25-222 purposes)
- Wehrer v. Dynamic Life Therapy & Wellness, 302 Neb. 1025, 926 N.W.2d 107 (2019) (articulated multi-factor test for what constitutes a "profession" under § 25-222)
- Heyd v. Chicago Title Ins. Co., 218 Neb. 296, 354 N.W.2d 154 (1984) (distinguished abstracter duties and recognized tort liability for inadequate abstracts)
- Bonness v. Armitage, 305 Neb. 747, 942 N.W.2d 238 (2020) (explained discovery concept under statutes of limitations)
- Carrizales v. Creighton St. Joseph, 312 Neb. 296, 979 N.W.2d 81 (2022) (summary judgment standard cited on appeal)