Article by Joe Garin and Jessica Green Published in ABA eNewsletter

Jessica Green

Jessica Green

Joe-Garin_cropped

Joe Garin

Issue preclusion is only applicable where an issue is actually and necessarily litigated.

Frei v. Goodsell, No. 58391, 129 Nev., Adv. Op. 43 (July 3, 2013)

A recent case in the Nevada Supreme Court provides two noteworthy holdings. In Frei v. Goodsell, appellant Eric Frei (“Appellant Frei”) challenged the district court’s refusal to apply the doctrine of issue preclusion and its application of the parol evidence rule in an attorney malpractice action.

Before the malpractice action, Appellant Frei sued the trustee of his deceased wife’s estate claiming the trustee improperly transferred his personal assets into her trust. In that trust action, Frei successfully sought to disqualify respondent Daniel Goodsell, (“Attorney Goodsell” or “Respondent Goodsell”) the attorney that prepared the trust documents, from representing the trustee, based on the district court’s conclusion that an attorney–client relationship previously existed between Frei and Goodsell and thereby created a conflict of interest.

Following resolution of the trust action, Appellant Frei sued Attorney Goodsell for malpractice claiming Goodsell failed to verify Frei’s intentions before preparing the trust documents for his signature.

Appellant Frei asserted, and maintained on appeal, the doctrine of issue preclusion prevented Attorney Goodsell from denying the existence of an attorney–client relationship with Frei in the legal malpractice lawsuit because he had been disqualified from representing the trustee in the previous trust action. Frei also challenged the district court’s application of the parol evidence rule to preclude evidence of Frei’s intent in executing a number of unambiguous documents prepared by Goodsell…click here for the full article as published in the July 2013 issue of the LPL eAdvisory, an eNewsletter from the American Bar Association’s Standing Committee on Lawyers’ Professional Liability.