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https://www.courtlistener.com/api/rest/v3/opinions/8487145/ | IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John W. Pague, :
Petitioner :
:
v. : No. 297 C.D. 2022
:
Capital Area Transit Authority :
(Workers’ Compensation :
Appeal Board), :
Respondent : Submitted: August 12, 2022
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE CEISLER FILED: November 18, 2022
John W. Pague (Claimant) petitions this Court, pro se, for review of the
January 21, 2022 order of the Workers’ Compensation Appeal Board (Board), which
dismissed Claimant’s appeal from the decision of a workers’ compensation judge
(WCJ). The WCJ denied Claimant’s claim and penalty petitions after concluding
that Claimant did not suffer a compensable work injury. The Board held that
Claimant’s appeal failed to raise any issues with the requisite specificity and,
therefore, those issues were waived. After review, we affirm.
I. Background
On November 6, 2019, Claimant hit a large pothole while driving a bus in the
course of his employment with the Capital Area Transit Authority (Employer).
Certified Record (C.R.), Item No. 2. Following this incident, Claimant filed a claim
petition, seeking total disability benefits from December 15, 2019, and ongoing, for
an alleged aggravation of preexisting neck and back pain. Id. Claimant also filed a
penalty petition on the basis that Employer violated the Workers’ Compensation Act
(Act)1 when it failed to timely accept or deny liability for Claimant’s alleged work
injury. C.R., Item No. 5. Employer denied the allegations in both the claim and
penalty petitions. C.R., Item Nos. 4, 7. In support of his claim and penalty petitions,
Claimant testified live before the WCJ and presented a narrative report from his
treating physician, Stephen Wolf, M.D. Employer presented the deposition
testimony of its medical expert, Raymond Dahl, D.O., who conducted independent
medical examinations (IME) of Claimant in 2017 as part of a 2016 workers’
compensation claim Claimant filed against Employer (2016 Claim) and who
conducted an April 1, 2020 IME in the instant matter. Employer also presented the
deposition testimony of Brianna Holmes, one of Employer’s human resources (HR)
managers.
A. Claimant’s Evidence
Claimant testified that the November 6, 2019 work incident occurred when
one of the right tires of his bus hit a pothole. C.R., Item No. 14, Notes of Testimony
(N.T.), 2/12/20, at 18. The impact cracked the windshield of the bus. Id. Claimant
reported the incident to Employer and notified his dispatcher that the impact caused
pain in his neck, lower back, and right arm. Id. at 20, 22, 24; C.R., Item No. 20.
Claimant acknowledged that he attended physical therapy prior to November
6, 2019, to address preexisting issues with his neck, lower back, and right arm, but
he asserted that the November 6, 2019 work incident caused a dramatic increase in
his symptoms, including numbness in his right arm. N.T., 2/12/20, at 24-25.
Following a December 4, 2019 magnetic resonance imaging (MRI) study, Claimant
1
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
2
underwent a cervical fusion on December 16, 2019. Id. at 29. Claimant denied that
surgery had been scheduled prior to the November 6, 2019 work incident. Id. at 28.
During cross-examination, Claimant acknowledged that he underwent a
lumbar laminectomy in 2000, and he experienced numbness in his right arm in 2016.
Id. at 40, 45. Claimant agreed that he received treatment in 2018 and 2019 for lower
back and neck pain and for right arm numbness. Id. at 46, 48. He maintained,
however, that he did not receive a recommendation for surgery until after the
November 6, 2019 work incident occurred. Id. at 50. Claimant conceded that he
completed a medical history screening form on July 25, 2019, for purposes of back
surgery and that his treating physician, Dr. Wolf, considered neck surgery an option
if conservative treatment failed to resolve Claimant’s symptoms. Id. at 53. He
denied having discussions about future neck surgery with anyone from Employer’s
HR department prior to November 6, 2019. Id. at 51. At a subsequent hearing before
the WCJ, Claimant testified that conservative treatment did not improve his
symptoms, which worsened after the November 6, 2019 work incident. C.R., Item
No. 18, N.T., 1/21/21, at 13-14. Claimant stated that his neck was “doing very well,”
post-surgery. Id. at 15. Claimant returned to his full-duty position on April 13, 2020.
C.R., Item No. 17, N.T., 12/30/20, at 14.
Dr. Wolf acknowledged in his narrative report that Claimant had preexisting
issues with his cervical and lumbar spine. C.R., Item No. 21. The November 6,
2019 work incident prompted Dr. Wolf to order an MRI, which documented “severe
degeneration from C5-C7, with stenosis . . . .” Id. Dr. Wolf opined that Claimant
suffered a whiplash injury as a result of the November 6, 2019 work incident, which
exacerbated Claimant’s preexisting condition. Id.
3
B. Employer’s Evidence
Dr. Dahl testified at an October 23, 2020 deposition that he conducted IMEs
of Claimant on January 25, 2017, and November 21, 2017, as part of Employer’s
defense to the 2016 Claim, which alleged that Claimant sustained work-related
injuries to his lower back, neck, legs, hands, and feet. C.R., Item No. 36, Dahl Dep.
at 7-8; C.R., Item No. 29.2 For purposes of the instant claim, Dr. Dahl conducted an
IME of Claimant on April 1, 2020. Dahl Dep. at 8. Claimant advised Dr. Dahl at
the April 1, 2020 IME that he was injured after hitting a “large pothole” while
driving a bus, causing pain in Claimant’s back and neck. Id. at 10.
Dr. Dahl reviewed Claimant’s medical records as part of the IME and he
understood that Claimant treated with Dr. Wolf for neck and lower back pain prior
to the November 6, 2019 work incident. Id. at 12. Based on his review of the
medical records, Dr. Dahl opined that Claimant suffered from multi-level
degenerative disc disease in his cervical spine with significant disc space collapse
and spondylolisthesis and with varying degrees of root entrapment at most levels of
the cervical spine. Id. at 8-9. Claimant also suffered from multilevel degenerative
disc disease in his lumbar spine. Id. at 9.
X-rays of Claimant’s lumbar spine that predated the November 6, 2019
incident revealed “very significant degenerative disc disease” throughout the lumbar
spine. Id. at 17. A June 11, 2019 computerized tomography (CAT) scan of
Claimant’s cervical spine showed the presence of bony spurring and bulging discs
that caused compression of the nerve roots and the cervical spine, as well as
2
The WCJ in the 2016 Claim rejected Claimant’s testimony that his neck and back pain
stemmed from driving a bus over speedbumps and potholes, as Claimant’s medical records
demonstrated he suffered from chronic back pain. C.R., Item No. 29, Finding of Fact (F.F.) No.
8.
4
significant stenosis at C5-C6 and C6-C7. Id. at 18. The findings in Claimant’s
December 4, 2019 MRI were essentially the same as those documented in MRIs
from July 30, 2019, and from 2017. Id. at 13, 18. Claimant’s December 4, 2019
MRI contained no evidence of trauma, such as edema or inflammation, or acute
injury that could be connected with trauma. Id. at 20. Overall, Dr. Dahl believed
that the changes documented in Claimant’s diagnostic studies were all degenerative
in nature. Id.
Dr. Dahl also reviewed a video taken from the bus when the November 6,
2019 work incident occurred, and he observed that the motion of the bus hitting the
pothole would have been “more of a compression type mechanism[,]” as opposed to
a “whiplash type of mechanism” or traumatic flexion or extension. Id. at 23. Based
on the physical examinations Dr. Dahl conducted for the 2017 and April 1, 2020
IMEs, his review of Claimant’s medical records, and the November 6, 2019 video,
Dr. Dahl opined that Claimant did not sustain an injury to his neck or low back as a
result of the November 6, 2019 work incident, or any aggravation of his preexisting
neck and lower back conditions. Id. at 23-24. Dr. Dahl did not believe the
November 6, 2019 work incident factored in Claimant’s need for a cervical fusion.
Id. at 24. Dr. Wolf’s records indicated that he recommended a cervical fusion and
discectomy on July 25, 2019, with a tentative surgery date of November 18, 2019.
Id. at 24, 26-27, 33. While Dr. Dahl felt that the treatment Claimant received for his
neck and lower back conditions was reasonable and necessary, it was not
necessitated by the November 6, 2019 work incident. Id. at 27. Dr. Dahl opined
that an increase in symptomology was a subjective complaint, and he would expect
any claimant in a workers’ compensation matter to complain of worsening
symptoms. Id. at 31-32.
5
Ms. Holmes testified that she met with Claimant in late July or early August
2019 to discuss the 2016 Claim and Claimant’s anticipated neck surgery. C.R., Item
No. 16, 11/4/20, at 21, C.R., Item No. 29. She understood that Claimant’s pain
symptoms related to the 2016 Claim and predated the November 6, 2019 work
incident. N.T., 11/4/20, at 24.
C. WCJ’s Decision
The WCJ circulated a decision on June 7, 2021, denying Claimant’s claim and
penalty petitions. C.R., Item No. 8. The WCJ credited Claimant’s testimony
regarding the November 6, 2019 incident, as well as his testimony that the
conservative treatment received prior to the November 6, 2019 work incident
provided no benefit and that neck surgery was considered an option prior to
November 6, 2019. Id., F.F. No. 61. The WCJ also credited Ms. Holmes testimony
that neck surgery was considered in July 2019, as it corroborated Claimant’s
testimony and Dr. Dahl’s testimony that Dr. Wolf recommended surgery on July 25,
2019. F.F. No. 62.
The WCJ rejected Dr. Wolf’s opinions as less credible than Dr. Dahl’s, in part
because Dr. Wolf’s narrative report only addressed Claimant’s December 4, 2019
MRI. F.F. No. 63(b). Dr. Wolf’s report failed to discuss Claimant’s MRIs from
2017 or July 30, 2019 and compare the results to the December 4, 2019 MRI. Id.
Dr. Dahl, conversely, discussed all three MRIs and testified to the lack of changes
documented therein. Id. Dr. Wolf’s report did not acknowledge that Claimant was
a surgical candidate prior to November 6, 2019, in the event that conservative
treatment failed. F.F. No. 63(a). Ultimately, because Dr. Wolf’s testimony was
discredited, the WCJ concluded that Claimant failed to meet his burden of
establishing that he suffered a compensable work injury. Conclusion of Law (C.L.)
6
No. 2. As the WCJ did not award benefits under the claim petition, the WCJ declined
to award penalties. C.L. No. 4.
D. Board’s Order and Opinion
Claimant, no longer represented by counsel, filed an appeal with the Board,
stating that he wished to preserve his right to appeal while seeking an attorney to
represent him. C.R., Item No. 9. Regarding the grounds for his appeal, Claimant
simply argued that “[t]here [are too] many errors of the [WCJ’s] decisions in this
work injury case.” C.R., Item No. 9.
The Board dismissed Claimant’s appeal on the basis that it failed to raise any
issues with specificity. C.R., Item No. 11 at 2. Although the brief Claimant filed
with the Board3 suggested that the WCJ should not have credited the testimony of
Dr. Dahl, and argued that the WCJ’s decision contained factual errors, the appeal
itself failed to properly preserve any issues, which the Board deemed waived. Id.
Even had Claimant preserved any issues for appeal, the Board concluded that the
WCJ’s decision was supported by substantial, competent evidence, as the WCJ
rejected Claimant’s medical evidence and Claimant was unable to meet his burden
of establishing that he suffered a work-related injury on November 6, 2019. Id. at
3. Finally, the Board held that, in the absence of a compensable work injury, the
WCJ did not err in failing to award penalties.
This appeal followed.4
3
The brief Claimant filed with the Board does not appear in the record filed with this Court.
4
Our review is limited to determining whether the WCJ’s findings of fact were supported
by substantial evidence, whether an error of law was committed, or whether constitutional rights
were violated. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704; Phoenixville Hosp.
v. Workers’ Comp. Appeal Bd. (Shoap), 81 A.3d 830, 838 (Pa. 2013).
7
II. Discussion
On appeal, Claimant challenges the WCJ’s findings and credibility
determinations regarding where, and under whose authorization, Claimant received
medical care, whether the WCJ properly credited the medical opinions of Dr. Dahl
over the opinions of Claimant’s medical providers, and whether Claimant’s surgery
was scheduled for November 18, 2019, or was merely “anticipated.” Claimant’s Br.
at 6. Claimant requests that this Court reverse the WCJ’s decision denying him
benefits under the Act. He does not address the Board’s order dismissing his appeal.
Section 111.11(a)(2) of the Special Administrative Rules of Practice and
Procedure before the Board (Board Rules) provides that an appeal filed with the
Board must contain
[a] statement of the particular grounds upon which the
appeal is based, including reference to the specific
findings of fact which are challenged and the errors of law
which are alleged. General allegations which do not
specifically bring to the attention of the Board the issues
decided are insufficient.
34 Pa. Code § 111.11(a)(2). The Board’s appeal form, LIBC-25/26, provides space
where an appellant should allege which findings of fact made by a WCJ are in error
and unsupported by substantial evidence, which errors of law were committed, and
the reasons why a WCJ’s decision fails to conform to the provisions of the Act.5
Where a claimant has failed to raise an issue in any manner before the Board, that
issue is waived. Starr Aviation v. Workers’ Comp. Appeal Bd. (Colquitt), 155 A.3d
1156, 1162 (Pa. Cmwlth. 2017).
5
See Pa. Dep’t of Lab. & Indus., Rules For Appealing A [WCJ’s] Decision to the [Board].
https://www.dli.pa.gov/Businesses/Compensation/appeals/Documents/licb-2526.pdf., (last visited
Nov. 18, 2022).
8
Claimant’s LIBC-25/26 merely alleges that “[t]here [are] to[o] many errors of
the [WCJ’s] decisions in this work injury case.” C.R., Item No. 9. Additionally,
Claimant states that he “wish[es] to preserve [his] right to appeal this case while
seeking an attorney to represent [him] in this matter[,]” Id. Claimant’s general
allegations of error on the WCJ’s part, and his desire to preserve the right to appeal
while seeking legal representation, do not absolve Claimant of the obligation to
comply with the requirements of Section 111.11(a)(2). Accordingly, we conclude
that the Board did not err in dismissing Claimant’s appeal based on his failure to
raise any issues with specificity.
We further conclude that Claimant waived the issues raised in his petition for
review, as those issues were not raised before the Board. Rule 1551(a) of the Rules
of Appellate Procedure6 (Rule 1551(a)) provides that only questions raised before
the government unit shall be heard or considered on appeal, with limited exceptions
that are not implicated here. It is well established that an issue not raised before the
Board cannot be raised before this Court for the first time on appeal. Hall v.
Workers’ Comp. Appeal Bd. (Am. Serv. Grp.), 3 A.3d 734, 744 n.18 (Pa. 2010).
Claimant’s petition for review alleges, for the first time, the insufficiency of specific
findings rendered by the WCJ.7 These enumerated findings do not appear in the
notice of appeal Claimant filed with the Board.
Even if Claimant had challenged those findings in his appeal, Claimant has
failed to support the arguments in his brief with pertinent legal authority, as required
by Rule 2119(a) of the Pennsylvania Rules of Appellate Procedure (Rule 2119(a)),8
6
Pa.R.A.P. 1551(a).
7
Claimant specifically challenges F.F. Nos. 9, 13-14, 18, 21, 31, 34, 41-44, 47-49, 61-62.
8
Pa.R.A.P. 2119(a).
9
which relevantly requires that an appellate brief include “such discussion and
citation of authorities as are deemed pertinent.” This Court has repeatedly held that
we will not consider the merits of an issue that is not properly raised and developed
in a brief. Am. Rock Mech., Inc. v. Workers’ Comp. Appeal Bd. (Bik & Lehigh
Concrete Tech.), 881 A.2d 54, 56 (Pa. Cmwlth. 2005). Arguments that are not fully
developed in a brief will be deemed waived. Beaver Valley Slag, Inc. v. Marchionda
(Workers’ Comp. Appeal Bd.), 247 A.3d 1212, 1221 (Pa. Cmwlth. 2021). The
argument portion of Claimant’s brief merely paraphrases the issues presented,
without more. As a result, we conclude that those issues are waived.
For all the above reasons, we affirm the Board’s order.
____________________________
ELLEN CEISLER, Judge
10
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
John W. Pague, :
Petitioner :
:
v. : No. 297 C.D. 2022
:
Capital Area Transit Authority :
(Workers’ Compensation :
Appeal Board), :
Respondent :
ORDER
AND NOW, this 18th day of November, 2022, the January 21, 2022 order of
the Workers’ Compensation Appeal Board is hereby AFFIRMED.
____________________________
ELLEN CEISLER, Judge | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487129/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/18/2022 08:06 AM CST
- 405 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 405
Suzette D. Dutcher, appellant,
v. Nebraska Department of
Correctional Services, appellee.
___ N.W.2d ___
Filed September 9, 2022. No. S-21-740.
1. Summary Judgment: Appeal and Error. An appellate court affirms a
lower court’s grant of summary judgment if the pleadings and admitted
evidence show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts and that
the moving party is entitled to judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, an appellate court views
the evidence in the light most favorable to the party against whom the
judgment was granted, and gives that party the benefit of all reasonable
inferences deducible from the evidence.
3. Judgments: Appeal and Error. Statutory interpretation is a question of
law. When reviewing questions of law, an appellate court has an obliga-
tion to resolve the questions independently of the conclusion reached by
the trial court.
4. Workers’ Compensation: Jurisdiction: Legislature. As a statutorily
created court, it is the role of the Legislature to determine what acts fall
within the Workers’ Compensation Court’s exclusive jurisdiction.
5. Workers’ Compensation: Legislature. The Nebraska Workers’
Compensation Act creates rights which did not exist at common law,
and the Legislature may place such restrictions thereon as it sees fit.
6. Statutes. Statutes relating to the same subject matter are to be construed
together so as to maintain a consistent and sensible scheme.
7. ____. Statutory interpretation begins with the text, and the text is to be
given its plain and ordinary meaning.
8. Statutes: Legislature. It is a fundamental canon of statutory construc-
tion that words generally should be interpreted as taking their ordinary
meaning at the time the Legislature enacted the statute.
- 406 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 405
9. ____: ____. When the Legislature uses legal terms of art in statutes,
such terms should be construed and understood according to their
accepted legal meaning.
10. Statutes: Appeal and Error. An appellate court will not resort to inter-
pretation of statutory language to ascertain the meaning of words which
are plain, direct, and unambiguous.
11. ____: ____. An appellate court is not at liberty to add language to the
plain terms of a statute to restrict its meaning.
12. Statutes: Courts: Appeal and Error. An appellate court does not sit as
a superlegislature to review the wisdom of legislative acts.
13. Fair Employment Practices: Discrimination: Intent. Employment dis-
crimination laws such as those found in the Nebraska Fair Employment
Practice Act have not vested in the Nebraska courts the authority to sit
as super personnel departments reviewing the wisdom or fairness of the
business judgments made by employers, except to the extent that those
judgments involve intentional discrimination.
14. Workers’ Compensation. The Nebraska Workers’ Compensation Act
covers personal injury or death caused to an employee by accident
or occupational disease, arising out of and in the course of his or her
employment, without regard to the negligence of the employer.
15. Workers’ Compensation: Torts: Intent. There is no intentional tort
exception to the Nebraska Workers’ Compensation Act.
16. Workers’ Compensation: Torts. Under the workers’ compensation
statutes, employees give up the complete compensation that they might
recover under tort law in exchange for no-fault benefits that they quickly
receive for most economic losses from work-related injuries and the
employer receives immunity from common-law suit.
17. Workers’ Compensation: Immunity. The reason for an employer’s
immunity is the quid pro quo by which the employer gives up his or her
normal defenses and assumes automatic liability, while the employee
gives up his or her right to common-law verdicts.
18. Workers’ Compensation. When an employee sustains an injury that
arises out of and in the course of his or her employment and such
injury is covered by the Nebraska Workers’ Compensation Act, then
the employee surrenders his or her right to any other method, form, or
amount of compensation or determination thereof for that injury against
his or her employer or the workers’ compensation insurer.
Appeal from the District Court for Red Willow County:
David W. Urbom, Judge. Affirmed.
- 407 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 405
Tanya J. Hansen, of Smith, Johnson, Allen, Connick &
Hansen, for appellant.
Douglas J. Peterson, Attorney General, James A. Campbell,
Solicitor General, and Phoebe L. Gydesen for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
INTRODUCTION
An employee of the Nebraska Department of Correctional
Services (Department) was injured while participating in man-
dated self-defense training. The employee sought and received
workers’ compensation benefits from the time she was injured,
including vocational rehabilitation. The employee was ulti-
mately unable to find a position with the Department that
would accommodate her physical restrictions, and her employ-
ment was terminated. She brought suit against the Department
for wrongful termination on the basis of her disability, in viola-
tion of the Nebraska Fair Employment Practice Act (NFEPA). 1
The district court found that the exclusivity provisions of
the Nebraska Workers’ Compensation Act 2 provide the sole
remedy for the employee against the Department in this situ-
ation, barring the employee’s claim. The employee appeals.
We affirm.
BACKGROUND
Suzette D. Dutcher began working for the Department in
February 2002 as a corporal. In 2009, she changed jobs within
the Department, becoming a chemical dependency counselor.
In 2010, Dutcher became a supervisor of the chemical depen-
dency counselors.
1
See Neb. Rev. Stat. §§ 48-1101 to 48-1125 (Reissue 2021).
2
Neb. Rev. Stat. §§ 48-101 to 48-1,117 (Reissue 2021).
- 408 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 405
Being a supervisor meant that Dutcher’s job became more
administrative, but she still had contact with inmates when
she mediated disagreements between counselors and inmates,
taught classes, and conducted facility walk-throughs as part
of her “officer of the day” duties. Dutcher testified in her
deposition that she was required to maintain certification in
“level 3” pressure point control tactics (PPCT) training. This
training included self-defense techniques such as takedowns,
ground fighting, and kicking. PPCT training was required
yearly, and Dutcher was required to demonstrate different
PPCT techniques that included kicking and kneeling in order
to maintain her certification. PPCT training and certification
was not explicitly listed in the supervisor job description or
in an operational memorandum describing “officer of the
day” duties.
In April 2015, Dutcher suffered an injury to her right knee
while completing PPCT training. Dutcher timely notified the
Department of her injury. Her medical expenses associated
with the injury were covered through the State of Nebraska’s
third-party administrator for workers’ compensation claims.
Dutcher initially engaged in physical therapy, which was
unsuccessful. Dutcher had her first surgery in July 2015.
In September 2015, Dutcher was able to return to her job
with physical restrictions. The physical limitations included
no stooping, twisting, or bending her right knee; no squat-
ting, crawling, or kneeling; no kicking or hitting; and no
running. Because of her physical restrictions, the Department
required Dutcher to have a level 3 PPCT-certified employee
with her when she conducted rounds or any time she interacted
with inmates.
After returning to work, Dutcher had more surgeries in
September 2015, June 2018, and August 2018. Dutcher
received regular payments for temporary total disability start-
ing in August 2015.
- 409 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 405
In September 2016, Dutcher received a letter from the
Department advising her that 1 year had elapsed since work
restrictions had been imposed and that since work restric-
tions remained, pursuant to Department policy, she had 90
days to find a new position or be terminated from her cur-
rent position. After failing to find another position within the
Department that could accommodate her physical restrictions,
Dutcher’s employment was terminated in December 2016. The
Department explained that Dutcher was unable to fulfill the
regular duties of her position. Dutcher admitted in her deposi-
tion that she was not physically capable of performing level 3
PPCT tactics or takedown techniques.
In March 2017, Dutcher was declared by her doctor to be at
maximum medical improvement, with a permanent impairment
rating and permanent work restrictions. Dutcher’s permanent
work restrictions included no lifting over 20 pounds; no stoop-
ing, twisting, bending, squatting, crawling, or kneeling; limits
on the amount of walking, standing, and climbing; and no
physical contact with inmates.
Rather than accepting the workers’ compensation carrier’s
payment to close the claim based on Dutcher’s reaching her
maximum medical improvement, Dutcher elected to exercise
her right to appointment of a vocational rehabilitation coun-
selor. The Workers’ Compensation Court approved Dutcher’s
election to participate in a vocational rehabilitation plan.
Dutcher’s appointed vocational rehabilitation counselor
indicated in her initial report that Dutcher may qualify for
some social services jobs based on Dutcher’s transferable
skills, but that she would not likely earn wages comparable
to what she was making at the time of her injury. After con-
ducting market research regarding Dutcher’s current educa-
tional level and qualifications, the counselor determined that
Dutcher would need to secure additional education within her
field or look at a new field to gain skills for future employ-
ment. Dutcher and her counselor decided the best plan was
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 405
to pursue an associate degree in business administration.
The counselor developed a vocational rehabilitation plan for
Dutcher to obtain such a degree with the expected comple-
tion in May 2021. After approving the plan, the Workers’
Compensation Court ordered the payment of Dutcher’s tuition,
books, and incidentals.
Dutcher completed her vocational rehabilitation in May
2021 by obtaining her degree. However, rather than engage
in the job placement process with her counselor, Dutcher
decided to join a family agricultural business she owns with
her husband.
As of July 2, 2021, Dutcher had received more than $199,000
in workers’ compensation indemnity payments, which included
$1,140 every 2 weeks in temporary total disability, permanent
partial disability benefits, and a $61,275 lump sum payment in
August 2019.
While Dutcher was receiving workers’ compensation dis-
ability payments and engaging in her vocational rehabilitation
plan, she filed a complaint on September 12, 2018, against the
Department, alleging the Department violated the Americans
with Disabilities Act of 1990 and the NFEPA. The Department
removed the case to federal court, where the Americans with
Disabilities Act of 1990 claim was dismissed. The remaining
NFEPA claim was remanded to state court.
Dutcher alleged in relation to her claim under the NFEPA
that because she had fulfilled all material terms and conditions
of employment at all relevant times, the Department’s prof-
fered reason for terminating her employment was pretextual.
She alleged that the real reason the Department terminated
her employment was on the basis of her disability. Dutcher
pointed out that the Department had originally accommodated
her medical restrictions, and she asserted that “[p]erforming
Level 3 PPCT take down techniques and restraints on inmates
was not part of [her] regular job duties.”
The Department’s answer asserted that Dutcher’s fail-
ure to “meet the occupational qualifications required by the
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 405
[Department] would have caused a direct threat which involved
significant risks to the health and/or safety of [Dutcher] and
others in the work place which could not be eliminated by
a reasonable accommodation” and that as such, the termi-
nation of Dutcher’s employment was “consistent with busi-
ness necessity.” Further, the Department asserted that to the
extent Dutcher was denied an accommodation, such denial was
because the accommodation would impose an undue burden
or would have posed a direct threat to the health or safety of
Dutcher or other individuals.
The Department moved for summary judgment on the
basis of the exclusivity provisions of the Nebraska Workers’
Compensation Act. After an evidentiary hearing, the district
court entered an order granting the Department’s motion for
summary judgment. The district court concluded that the exclu-
sivity provisions of the Nebraska Workers’ Compensation Act,
§§ 48-111 and 48-148, barred Dutcher’s NFEPA claim as a
matter of law. Dutcher appeals.
ASSIGNMENTS OF ERROR
Dutcher assigns that the district court erred in determin-
ing her claim was barred by the exclusivity provisions of the
Nebraska Workers’ Compensation Act and, as such, erred in
granting the Department’s motion for summary judgment.
STANDARD OF REVIEW
[1] An appellate court affirms a lower court’s grant of sum-
mary judgment if the pleadings and admitted evidence show
that there is no genuine issue as to any material facts or as
to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter
of law. 3
[2] In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
3
Sundermann v. Hy-Vee, 306 Neb. 749, 947 N.W.2d 492 (2020).
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against whom the judgment was granted, and gives that party
the benefit of all reasonable inferences deducible from the
evidence. 4
[3] Statutory interpretation is a question of law. When
reviewing questions of law, an appellate court has an obliga-
tion to resolve the questions independently of the conclusion
reached by the trial court. 5
ANALYSIS
[4,5] The Workers’ Compensation Court is a statutorily cre-
ated court designed to have jurisdiction over all injuries fall-
ing within the scope of the Nebraska Workers’ Compensation
Act. 6 As a statutorily created court, it is the role of the
Legislature to determine what acts fall within the Workers’
Compensation Court’s exclusive jurisdiction. 7 The Nebraska
Workers’ Compensation Act creates rights which did not exist
at common law, and the Legislature may place such restrictions
thereon as it sees fit. 8
Whether the exclusivity provisions of the Nebraska
Workers’ Compensation Act applied to the facts of this case,
thereby depriving the district court of jurisdiction to hear
Dutcher’s NFEPA action, is a question of law as to the mean-
ing of the relevant provisions of those two legislative acts.
Thus, we begin by setting forth our principles of statutory
construction.
[6-9] Statutes relating to the same subject matter are to be
construed together so as to maintain a consistent and sensible
scheme. 9 However, statutory interpretation begins with the
4
Id.
5
Id.
6
Estate of Teague v. Crossroads Co-op Assn., 286 Neb. 1, 834 N.W.2d 236
(2013).
7
Id.
8
Id.
9
See Grothen v. Grothen, 308 Neb. 28, 952 N.W.2d 650 (2020).
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text, and the text is to be given its plain and ordinary mean-
ing. 10 It is a fundamental canon of statutory construction that
words generally should be interpreted as taking their ordinary
meaning at the time the Legislature enacted the statute. 11 When
the Legislature uses legal terms of art in statutes, such terms
should be construed and understood according to their accepted
legal meaning. 12
[10-12] An appellate court will not resort to interpretation
of statutory language to ascertain the meaning of words which
are plain, direct, and unambiguous. 13 Also, an appellate court
is not at liberty to add language to the plain terms of a statute
to restrict its meaning. 14 An appellate court does not sit as a
superlegislature to review the wisdom of legislative acts. 15
NFEPA
[13] Employment discrimination laws such as those found
in the NFEPA have not vested in the Nebraska courts the
authority to sit as super personnel departments reviewing
the wisdom or fairness of the business judgments made by
employers, except to the extent that those judgments involve
intentional discrimination. 16 The NFEPA states at § 48-1101
that it “is the policy of [Nebraska] to foster the employ-
ment of all employable persons in the state on the basis of
merit . . . and to safeguard their right to obtain and hold
employment without discrimination.” The NFEPA provides at
§ 48-1104(1), in relevant part, that “[i]t shall be an unlawful
10
Nebraska Republican Party v. Shively, 311 Neb. 160, 971 N.W.2d 128
(2022).
11
Id.
12
Clark v. Sargent Irr. Dist., 311 Neb. 123, 971 N.W.2d 298 (2022).
13
Nebraska Republican Party v. Shively, supra note 10.
14
Spratt v. Crete Carrier Corp., 311 Neb. 262, 971 N.W.2d 335 (2022).
15
Gourley v. Nebraska Methodist Health Sys., 265 Neb. 918, 663 N.W.2d 43
(2003).
16
Baker-Heser v. State, 309 Neb. 979, 963 N.W.2d 59 (2021).
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employment practice for an employer . . . to discriminate
against any individual with respect to compensation, terms,
conditions, or privileges of employment, because of such indi-
vidual’s race, color, religion, sex, disability, marital status, or
national origin[.]”
Under § 48-1107.01(1), it is unlawful for a covered entity to
“[d]iscriminate against a qualified individual with a disability
because of the disability of such individual in regard to job
application procedures, the hiring, advancement, or discharge
of employees, employee compensation, job training, and other
terms, conditions, and privileges of employment[.]” Section
48-1102(10)(a) defines “[q]ualified individual with a disabil-
ity” as “an individual with a disability who, with or without
reasonable accommodation, can perform the essential func-
tions of the employment position that such individual holds or
desires” and states that “[c]onsideration shall be given to the
employer’s judgment as to what functions of a job are essen-
tial . . . .” Under § 48-1102(11), “[r]easonable accommodation
shall not include accommodations which the covered entity can
demonstrate require significant difficulty or expense thereby
posing an undue hardship upon the covered entity.”
While the NFEPA establishes an Equal Opportunity
Commission to, among other things, receive, investigate, and
pass upon charges of unlawful employment practices, 17 the
NFEPA provides in § 48-1119(4) that “[a] complainant who
has suffered physical, emotional, or financial harm as a result
of a violation of section 48-1104 or 48-1114 may, at any stage
of the proceedings prior to dismissal, file an action directly in
the district court of the county where such alleged violation
occurred” and that “[t]he district court shall file and try such
case as any other civil action, and any successful complainant
shall be entitled to appropriate relief, including temporary or
permanent injunctive relief, general and special damages, rea-
sonable attorney’s fees, and costs.”
17
See §§ 48-1116 and 48-1117(1).
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The NFEPA does not refer to the Nebraska Workers’
Compensation Act, and it does not contain any provision relat-
ing to exclusivity. The only provision relating to construction
of the act states, “Nothing contained in the [NFEPA] shall be
deemed to repeal any of the provisions of the civil rights law,
any other law of this state, or any municipal ordinance relating
to discrimination because of race, creed, color, religion, sex,
disability, or national origin.” 18
Nebraska Workers’
Compensation Act
[14,15] The Nebraska Workers’ Compensation Act covers
personal injury or death caused to an employee by accident
or occupational disease, arising out of and in the course of his
or her employment, 19 without regard to the negligence of the
employer. 20 Injury and personal injuries “mean only violence to
the physical structure of the body and such disease or infection
as naturally results therefrom.” 21 An accident “means an unex-
pected or unforeseen injury happening suddenly and violently,
with or without human fault, and producing at the time objec-
tive symptoms of an injury.” 22 This court has long held that
there is no intentional tort exception to the Nebraska Workers’
Compensation Act. 23
Section 48-110 states that when an employer and employee
accept the provisions of the Nebraska Workers’ Compensation
Act, by express or implied agreement or as provided in
§ 48-112, the employee shall be compensated according to the
schedule of the act. Section 48-111 provides in relevant part
that “[s]uch agreement or the election provided for in section
18
§ 48-1124.
19
§ 48-101.
20
§ 48-110.
21
§ 48-151(4).
22
§ 48-151(2).
23
Estate of Teague v. Crossroads Co-op Assn., supra note 6.
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48-112 shall be a surrender by the parties thereto of their
rights to any other method, form, or amount of compensation
or determination thereof than as provided in the Nebraska
Workers’ Compensation Act . . . .” Section 48-148 provides
in relevant part that if an employee, or the employee’s depen-
dents, files a claim for a personal injury from an employer sub-
ject to the Nebraska Workers’ Compensation Act, that action
“shall constitute a release to such employer of all claims or
demands at law, if any, arising from such injury.”
[16,17] Workers’ compensation laws reflect a compromise
between employers and employees. 24 Under these statutes,
employees give up the complete compensation that they might
recover under tort law in exchange for no-fault benefits that
they quickly receive for most economic losses from work-
related injuries and the employer receives immunity from com-
mon-law suit. 25 The reason for the employer’s immunity is the
quid pro quo by which the employer gives up his or her normal
defenses and assumes automatic liability, while the employee
gives up his or her right to common-law verdicts. 26
[18] We have said the Nebraska Workers’ Compensation
Act “‘provides the exclusive remedy by the employee against
the employer for any injury arising out of and in the course
of the employment.’” 27 We have explained that § 48-148 of
the Nebraska Workers’ Compensation Act provides that if an
employee’s injury arises out of and in the course of employ-
ment, the employee’s exclusive remedy is against the employer
for workers’ compensation. 28 Thus, we have held:
24
Pittman v. Western Engineering Co., 283 Neb. 913, 813 N.W.2d 487
(2012).
25
See Estate of Teague v. Crossroads Co-op Assn., supra note 6.
26
Pittman v. Western Engineering Co., supra note 24.
27
Bennett v. Saint Elizabeth Health Sys., 273 Neb. 300, 305, 729 N.W.2d 80,
84 (2007).
28
Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917 N.W.2d 435
(2018).
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[W]hen an employee sustains an injury that arises out
of and in the course of his or her employment and such
injury is covered by the Nebraska Workers’ Compensation
Act, then the employee surrenders his or her right to
any other method, form, or amount of compensation or
determination thereof for that injury against his or her
employer or the workers’ compensation insurer. 29
We have elaborated that while an individual can be an employee
of an entity and nevertheless sue that entity in district court
where the particular facts show that the suit in district court
is not covered under or barred by the Nebraska Workers’
Compensation Act, 30 the employee must allege sufficient
facts that, if true, would demonstrate the Nebraska Workers’
Compensation Act does not apply. 31
We have never specifically addressed the exclusivity provi-
sions of the Nebraska Workers’ Compensation Act in the con-
text of a civil claim brought in district court under the NFEPA.
We have, however, found that the exclusivity provisions of the
Nebraska Workers’ Compensation Act applied to various other
civil actions brought in district court, despite plaintiffs’ argu-
ments that the actions were sufficiently distinct from their
workers’ compensation claim to not “aris[e] from such injury.”
These have included actions brought in district court for wrong-
ful death, 32 assault and battery, 33 bystander negligent infliction
of emotional distress, 34 medical malpractice, 35 bad faith relat-
ing to administration of a workers’ compensation claim, 36
29
Ihm v. Crawford & Co., 254 Neb. 818, 821, 580 N.W.2d 115, 118 (1998).
30
Pittman v. Western Engineering Co., supra note 24.
31
Estate of Teague v. Crossroads Co-op Assn., supra note 6.
32
Id.
33
Id.
34
Pittman v. Western Engineering Co., supra note 24.
35
Bennett v. Saint Elizabeth Health Sys., supra note 27.
36
Ihm v. Crawford & Co., supra note 29.
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and violations of “‘the Factory Act[,]’ [Neb. Rev. Stat.]
§§ 48-409 and 48-422, R. R. S. 1943.” 37
For instance, in Pittman v. Western Engineering Co., 38 we
rejected the plaintiff’s argument that his claim for bystander
negligent infliction of emotional distress after witnessing his
wife’s work-related death did not “aris[e] from such injury”
for purposes of § 48-148. The plaintiff argued that his action
did not arise from the personal injury for which he received
workers’ compensation benefits, because, with the exception
of first responders, purely psychological damages are not
recoverable under the definition of “injury” in the Nebraska
Workers’ Compensation Act. Further, the plaintiff argued his
injuries arose separately from the injuries suffered by his wife,
because they resulted solely from his shock of encountering
the scene of her death.
We held that upon accepting payment as a dependent, by
operation of § 48-148, the husband released his wife’s employer
from further claims arising from her injury, and that his action
in district court was barred by the employer immunity found
in § 48-148. We explained that the husband’s claim was barred
by the plain language of “arising from such injury.” We uti-
lized a “rational nexus” test and reasoned that the husband’s
claim “logically ar[ose]” from his wife’s death, because, had
her injury and resultant death not occurred, the husband’s emo-
tional distress claims would not have arisen. 39
37
Edelman v. Ralph Printing & Lithographing, Inc., 189 Neb. 763, 764,
205 N.W.2d 340, 340 (1973). But see, Riesen v. Irwin Indus. Tool Co.,
272 Neb. 41, 717 N.W.2d 907 (2006) (without discussion of exclusivity
remanding for further proceeding tort claim in district court for retaliatory
discharge for filing workers’ compensation claim); Muller v. Tri-State
Ins. Co., 252 Neb. 1, 560 N.W.2d 130 (1997) (exclusivity did not
apply to claim under employer’s underinsured motorist coverage even
though plaintiff widow received compensation from employer’s workers’
compensation carrier for death from automobile accident).
38
Pittman v. Western Engineering Co., supra note 24.
39
Id. at 928, 813 N.W.2d at 498.
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In Bennett v. Saint Elizabeth Health Sys., 40 we held that the
plaintiff’s medical malpractice action was barred by the exclu-
sivity provisions of the Nebraska Workers’ Compensation Act
when she sought to recover for aggravation of an injury that
arose out of and in the course of her employment at a hospital,
which aggravation was allegedly caused by the same hospital
when it negligently performed physical therapy treatment of
the original injury. There was no dispute that the plaintiff was
entitled to workers’ compensation benefits for both the original
injury and the injury sustained during physical therapy, and we
observed there was no inference in the record that the plain-
tiff’s physical therapy was an unnecessary or unreasonable
treatment for her initial injury. We reasoned that because the
plaintiff would not have undertaken the physical therapy “but
for” the original compensable injury to that shoulder, the con-
sequential injury to the left shoulder was related to her employ-
ment, and therefore, it was a covered injury under the Nebraska
Workers’ Compensation Act. 41
We similarly held in Ihm v. Crawford & Co. 42 that an action
in district court to recover for additional injuries caused by a
bad faith delay in providing authorization for treatment was
barred by the exclusivity provisions of the Nebraska Workers’
Compensation Act, disagreeing with the plaintiff’s argument
that the injuries caused by the subsequent intentional tort did
not arise out of his work-related injury. We explained that the
alleged tortious acts were “completely intertwined with the
original injury”:
While the alleged tortious conduct of the appellees, in
refusing to timely authorize needed medical treatment,
may have come after the original injury, the conduct was
not independent of the injury. Rather, the alleged tortious
acts of the appellees were completely intertwined with
40
Bennett v. Saint Elizabeth Health Sys., supra note 27.
41
Id. at 307, 729 N.W.2d at 85.
42
Ihm v. Crawford & Co., supra note 29.
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the original injury, as their acts related directly to an
alleged bad faith delay in authorization of further treat-
ment for the original injury. 43
We observed that the penalties under the act for such bad
faith were limited to attorney fees and thus provided little
deterrence to the bad faith handling of claims; still, it was the
province of the Legislature, not this court, to strengthen the
deterrent effect of administrative penalties within the act as
public policy may dictate. 44
Arising From Such Injury
The statutory scheme dictates that Dutcher and the
Department agreed to be subject to the Nebraska Workers’
Compensation Act. The Department is “such employer” for
purposes of the release provision in § 48-148. There is no
dispute that Dutcher’s knee injury and associated restrictions
for which Dutcher received workers’ compensation benefits—
and which restrictions were the stated reasons the Department
concluded she was unable to fulfill the regular duties of her
position—were the result of an accident arising out of and in
the course of her employment. Dutcher was given vocational
rehabilitation for that injury, which she was eligible for under
§ 48-162.01(3), by being “unable to perform suitable work
for which he or she has previous training or experience,”
as a result of the injury. The question is whether, under the
facts of this case, Dutcher’s discrimination action in district
court under the NFEPA was a claim for compensation “aris-
ing from such injury,” 45 which would constitute “any other
method, form, or amount of compensation or determination [of
compensation].” 46
Dutcher points out there is case law in other jurisdic-
tions holding that the exclusivity provisions of the governing
43
Id. at 826, 580 N.W.2d at 120.
44
Ihm v. Crawford & Co., supra note 29.
45
§ 48-148.
46
§ 48-111.
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workers’ compensation laws do not bar discrimination actions
based on a disability stemming from the personal injury for
which workers’ compensation benefits were obtained. 47 Those
courts reason that statutes barring discrimination provide a
remedy for “intangible injuries which rob a person of dignity
and self-esteem and with eliminating a discriminatory environ-
ment in the workplace that affects not only the victim of dis-
crimination but the entire workforce and the public welfare.” 48
47
See, Mangin v. Westco Security Systems, Inc., 922 F. Supp. 563 (M.D. Fla.
1996); Davis v. Dillmeier Enterprises, Inc., 330 Ark. 545, 956 S.W.2d
155 (1997) (remedies granted to employee on account of injury); City
of Moorpark v. Superior Court, 18 Cal. 4th 1143, 959 P.2d 752, 77 Cal.
Rptr. 2d 445 (1998) (plain language of exclusive remedy provisions of
workers’ compensation law apparently limits those provisions to division
of labor code remedies); Hardaway Management Co. v. Southerland,
977 S.W.2d 910 (Ky. 1998); Daniel v. City of Minneapolis, 923 N.W.2d
637 (Minn. 2019) (on account of such injury); Folan v. State/DCYF, 723
A.2d 287 (R.I. 1999) (right to compensation for injury under chapters
of compensation act, and remedy for injury granted by those chapters,
shall be in lieu of all rights and remedies as to that injury); Gallipo v.
City of Rutland, 173 Vt. 223, 789 A.2d 942 (2001); Messer v. Huntington
Anesthesia Group, Inc., 218 W. Va. 4, 620 S.E.2d 144 (2005) (not
liable to respond in damages at common law or by statute for injury
or death of any employee, however occurring, but injuries caused by
employer’s deliberate intention exempted from workers’ compensation
act); Byers v. Labor and Industry Review Com’n, 208 Wis. 2d 388, 561
N.W.2d 678 (1997) (where such conditions for employer’s liability under
workers’ compensation act exist, right to recovery of compensation shall
be exclusive remedy against employer). See, also, Whitson v. City of
Hoover, 14 So. 3d 98 (Ala. 2009) (age discrimination claim); Claxton
v. Waters, 34 Cal. 4th 367, 96 P.3d 496, 18 Cal. Rptr. 3d 246 (2004)
(sexual harassment); Byrd v. Richardson-Greenshields-Securities, 552 So.
2d 1099 (Fla. 1989) (sexual harassment); Meyers v. Chapman Printing
Co., Inc., 840 S.W.2d 814 (Ky. 1992) (sex discrimination); Cox v.
Glazer Steel Corp., 606 So. 2d 518 (La. 1992) (workers’ compensation
act specifically provides that it does not bar other statutory causes of
action); King v. Bangor Federal Credit Union, 568 A.2d 507 (Me. 1989);
Gunn v. Consolidated Rural Water & Sewer, 839 P.2d 1345 (Okla. 1992)
(retaliatory discharge).
48
Byers v. Labor and Industry Review Com’n, supra note 47, 208 Wis. 2d at
397, 561 N.W.2d at 681-82.
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The court in Daniel v. City of Minneapolis 49 reasoned that
those intangible harms are not “such injury” referred to in
the workers’ compensation laws, which is limited to personal
injury within the coverage of the workers’ compensation acts.
Further, nothing in the civil rights laws of that state indicate
“the Legislature intended an employee’s civil right to be free
from discrimination to hinge on where, when, or how the dis-
ability arose.” 50
But the workers’ compensation statutes relevant to cases
from other jurisdictions rejecting workers’ compensation
exclusivity, vis-a-vis civil rights actions, generally lack the
same “arising from” language found in the Nebraska Workers’
Compensation Act. Nor do the workers’ compensation statutes
in those jurisdictions always include injuries stemming from
an employer’s intentional wrongdoing, 51 as does the Nebraska
Workers’ Compensation Act.
Further, dissenting opinions in those cases point out that
the workers’ compensation laws already provide a remedy for
the refusal to return an injured employee to suitable work and
that even if civil rights laws were meant to remedy different
injuries, the workers’ compensation laws plainly and explicitly
provide that such remedy is exclusive. 52 They also point out
that the quid pro quo balance to be struck is a matter of public
policy; the remedy for any harshness resultant from the rule of
exclusiveness is wholly legislative. 53 Finally, it has been said
that allowing both civil rights actions and workers’ com-
pensation actions to coexist implicates double recovery and
“likely will result in a proliferation of failure-to-accommodate
49
See, e.g., Daniel v. City of Minneapolis, supra note 47.
50
Id. at 650.
51
See Messer v. Huntington Anesthesia Group, Inc., supra note 47.
52
Davis v. Dillmeier Enterprises, Inc., supra note 47 (Newbern, J., dissent
ing). See, also, Daniel v. City of Minneapolis, supra note 47 (Anderson, J.,
dissenting).
53
Daniel v. City of Minneapolis, supra note 47 (Anderson, J., dissenting).
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litigation over workplace injuries” 54—matters that, again, are
best left with the Legislature.
As discussed, we have consistently rejected arguments that
a civil claim in district court did not arise from the workplace
injury, because it stemmed from intentional conduct or because
the nature of the damages incurred were mental rather than
physical. Under the Nebraska Workers’ Compensation Act, the
employee gives up the right to complete compensation.
We have described “arising from” under § 48-148 as “but
for” causation. We said in Pittman v. Western Engineering Co. 55
that “arising from” refers to a “rational nexus.” In other con-
texts, we have understood phrases with “arising” or similar as
referring to “but for” causation, with some caveats. With respect
to “arising out of” employment under § 48-101, we have held
that the test is whether the act is “reasonably incident thereto,
or is so substantial a deviation as to constitute a break in the
employment which creates a formidable independent hazard.” 56
In the context of liability policies, we have interpreted the term
“arising out of” as “ordinarily understood to mean originating
from, growing out of, or flowing from; and requiring only a
‘but for’ causal connection.” 57 In the context of an exemp-
tion to the waiver of sovereign immunity for claims “arising
out of” certain listed intentional torts, we have described the
exemption as applicable under “but for” causation, whenever
the claim stems from, arises out of, is inextricably linked to, is
essential to, and would not exist without one of the underlying
intentional torts—though we have acknowledged there could
be circumstances “‘so attenuated’” from the listed intentional
tort that the claim would not fairly be characterized as arising
54
Id. at 658.
55
Pittman v. Western Engineering Co., supra note 24.
56
Misek v. CNG Financial, 265 Neb. 837, 842, 660 N.W.2d 495, 500 (2003)
(internal quotation marks omitted).
57
See Federated Serv. Ins. Co. v. Alliance Constr., 282 Neb. 638, 649-50,
805 N.W.2d 468, 478 (2011).
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out of it. 58 The Court of Appeals in Hammond v. Nemaha Cty. 59
utilized, in the context of Neb. Rev. Stat. § 81-8,219 (Reissue
1996), Black’s Law Dictionary’s definition of “arise” as “[t]o
spring up, originate, to come into being,” as well as another
court’s explanation that “arising out of” means “causally con-
nected with, not proximately caused by, and that a but for
causation, that is, a cause and result relationship, is enough.” 60
The exclusivity provisions of the Nebraska Workers’
Compensation Act are broadly worded. At the same time,
the NFEPA is silent on its application respecting disabilities
stemming from workplace injuries covered by the Nebraska
Workers’ Compensation Act. Especially in light of our articula-
tion of the broad meaning of similar language, the Legislature
had the ability to clearly exclude from the exclusivity provi-
sions of the Nebraska Workers’ Compensation Act claims like
the case at bar. Yet, it did not do so.
We hold that for purposes of § 48-148, Dutcher’s claimed
discrimination under the NFEPA was a claim “arising from”
the knee injury that was caused by an accident arising out of
and in the course of her employment and, thus, “such injury.”
Therefore, she cannot obtain additional remedies through a
civil action in district court under the NFEPA.
Nothing in this opinion should be interpreted as restrict-
ing an employee’s ability to file a charge with the Equal
Opportunity Commission. And we do not suggest that dis-
crimination is a rational or a logical result of having a per-
sonal injury. However, in this case, there is a sufficient nexus
between the injury Dutcher was given workers’ compensation
for and her civil action under the NFEPA such that the NFEPA
action arose from her workplace injury.
58
See Dion v. City of Omaha, 311 Neb. 522, 541, 973 N.W.2d 666, 682
(2022). Accord Edwards v. Douglas County, 308 Neb. 259, 953 N.W.2d
744 (2021).
59
Hammond v. Nemaha Cty., 7 Neb. App. 124, 581 N.W.2d 82 (1998).
60
Id. at 129, 581 N.W.2d at 87 (internal quotation marks omitted).
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DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 405
Whether there hypothetically may be circumstances so atten-
uated from the work-related injury that a NFEPA claim against
that same employer would not fairly be characterized as aris-
ing from the work-related injury need not be determined here.
Dutcher, through disability payments and vocational rehabilita-
tion, was compensated under the quid quo pro system estab-
lished by the Legislature for the very inability to work that the
Department stated was the reason for firing her.
Regardless of whether that reason was pretextual as Dutcher
claims, the NFEPA claim arises from the personal injury
incurred within the course and scope of her employment with
the Department. To allow Dutcher additional relief in a civil
action in district court under the NFEPA would be to judicially
interfere with the quid pro quo determined by the Legislature
through the Nebraska Workers’ Compensation Act.
Changes in the workers’ compensation laws, and in the pub-
lic policies recognized in those laws, must emanate from the
lawmaking power of the Legislature and not from the courts. 61
If the Legislature determines victims of employer discrimina-
tion on the basis of disabilities caused by injuries covered by
workers’ compensation with that same employer should have
the additional remedies of a civil action under the NFEPA, it
can pass an amendment plainly so providing.
CONCLUSION
Viewing the evidence in a light most favorable to Dutcher
and giving her the benefit of all reasonable inferences deduc-
ible from the evidence presented at the summary judgment
hearing, because of the exclusivity provisions of the Nebraska
Workers’ Compensation Act, we determine the district court
lacked jurisdiction over Dutcher’s NFEPA action. We affirm
the judgment of the district court granting summary judgment
in favor of the Department.
Affirmed.
61
Estate of Teague v. Crossroads Co-op Assn., supra note 6. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487142/ | [Cite as Cintrifuse Landlord, L.L.C. v. Panino, L.L.C., 2022-Ohio-4104.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
CINTRIFUSE LANDLORD, LLC, : APPEAL NOS. C-220050
C-220065
Plaintiff-Appellee/ : TRIAL NO. A-2000757
Cross-Appellant,
:
vs.
: O P I N I O N.
PANINO, LLC,
:
and
:
NINO LORETO,
:
Defendants-Appellants/
Cross-Appellees/ :
Third-Party Plaintiffs,
:
and
:
REMO A. LORETO,
:
and
:
PATRICIA A. LORETO,
:
Defendants,
:
vs.
:
CINCINNATI CENTER CITY
DEVELOPMENT CORPORATION, :
Third-Party Defendant-Appellee. :
Civil Appeals From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Reversed and Cause Remanded in C-220050; Appeal
Dismissed in C-220065
OHIO FIRST DISTRICT COURT OF APPEALS
Date of Judgment Entry on Appeal: November 18, 2022
Taft Stettinius & Hollister LLP, Nicholas J. Pieczonka and Anna M. Greve, for
Plaintiff-Appellee/Cross-Appellant and Third-Party Defendant-Appellee,
Croskery Law Offices and Robert F. Croskery, for Defendants-Appellants/Cross-
Appellees/Third-Party Plaintiffs.
2
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} Defendants-appellants Panino, LLC, (“Panino”) and Nino Loreto appeal
the trial court’s decision to grant summary judgment to plaintiff-appellee Cintrifuse
Landlord, LLC, (“Cintrifuse”) and third-party defendant-appellee Cincinnati Center
City Development Corporation (“3CDC”). Cintrifuse sued Panino and Loreto
(collectively, “Appellants”) for breach of contract, replevin, and conversion after
Appellants failed to pay rent on Panino’s restaurant space and removed personal
property from the restaurant in which Cintrifuse claimed a security interest.
Appellants countersued for breach of contract and fraud-related claims. For the
reasons discussed below, we reverse the trial court’s grant of summary judgment and
remand for further proceedings.
Factual and Procedural History
{¶2} In April 2016, Panino, a restaurant owned and operated by Loreto,
entered into a commercial lease agreement with Cintrifuse, a subsidiary of 3CDC.1 The
lease was for restaurant space located at 1313-1315 Vine Street in the Over-the-Rhine
neighborhood of Cincinnati, Ohio.
{¶3} The parties discussed the construction of an outdoor dining/bar patio
in the pocket park2 called “Imagination Alley” next to Panino. However, patio space in
1 Cintrifuse is a subsidiary of 3CDC, is represented by the same attorneys as 3CDC, and often acts
through agents who are also 3CDC employees. For example, the Panino-Cintrifuse lease was signed
for Cintrifuse by Adam Gelter, who is 3CDC’s Executive Vice President. While we have attempted
throughout this opinion to attribute acts of Cintrifuse and 3CDC to the correct entity, the record is
not always clear as to which entity undertook certain acts. Where the record is unclear, we refer to
Cintrifuse because it is the landlord and Panino’s counterparty to the lease agreement, as well as
the plaintiff in this action.
2 A pocket park is a small, outdoor space, typically located in an urban area without many
other opportunities for outdoor recreation. Nati ona l Rec re at io n a nd Pa r k
Assoc ia t i on , C r ea ti n g Mi ni -Pa r ks fo r I nc rea s ed Ph ysi c a l Activ it y ,
https://www.nrpa.org/contentassets/f768428a39aa4035ae55b2aaff372617/pocket -parks.pdf
(accessed Nov. 1, 2022). Such parks may offer event spaces, playgrounds, or other means
for the general public to enjoy the outdoors. Id.
3
OHIO FIRST DISTRICT COURT OF APPEALS
the pocket park was not a part of the lease agreement because the park was not owned
by Cintrifuse or 3CDC. The adjacent portion of Imagination Alley was and is owned by
the city of Cincinnati, and the park was managed by the Cincinnati Recreation
Commission (“CRC”) at all relevant times.
{¶4} The lease agreement included the following provision regarding
attempts to acquire the park:
3.8. Landlord and Tenant both desire that an outdoor service area/bar area
shall be created and included within this Lease. Tenant and Landlord both
recognize that Landlord does not currently own the land upon which an
outdoor service area/bar can be created. Landlord and Tenant will
mutually agree upon the size to the outdoor service area/bar area.
Landlord shall provide its best efforts in obtaining the approval of the any
[sic] governmental and community entities to purchase the land and
manage the installation of the outdoor bar and additional service area
contemplated by the Landlord and Tenant. Additional service area/ bar
[sic] area will be constructed at the sole cost of the Tenant.
(Emphasis added.) The parties refer to the emphasized provision as the “best-efforts”
provision.
{¶5} Panino opened in November 2016 and operated for three years, but
struggled financially. It ultimately accrued $175,000 in overdue rent. In November
2019, Cintrifuse sent Appellants a notice to leave the premises. In the notice, Cintrifuse
instructed Loreto to leave the liquor license and various fixtures and pieces of
restaurant equipment behind because, per the lease, Cintrifuse had a security interest
in those items. In December, Cintrifuse sent Appellants two additional letters
4
OHIO FIRST DISTRICT COURT OF APPEALS
reminding Loreto to leave the collateral in the building. When Loreto vacated the
building on December 15, 2019, he took the liquor license and some of the restaurant
equipment with him.
{¶6} In February 2020, Cintrifuse sued Appellants for breach of contract,
replevin, and conversion. Cintrifuse later amended its complaint to add as defendants
Loreto’s parents, Remo and Patricia Loreto, who had helped finance the restaurant.
Appellants brought counterclaims for breach of contract, bad-faith breach of contract,
and abuse of process. Appellants also asserted third-party claims against 3CDC for
fraudulent inducement, fraud by omission and misrepresentation, and conspiracy to
commit abuse of process.
{¶7} In July 2020, the court held a multiday replevin hearing to determine
whether Cintrifuse was entitled to take immediate possession of the collateral it
claimed under the lease pending a final judgment in this action. To be entitled to
immediate possession, Cintrifuse was required to demonstrate probable cause of its
right to permanent possession of the collateral. See R.C. 2737.03 and 2737.07(B). The
court ruled that Cintrifuse had failed to carry its burden because it had failed to prove
“best efforts to obtain ownership or control of the patio area.”
{¶8} In September 2021, Cintrifuse and 3CDC moved for summary
judgment. The trial court granted the motion, and, after a hearing on the matter,
awarded Cintrifuse $197,161.41 in damages. This appeal timely followed.
{¶9} Appellants argue in three assignments of error that the trial court erred
in granting summary judgment in favor of Cintrifuse and 3CDC because (1) Cintrifuse
and 3CDC failed to satisfy their best-efforts obligation under the lease agreement; (2)
Cintrifuse and 3CDC fraudulently induced Loreto into signing the lease agreement;
5
OHIO FIRST DISTRICT COURT OF APPEALS
and (3) Cintrifuse and 3CDC committed fraud by telling Loreto that they were
“planning to move forward with the patio construction” in June 2016.
{¶10} Cintrifuse has filed a cross-appeal, arguing that the trial court erred in
failing to award it additional damages for build-out and liquor-license expenses and
attorney fees.
{¶11} For the reasons discussed below, we sustain Appellants’ first
assignment of error and overrule their second and third assignments of error. Our
disposition of the first assignment of error makes the cross-assignment of error moot.
We reverse the trial court’s judgment and remand the cause to the trial court.
The Notice of Appeal
{¶12} Cintrifuse and 3CDC argue that Appellants failed to appeal the grant of
summary judgment in favor of 3CDC, and, therefore, this court should not entertain
their arguments as they relate to 3CDC.
{¶13} App.R. 3(D) governs the contents of the notice of appeal. It states, “The
notice of appeal shall specify the party or parties taking the appeal; shall designate the
judgment, order or part thereof appealed from; and shall name the court to which the
appeal is taken.” (Emphasis added.)
{¶14} Where the notice of appeal is “technically incorrect,” but fulfills its
“basic purpose of informing the parties and the court, in a timely manner, of
appellant’s intention of appealing a specified judgment,” the notice of appeal is
sufficient. Natl. Mut. Ins. Co. v. Papenhagen, 30 Ohio St.3d 14, 16, 505 N.E.2d 980
(1987). “[J]ustice is ultimately best served by an attitude of judicial tolerance toward
minor errors, made in good faith, which pose no danger of prejudice to the opposing
party or to the court’s essential functions.” Id.
6
OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} Cintrifuse is the plaintiff and 3CDC is a third-party defendant.
Cintrifuse and 3CDC jointly moved for summary judgment. The trial court granted
summary judgment as to both in an entry entitled “Order Granting Motion of
Cintrifuse Landlord, LLC and Cincinnati Center City Development Corporation for
Summary Judgment.” Appellants’ notice of appeal is entitled “Defendants’ Notice of
Appeal of the Order Granting Defendant’s [sic] Motion for Summary Judgment and
on the Final Order Awarding Damages.” (Emphasis added.) In the notice, Appellants
stated that they were appealing the “Attached Order and Entry Granting Plaintiff’s
Motion for Summary Judgment” and the “attached Final Order dated January 25,
2022, awarding Damages to Plaintiff.” Attached to the notice of appeal are the trial
court’s order granting summary judgment and final order on damages. Appellants’
appeal can be read as appealing the judgment as to both the third-party defendant and
the plaintiff. And, despite the flaws, the notice of appeal informed the parties of
Appellants’ intention to appeal the trial court’s order granting summary judgment in
favor of both Cintrifuse and 3CDC. Cintrifuse is a subsidiary of 3CDC and both parties
were represented by the same lawyers. Both parties were served with the notice of
appeal. This court will entertain Appellants’ arguments as they relate to 3CDC.
Cintrifuse’s Waiver Arguments
{¶16} Cintrifuse alleged claims for breach of contract, replevin, and
conversion. It claimed that Panino’s failure to pay rent resulted in a breach of the lease
agreement. It claimed conversion and replevin because Loreto took the liquor license
and some of the restaurant equipment with him when he vacated the premises in
December 2020.
{¶17} Cintrifuse argues that Appellants’ failure to discuss the replevin and
7
OHIO FIRST DISTRICT COURT OF APPEALS
conversion claims in their merit brief has resulted in a waiver of any argument on those
claims. Appellants contend that they did not discuss the conversion and replevin
claims because those claims are contingent on the breach-of-contract claim.
Appellants argue that Cintrifuse would have no right to the collateral if not for Panino’s
failure to pay rent, and that Panino would not have failed to pay rent if not for
Cintrifuse’s failure to satisfy its best-efforts obligation. Because there are genuine
issues of material fact as to whether Cintrifuse satisfied its best-efforts obligation, we
cannot say at this point whether Cintrifuse has a right to possession of the collateral.
Therefore, Appellants have not waived their arguments regarding Cintrifuse’s
conversion and replevin claims.
{¶18} Cintrifuse also argues that Appellants waived their abuse-of-process
claim by not discussing it in their appellate brief. Appellants argue that they did not
discuss the abuse-of-process claim because the court rendered a judgment on the
merits in Cintrifuse’s favor.
{¶19} Abuse of process consists of the attempt to “achieve through the use of
the court that which the court is itself powerless to order.” Gemperline v. Franano,
5th Dist. Delaware No. 21 CAE 01 0002, 2021-Ohio-2394, ¶ 19, quoting Robb v.
Chagrin Lagoons Yacht Club, 75 Ohio St.3d 264, 271, 662 N.E.2d 9 (1996). In an
abuse-of-process case, “the improper purpose usually takes the form of coercion to
obtain a collateral advantage, not properly involved in the proceeding itself, such as
the surrender of property or the payment of money, by the use of the process as a threat
or a club.” Id.
{¶20} Because the court granted Cintrifuse and 3CDC’s motion for summary
judgment, there simply was nothing for Appellants to discuss on appeal regarding
8
OHIO FIRST DISTRICT COURT OF APPEALS
their abuse-of-process claim. Appellants have not waived their claim for abuse of
process.
Summary Judgment
{¶21} This court reviews a trial court’s decision on summary judgment de
novo. Amankwah v. Liberty Mut. Ins. Co., 2016-Ohio-1321, 62 N.E.3d 814, ¶ 9 (1st
Dist.). Summary judgment is proper under Civ.R. 56(C) when no genuine issues as to
any material fact remain; the moving party is entitled to judgment as a matter of law;
and it appears from the evidence that reasonable minds can come to but one
conclusion, and viewing such evidence most strongly in favor of the party against
whom the motion for summary judgment is made, the conclusion is adverse to that
party. Id.
Appellants’ First Assignment of Error
{¶22} In their first assignment of error, Appellants argue that the trial court
erred in holding that there was no genuine issue of material fact regarding whether
Cintrifuse had used its “best efforts” to obtain the approval of governmental and
community entities for the acquisition of the patio. Appellants contend that multiple
facts demonstrate that Cintrifuse breached the lease agreement when it failed to satisfy
its best-efforts obligation. To prevail on a breach-of-contract claim, a party must prove
the existence of a contract, performance by the plaintiff, breach by the defendant, and
damage or loss to the plaintiff. White v. Pitman, 2020-Ohio-3957, 156 N.E.3d 1026,
¶ 37 (1st Dist.).
I. Best Efforts Defined
{¶23} The phrase “best efforts” is not defined in the lease agreement.
Therefore, it is up to the court to define the phrase while considering the circumstances
9
OHIO FIRST DISTRICT COURT OF APPEALS
surrounding the agreement. See Perma Research & Dev. Co. v. Singer Co., 308
F.Supp. 743, 748 (S.D.N.Y.1970) (“ ‘Best efforts’ * * * is a term which necessarily takes
its meaning from the circumstances.”); Martin v. Monumental Life Ins. Co., 240 F.3d
223, 233 (3d Cir.2001) (“ ‘Best efforts’ has been widely held to be an ambiguous
contract term * * * [and] depends on the factual circumstances surrounding an
agreement.”).
{¶24} Definitions of “best efforts” vary among jurisdictions. A minority of
courts have held that “best efforts” is equivalent to the duty of good faith. See Thau, Is
This Really the Best We Can Do? American Courts’ Irrational Efforts Clause
Jurisprudence and How We Can Start to Fix It, 109 Geo.L.J. 665, 673 (2021);
Macksey v. Egan, 36 Mass.App.Ct. 463, 471, 633 N.E.2d 408 (1994), fn. 16; Triple-A
Baseball Club Assocs. v. Northeastern Baseball, Inc., 832 F.2d 214, 225 (1st Cir.1987).
{¶25} However, a duty of good faith is implied in every contract. Therefore,
equating best efforts with good faith would make best-efforts clauses meaningless.
{¶26} Other courts have distinguished best efforts from good faith by holding
that diligence is central to best efforts, while fairness and honesty are central to good
faith. See Natl. Data Payment Sys. v. Meridian Bank, 212 F.3d 849, 854 (3d Cir.2000)
(“The duty of best efforts ‘has diligence as its essence’ and is ‘more exacting’ than the
usual contractual duty of good faith.”); Triad Packaging, Inc. v. SupplyOne, Inc., 597
F.Appx. 734, 742 (4th Cir.2015) (“best efforts generally means ‘diligent attempts to
carry out an obligation.’ ”); Farnsworth, On Trying to Keep One’s Promises: The Duty
of Best Efforts in Contract Law, 46 U.Pitt.L.Rev. 1, 8 (1984) (“Good faith is a standard
that has honesty and fairness at its core and that is imposed on every party to a
contract. Best efforts is a standard that has diligence as its essence and is imposed only
10
OHIO FIRST DISTRICT COURT OF APPEALS
on those contracting parties that have undertaken such performance.”).
{¶27} Other courts focus on the reasonableness of the efforts. See, e.g., Doyle
v. Jewell, D.Utah No. 2:13-cv-861-CW, 2015 U.S. Dist. LEXIS 47766, *18 (Apr. 9,
2015) (“The very purpose of a best-efforts clause is to commit a party to undertake all
reasonable actions in light of circumstances beyond its control.”). In fact, some courts
equate “reasonable efforts” with “best efforts.” See, e.g., Permanence Corp. v.
Kennametal, Inc., 908 F.2d 98, 100 (6th Cir.1990), fn. 2 (“A more accurate description
of the obligation owed would be the exercise of ‘due diligence’ or ‘reasonable
efforts.’ ”). A minority of courts have rejected this notion entirely and have held that a
duty of best efforts requires more than reasonable efforts. Thau, 109 Geo.L.J. at 683.
{¶28} There is little case law in Ohio on the matter. The Eighth District, in
interpreting a best-efforts obligation in a dissolution decree, utilized the Black’s Law
Dictionary definition of “best efforts.” Bridgeland v. Bridgeland, 8th Dist. Cuyahoga
No. 109831, 2021-Ohio-2587, ¶ 23. The court defined best efforts as:
Diligent attempts to carry out an obligation; esp., all actions rationally
calculated to achieve a stated objective, to the point of leaving no possible
route to success untried. As a standard, a best-efforts obligation is stronger
than a good-faith obligation. Best efforts are measured by the measures
that a reasonable person in the same circumstances and of the same nature
as the acting party would take.
Id., quoting Black’s Law Dictionary 196 (11th Ed.2019). The court also stated that
“best efforts” are “marked by flexibility and reasonable breadth, rather than
meticulous specificity.” Id.
{¶29} Despite the disaccord among courts, there seems to be widespread
11
OHIO FIRST DISTRICT COURT OF APPEALS
agreement that “best efforts” does not mean “every conceivable effort,” nor does it
guarantee a certain result. See, e.g., Coady Corp. v. Toyota Motor Distribs., 361 F.3d
50, 59 (1st Cir.2004) (“ ‘Best efforts’ is implicitly qualified by a reasonableness test–it
cannot mean everything possible under the sun.”); Mark Technologies Corp. v. Utah
Resources Internatl., Inc., 2006 UT App 418, 147 P.3d 509, ¶ 8 (“Neither success nor
the single-minded pursuit of the objective is required.”); Doyle at *18 (“A best-efforts
clause does not assure that the goal will be accomplished.”). Thus, we reject the Eighth
District’s inclusion of “all actions rationally calculated to achieve a stated objective, to
the point of leaving no possible route to success untried” in a practical definition of
“best efforts.” Bridgeland at ¶ 23.
{¶30} Courts also commonly consider the responsible party’s sophistication
and skills, as well as the standards of the relevant industry when determining whether
the party has made its best efforts. See Bloor v. Falstaff Brewing Corp., 454 F.Supp.
258, 267 (S.D.N.Y.1978) (the promisor’s actions should be judged in accordance with
the “average, prudent, comparable” party); First Union Natl. Bank v. Steele Software
Sys. Corp., 154 Md.App. 97, 173, 838 A.2d 404 (2003) (in making its best-efforts
determination, the jury was entitled to consider “the standard in the industry
regarding similar contracts between banks and their settlement service vendors”);
Farnsworth, 46 U.Pitt.L.Rev. at 9 (“[I]f the promisor is a person, such as an architect
or lawyer, whose occupation is to make special skills available to those who do not
possess those skills, courts commonly ask what efforts a person possessing those skills
would use if that person were in the promisor’s place.”).
{¶31} As the facts of the present case demonstrate, commercial real estate
cases often involve multiple parties and multiple factors that are outside of the
12
OHIO FIRST DISTRICT COURT OF APPEALS
contracting parties’ control. Contractual obligations may take years to fulfill, with the
circumstances surrounding the obligations constantly changing. Adopting an overly
onerous definition of best efforts would contradict this reality. Therefore, we choose
to focus on the diligence of the responsible party and the reasonableness of its actions
in light of the attendant circumstances.
{¶32} We therefore synthesize “best efforts” as follows: The duty of “best
efforts” is more exacting than the duty of good faith. Natl. Data Payment Sys., Inc.,
212 F.3d at 854. It requires the promisor to pursue its contractual obligations
diligently and with reasonable effort considering its ability, the means at its disposal,
and the other party’s justifiable expectations. Triad Packaging, Inc., 597 F.Appx. at
742; T.S.I. Holdings, Inc. v. Jenkins, 260 Kan. 703, 720, 924 P.2d 1239 (1996). The
duty of best efforts requires that the responsible party pursue all reasonable methods
of satisfying its obligations in light of circumstances beyond its control. Kroboth v.
Brent, 215 A.D.2d 813, 814, 625 N.Y.S.2d 748 (1995); Doyle, D.Utah No.
2:13-cv-861-CW, 2015 U.S. Dist. LEXIS 47766, at *18; United Telecommunications,
Inc. v. Am. Television & Communications Corp., 536 F.2d 1310, 1319 (10th Cir.1976),
fn. 8. “Best efforts” does not mean leaving no stone unturned or making every
conceivable effort.
II. Best Efforts and Summary Judgment
{¶33} Because best-efforts determinations are typically fact-intensive
inquiries, courts often hold that the issue is inappropriate for summary judgment. See
First Union Natl. Bank, 154 Md.App. at 139, 838 A.2d 404 (“although contract
interpretation is generally a question of law, a factual determination may be required
as to what is deemed to be ‘best efforts.’ ”); Cook v. Wal-Mart, Inc., 8th Dist. Cuyahoga
13
OHIO FIRST DISTRICT COURT OF APPEALS
No. 79451, 2002 Ohio App. LEXIS 937, *9 (Mar. 7, 2002) (“The best efforts required
by the contract is a highly individual standard. Whether appellant complied with it is
an issue of fact.”); Toth Auto Lease, Inc. v. Palladina, 8th Dist. Cuyahoga No. 44965,
1983 Ohio App. LEXIS 15287, *3 (Jan. 27, 1983) (holding that because the parties
testified to different understandings of the term “best efforts,” and the contract did
not define that term or outline objective methods to determine “best efforts,” the
meaning of the phrase was a question of fact); Clarke v. Hartley, 7 Ohio App.3d 147,
151, 454 N.E.2d 1322 (8th Dist.1982) (holding that whether the buyer made a best
effort at obtaining financing by applying for a loan at only one lending institution was
a question of fact for the jury); see also Weaver v. Romaniuk, 1st Dist. Hamilton No.
C-890642, 1990 Ohio App. LEXIS 4931, *4 (Nov. 14, 1990) (holding that whether the
responsible party had made a “diligent effort” to obtain financing by submitting one
loan application was an issue for the trier of fact).
{¶34} “The law interpreting the best efforts standard focuses on the factual
nuances of the parties’ dispute.” Marquardt Co. v. United States, 101 Fed.Cl. 265, 273
(2011). “The best efforts standard ‘cannot be defined in terms of a fixed formula; it
varies with the facts and the field of law involved.’ ” Id., quoting Pinpoint Consumer
Targeting Servs., Inc. v. United States, 59 Fed.Cl. 74, 82 (2003), quoting Triple-A
Baseball Club Assocs. v. Northeastern Baseball, Inc., 832 F.2d 214, 225 (1st Cir.1987).
“Whatever the variation in the exact terms used to express the legal standard for best
efforts, courts largely agree that in many cases ‘disputes as to the application of “best
efforts” clauses present factual issues that preclude summary judgment.’ ” Id. at 237-
274, quoting Northrop Grumman Computing Sys., Inc. v. United States, 93 Fed.Cl.
144, 151 (2010), fn. 7.
14
OHIO FIRST DISTRICT COURT OF APPEALS
{¶35} In Marquardt, the court denied the government’s motion for summary
judgment because “neither party’s interpretation of the clause can be sustained by
looking only to the plain text of the Agreement.” Id. at 272. “[R]esolution of the parties’
dispute here requires resolution of disputed factual questions and, in particular,
‘requires knowledge not only of what [the defendant] did, but could have done, to
obtain this funding.’ ” Id. at 274, quoting Northrop at 150.
{¶36} Cintrifuse argues that summary judgment can be appropriate in cases
involving best-efforts provisions and cites several cases from outside Ohio in support.
See, e.g., Kalenburg v. Klein, 847 N.W.2d 34, 39 (Minn.App.2014) (affirming
summary judgment in favor of residential homebuyer where the buyer had used best
efforts to attempt to obtain financing after being denied financing by two separate
lenders based on a low appraisal value of the property); Stand Up Digital, Inc. v. Hart,
838 Fed.Appx. 733, 735-736 (4th Cir.2020) (affirming summary judgment in favor of
defendant-comedian where comedian obligated to use best efforts to promote a video
game failed to appear at an in-store promotion, but participated in other promotional
opportunities, such as social media posts, and made the game over $1 million); Agrico
Canada Ltd. v. Helm Fertilizer Corp., 385 Fed.Appx. 898, 899-900 (11th Cir.2010)
(affirming summary judgment in favor of shipper of bulk fertilizer where the shipper
was required to use “best efforts” to deliver fertilizer within a 15-day window and made
delivery six hours after the window had expired). However, we note that these cases
are either factually much simpler than the present case (Kalenburg, Agrico) or the
courts did not analyze the best-efforts issue with much depth (Hart, Agrico).
{¶37} There may be rare cases in which summary judgment is appropriate to
resolve the question of whether a contracting party has met its best-efforts obligation.
15
OHIO FIRST DISTRICT COURT OF APPEALS
However, because there remain genuine issues of material fact discussed below, this
is not such a case.
III. Efforts to acquire Imagination Alley
{¶38} Cintrifuse and 3CDC primarily interacted with two entities to acquire
Imagination Alley: CRC and the Over-the-Rhine Community Council (“OTRCC”).
{¶39} In September 2015, Loreto signed a letter of intent to lease the space at
1313-1315 Vine Street. At that time, Cintrifuse had a temporary lease with CRC to use
Imagination Alley as a place to store construction equipment for construction work
being done on the building at 1313-1315 Vine Street. On October 12, 2015, Adam Gelter
of 3CDC attended a meeting of the OTRCC Board of Trustees and discussed the park.
According to the meeting minutes, 3CDC proposed that Cintrifuse be granted a long-
term, expanded lease to Imagination Alley “to maintain the art, the public use and
manage the park.” On October 15, 2015, Gelter sent an email to Markiea Carter of the
city of Cincinnati. He informed Carter that 3CDC had “both CRC and OTR Community
Council Board support for a long term lease for Imagination Alley,” pursuant to three
conditions. One of the conditions was that “a portion of the alley” would remain open
to the public. Stephen Pacella of CRC, in an email to Carter dated October 20, 2015,
confirmed CRC support, “based on community council approval and that as much of
the art as possible could be utilized/incorporated into any new design.”
{¶40} Gelter attended an OTRCC member’s meeting on October 26, 2015.
According to the meeting minutes, Gelter expressed that Cintrifuse was interested in
a long-term master lease of the park. Cintrifuse would maintain the art and murals,
“create a space near the sidewalk for public,” and would reserve “the back half of the
space for their own use,” although Gelter did not clarify how Cintrifuse would use the
16
OHIO FIRST DISTRICT COURT OF APPEALS
back half of the space. Imagination Alley was further discussed at the November 23,
2015 and January 25, 2016 meetings, where 3CDC presented OTRCC with an image of
Imagination Alley that showed that a pedestrian walkway through the park would be
preserved.
{¶41} Gelter testified at the July 28, 2020 replevin hearing that in early 2016,
Cintrifuse had the support of the city manager and CRC director for its plan to either
purchase or long-term lease Imagination Alley. But in May 2016, the director of CRC
changed, and Daniel Betts came into the position. Gelter testified that Betts was more
sensitive to the community’s views and eventually made it a condition of the sale or
lease of the park that the parties get the approval of OTRCC. Gelter testified that as a
result, the strategy employed by Cintrifuse changed. The new strategy was to convince
OTRCC that Cintrifuse would make improvements to Imagination Alley as a whole. If
OTRCC approved of the idea, Betts would then present the plan to the CRC board of
commissioners for final approval.
{¶42} As representative for Panino under Civ.R. 30(B)(5), Loreto testified in
his deposition that before signing the lease on April 29, 2016, he had been assured
many times by multiple people at 3CDC that he would have the patio. On May 3, 2016,
the Business Courier published an article in which Loreto mentioned that his new
restaurant would have a patio. Susan Tolentino of 3CDC called Loreto and told him
that he should not have discussed the patio with the Business Courier reporter because
the land had not yet been acquired. Loreto emailed Tolentino and apologized for
mentioning the patio in the interview. He explained that he had told the reporter that
the city still owned the land, “so it was still uncertain.” Loreto stated, “I have been
assured that we will have an outdoor patio, so I didn’t think I had stepped on any
17
OHIO FIRST DISTRICT COURT OF APPEALS
toes * * *.” He explained, “no one told me not to talk about the patio until this
morning.” He further said, “I’ll go to any meeting you need me to go to and plead my
case!!!”
{¶43} Tolentino emailed Loreto back and explained that “anything regarding
the patio need[s] to remain quiet to help us gain support from community council to
purchase the alley. * * * We are doing everything we can to gain the alley and hope to
have the community on our side. We hope to open in the early fall.”
{¶44} Cintrifuse’s efforts to acquire the park continued through June. Betts
emailed Gelter on June 3, indicating that he wanted to lease the space to Cintrifuse,
but needed to talk to the city manager and the CRC board first. Gelter sent Betts a draft
of a proposed lease on June 9. Betts discussed the idea with Dan Jones of CRC and
Jones provided him the appraisal value from three years prior and recommended that
a new appraisal be done before the lease was discussed with the legal department.
{¶45} On June 17, 2016, Tolentino emailed Ron Novak and Alex Dever of
Drawing Dept, an architectural firm. Tolentino copied Loreto on the email. The email
said: “Ron/Alex we are planning to move forward with the patio construction. We will
need information on the sizing of the pad etc. As well as something for the fence
design. Please let me know what questions you may have.”
{¶46} On July 5, Danny Lipson of 3CDC emailed Betts for an update on
Imagination Alley. At a CRC meeting on July 19, Betts indicated that the proposed
lease from Cintrifuse was with the legal department for review. On July 29, Lipson
emailed Betts regarding the details of the lease/purchase. He told Betts that 3CDC was
“happy to buy it [at] appraised value now or at that value in 5 years.”
{¶47} On September 1, Betts sent an email to Dan Jones of CRC indicating that
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OHIO FIRST DISTRICT COURT OF APPEALS
he would place a call later that day to Martha Good, at that time the president of
OTRCC, to discuss Imagination Alley. On September 20, Betts received the appraisal
from the legal department. Lipson followed up multiple times, and on September 29,
Betts sent Lipson two options: (1) sale of the park at the “fair market value” of
$245,000 or (2) lease with an annual rate at the “fair market value” of $16,000.
{¶48} On October 18, Betts discussed Imagination Alley at a CRC meeting.
According to the meeting minutes, Betts requested a one-year extension of the short-
term lease to Cintrifuse and discussed the possible sale of Imagination Alley. On
November 3, Betts emailed Sheila Hill-Christian of the city manager’s office. He said
that CRC was working with 3CDC and OTRCC on issues related to the displacement of
community artwork in the park, and that once those issues were resolved CRC
intended to sell the land to 3CDC at market value.
{¶49} On January 19, 2017, Gelter attended an OTRCC board of trustees
meeting and presented an update on Imagination Alley. According to the minutes,
3CDC was interested in leasing or buying the park “with a commitment to keep it as a
public space.” On January 23, 2017, Gelter attended an OTRCC member’s meeting to
discuss Imagination Alley. A working group was created between CRC, OTRCC, 3CDC,
and Cintrifuse to develop ideas for “improvement and solutions” for the park.
{¶50} By March 2017, Betts had reconsidered his willingness to sell the park.
On March 17, 2017, Betts emailed Gelter to tell him, “We can come to an agreement on
extended lease. Let’s talk on Monday.”
{¶51} OTRCC scheduled two public meetings on May 17 and May 24, 2017, to
gather community input regarding Imagination Alley. By that point, 3CDC had
indicated that it was okay with only acquiring a portion of the park. CRC presented the
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OHIO FIRST DISTRICT COURT OF APPEALS
attendees with four options to vote on: (1) CRC would maintain the site in its current
condition; (2) CRC would sell or lease part of the site with the proceeds used to
improve CRC property at Imagination Alley; (3) CRC would sell or lease the entire site,
with the proceeds used to improve other CRC sites in Over-the-Rhine; (4) CRC would
keep the site and redevelop the space for “requested uses.” CRC tabulated the voting
results from both meetings.
{¶52} Option one was supported by 11 people, option two was supported by 14
people, no one supported option three, and option four was supported by 16 people.
{¶53} CRC also sought community input using surveys. The surveys indicated
a preference for keeping the space public, but there was some support for a mixed
public/private option: 149 in favor of public, 11 in favor of private, and 79 in favor of a
combination of public and private.
{¶54} Based on the results of the surveys and the votes cast at the May 17 and
May 24 meetings, CRC decided to retain control of Imagination Alley and keep it as a
public park.
{¶55} Things went relatively quiet for a while. On January 3, 2019, Gelter
emailed Betts and attempted to reopen the discussion about Imagination Alley. This
time, 3CDC sought only a “small patio area” for Panino. CRC was skeptical but
recommended that the matter go back before OTRCC. Loreto testified that on May 20,
2019, he, his parents, and two local supporters attended an OTRCC meeting. Loreto
testified that nobody from 3CDC was present. Loreto described the meeting as
“verging on violent” resistance to any changes to Imagination Alley. A month after the
meeting, OTRCC sent a letter to CRC. The letter stated, “Our community remains
committed to the proposition that all of Imagination Alley shall remain a public
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OHIO FIRST DISTRICT COURT OF APPEALS
space open to all residents * * *.” (Emphasis in original.)
IV. Disputes as to Best Efforts
{¶56} Appellants argue that there are several examples of Cintrifuse failing to
use its best efforts. We will focus on two of their arguments.
{¶57} At the July 29, 2020 replevin hearing, Appellants offered into evidence
an excerpt of a recording of a conversation that took place on December 18, 2018,
between Gelter, Zurick, Loreto, Remo Loreto, and Loreto’s business partner Joe Helm,
where the parties discussed the status of the land for the patio. During that meeting,
Gelter stated:
I think it’s probably a little more complicated than that because part of the
issue is that in order to build the patio, one of us would have to invest a
whole lot more money into it to build it. And I think, you know, our, going
back and looking at it, you know, that was the bigger driver. Like, we still
could, we still can and could plow through the city and get access to some
space and I’m confident that we could do it, just like you said, it doesn’t
have to be exactly like what you’re describing, but I can, yes, it’s a fair point,
if we needed to do that, we could. But at the time, you know, the budget
came back, especially, you know, the money that we accumulated putting
in, for the rent that we were getting back, you know, we, there wasn’t any
money, and you guys didn’t have the money to do it, so we didn’t have the
money to build the patio.
{¶58} Gelter testified that the recording was taken out of context. He testified
that he was referring to the fact that if Cintrifuse acquired the land, Panino would have
to construct the patio at its own expense, and it did not have the money to do that. He
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OHIO FIRST DISTRICT COURT OF APPEALS
testified that Cintrifuse had the funds to acquire the land, but that it would not have
mattered because Panino did not have the money to build the patio. Gelter testified
that money was not the obstacle. The obstacle was that the city did not want to sell the
park.
{¶59} This is a dispute of material fact. There are multiple ways to interpret
what Gelter meant by “we still could, we still can and could plow through the city and
get access to some space and I’m confident that we could do it, * * * but * * * there
wasn’t any money, and you guys didn’t have the money to do it, so we didn’t have the
money to build the patio.” Viewing the evidence in the light most favorable to
Appellants, a reasonable person could interpret Gelter’s statements as evidence that
Cintrifuse had the ability to buy or lease the land, but chose not to do so, either because
it did not want to spend the money or because it determined that even if it acquired
the land, Panino would not have been able to build the patio. If the fact-finder adopted
this view of Gelter’s statements, it might conclude that by failing to carry through on
that ability, Cintrifuse did not exercise its best efforts to acquire the land for the patio.
{¶60} Also, 3CDC indicated to OTRCC and representatives of the city several
times throughout 2015-2017 that it was committed to keeping Imagination Alley open
to the public. For example, such representations were recorded in the meeting minutes
from the OTRCC meeting on October 12, 2015, in Gelter’s email to Carter on October
15, 2015, and in the meeting minutes from the OTRCC meeting on January 19, 2017.
It was also implied in the drawing of Imagination Alley discussed at the OTRCC
meetings on November 23, 2015, and January 25, 2016. The trier of fact could
conclude from 3CDC’s repeated representations that the park would remain open to
the public that neither 3CDC nor Cintrifuse was working diligently to acquire space in
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OHIO FIRST DISTRICT COURT OF APPEALS
the park for the private patio/bar of its lessee restaurant. Thus, there is genuine debate
as to the reasonable efforts undertaken by Cintrifuse and 3CDC to push for private use
of the park.
{¶61} Cintrifuse is a commercial landlord and subsidiary of 3CDC, a
sophisticated development corporation that has handled many major development
projects in Cincinnati. Whether Cintrifuse has met its best-efforts obligation is a
question of fact as to whether Cintrifuse has put forth the diligence and reasonable
effort to be expected of a corporation with its skills and resources, taking into account
the standards of the commercial leasing industry. In evaluating such a question on
summary judgment, we conclude there are genuine disputes of material fact both as
to what efforts Cintrifuse and 3CDC actually expended, as well as what additional steps
they might reasonably have taken under the circumstances.
{¶62} Given the nature of a dispute over whether a party has satisfied its best-
efforts obligation and the disputes of material fact present in the record, the trial court
erred in granting summary judgment in favor of Cintrifuse and 3CDC. Appellants’ first
assignment of error is sustained.
Appellants’ Second Assignment of Error
{¶63} In their second assignment of error, Appellants contend that the trial
court erred in granting summary judgment in favor of Cintrifuse and 3CDC on
Appellants’ claim for fraudulent inducement. Appellants argue that 3CDC fraudulently
induced Loreto into signing the lease by not telling him about the OTRCC opposition
to the patio before he signed the lease.
{¶64} The elements of a fraudulent-inducement claim are:
(1) an actual or implied false representation concerning a fact or, where
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OHIO FIRST DISTRICT COURT OF APPEALS
there is a duty to disclose, concealment of a fact, material to the
transaction; (2) knowledge of the falsity of the representation or such
recklessness or utter disregard for its truthfulness that knowledge may be
inferred; (3) intent to induce reliance on the representation; (4) justifiable
reliance; and (5) injury proximately caused by the reliance.
Fannie Mae v. Hirschhaut, 1st Dist. Hamilton No. C-180473, 2019-Ohio-3636, ¶ 30.
{¶65} Appellants admit that 3CDC owed them no duty to disclose. But they
argue that 3CDC was aware of substantial community opposition to the patio, and that
by not disclosing that to Loreto, 3CDC implied that there was no substantial
opposition. Appellants contend that this was an “implied false representation.”
{¶66} Specifically, Appellants claim that Gelter’s testimony shows that he was
aware of community opposition to any alcohol sales in the park. However, Appellants
did not provide a record citation for such testimony, and we have not found any
evidence to support such a claim in either Gelter’s deposition or his testimony at the
replevin hearing.
{¶67} Appellants also argue that Palazzolo implied there was no strong
community opposition when, in projecting Panino’s financial prospects, he included
revenue from the patio, which was higher than Loreto’s own revenue projections. On
February 1, 2016, Palazzolo emailed Loreto with information regarding current tenant
sales at other Cintrifuse locations and his projection for Panino’s possible sales. The
email stated:
Our current Tenant sales are as follows:
The restaurants range from $600/square foot to $2,038/square foot. We
believe that a conservative estimate would [be] $950/square foot.
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OHIO FIRST DISTRICT COURT OF APPEALS
However, based on your concept being the only one of its kind in the
neighborhood and the fast-casual set-up we think you can do upwards of
$2,000/square foot in sales.
{¶68} Nowhere in the email does Palazzolo indicate that his numbers are
based upon the patio being approved. Appellants argue that was implied where
Palazzolo said that Panino was “the only one of its kind in the neighborhood.” Gelter
testified that other Cintrifuse/3CDC restaurants have patios. Moreover, even if
Palazzolo assumed that the patio would be approved, he was making financial
projections, not discussing the likelihood that the patio would be built.
{¶69} Finally, the lease that Loreto signed did not include the patio.
{¶70} Appellants have failed to demonstrate that any agent of 3CDC made an
implied false representation about community opposition in order to mislead Loreto
into signing the lease. In fact, the evidence shows that before the lease was signed,
3CDC believed a purchase of Imagination Alley would be approved by CRC. Therefore,
the trial court did not err in granting summary judgment in favor of Cintrifuse and
3CDC on Appellants’ fraudulent-inducement claim. The second assignment of error is
overruled.
Appellants’ Third Assignment of Error
{¶71} In their third assignment of error, Appellants argue that the trial court
erred in granting summary judgment in favor of Cintrifuse and 3CDC on their fraud
claim.
{¶72} The elements of fraud are:
(a) a representation or, where there is a duty to disclose, concealment of a
fact, (b) which is material to the transaction at hand, (c) made falsely, with
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OHIO FIRST DISTRICT COURT OF APPEALS
knowledge of its falsity, or with such utter disregard and recklessness as to
whether it is true or false that knowledge may be inferred, (d) with the
intent of misleading another into relying upon it, (e) justifiable reliance
upon the representation or concealment, and (f) a resulting injury
proximately caused by the reliance.
Meehan v. Mardis, 2019-Ohio-4075, 146 N.E.3d 1266, ¶ 19 (1st Dist.).
{¶73} Appellants argue that 3CDC committed fraud when Susan Tolentino
copied Loreto on an email to Drawing Dept on June 17, 2016, and stated, “we are
planning to move forward with the patio construction.” Appellants claim that Loreto
relied on Tolentino’s email as an assurance that the patio had been approved. Loreto
testified in his deposition that Tolentino told him on May 3 not to discuss the patio
until 3CDC had the support of the community to acquire the alley, and she told him
that there was an OTRCC vote the next week. Therefore, Appellants claim that when
Loreto received Tolentino’s email stating that the planning for the patio construction
was going forward, Loreto believed that the purchase of Imagination Alley had been
approved.
{¶74} Loreto testified that he waited to pay the “construction contribution”
until June 23, 2016, because he had been withholding that payment until he saw in
writing that the patio construction was moving forward. That allegation was disputed
in Tolentino’s deposition when she averred that Cintrifuse received the check before
sending the June 17 email in question.
{¶75} Regardless of the timing of the construction contribution check vis-à-
vis Tolentino’s email, Appellants’ fraud claim fails on the third and fourth elements.
Tolentino’s email did not contain any false statements. 3CDC had not acquired
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OHIO FIRST DISTRICT COURT OF APPEALS
Imagination Alley at that point, but that would not prevent 3CDC from planning for
the patio’s construction. At that point in time, both parties were still optimistic that
the land would be acquired.
{¶76} Appellants’ third assignment of error is overruled.
Cintrifuse’s Cross-Assignment of Error
{¶77} In Cintrifuse’s cross-assignment of error, it argues that the trial court
erred in declining to award it damages for “build-out” and the liquor license expenses
and attorney fees. Cintrifuse’s assignment of error is moot based on our disposition of
Appellants’ first assignment of error.
Conclusion
{¶78} Appellants’ first assignment of error is sustained. Their second and
third assignments of error are overruled. Cintrifuse’s cross-assignment of error is
mooted by our disposition of Appellants’ first assignment of error. Cintrifuse’s cross-
appeal numbered C-220065 is dismissed as moot. In Appellants’ appeal numbered
C-220050, the judgment of the trial court is reversed and the cause is remanded to the
trial court for further proceedings consistent with this opinion and the law.
Judgment accordingly.
BERGERON, P.J., and BOCK, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
27 | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487141/ | [Cite as Crutcher v. Oncology/Hematology Care, Inc., 2022-Ohio-4105.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
JOHN T. CRUTCHER, : APPEAL NOS. C-220086
C-220106
Plaintiff-Appellant/Cross-Appellee, : TRIAL NO. A-1804358
:
VS.
: O P I N I O N.
ONCOLOGY/HEMATOLOGY CARE, :
INC.,
:
OHC REAL ESTATE, LLC,
and
RANDY BROUN
Defendants-Appellees/Cross-
Appellants.
Civil Appeals From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed in Part, Reversed in Part, and Cause
Remanded.
Date of Judgment Entry on Appeal: November 18, 2022
Freking Myers & Reul LLC, Jon B. Allison, Jacobs Kleinman Seibel & McNally LPA,
and Mark J. Byrne, for Plaintiff-Appellant/Cross-Appellee,
Katz, Teller, Brant & Hild, LPA, Robert A. Pitcairn, Jr., and Peter J. O’Shea, for
Defendants-Appellees/Cross-Appellants.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Presiding Judge.
{¶1} What began as a promising enterprise for plaintiff-appellant/cross-
appellee John T. Crutcher as Chief Executive Officer and Chairman of the Board of
Directors of Oncology/Hematology Care, Inc., (“OHC”) dissolved into bitterness
and his ouster from the corporation. Dismayed by this turn of events, Mr. Crutcher
embarked on a decade-long odyssey of litigation against OHC and its affiliates. In
the midst of this battle, however, Mr. Crutcher accepted 64 months’ worth of
payouts from OHC Real Estate, LLC (“OHCRE”)—the entity OHC created to hold the
real estate that enabled OHC to operate its medical practice—to reimburse him for his
equity stake in OHCRE. After more than five years of pocketing these payments, Mr.
Crutcher suddenly concluded that he was robbed, and commenced another front in
the widening litigation skirmish.
{¶2} In this case, he sued the defendants-appellees/cross-appellants OHC,
OHCRE, and Dr. Randy Broun (collectively “the OHCRE defendants”). Although the
trial court ruled in his favor regarding his entitlement to an equity payout from
OHCRE, Mr. Crutcher now disputes the amount on appeal. But the trial court found
him bound, by virtue of waiver by estoppel, to OHCRE’s calculations based on his
acceptance of those amounts for more than five years. As we explain below, we agree
with that conclusion. In fact, we agree with nearly all of the trial court’s
determinations, and therefore overrule both of OHCRE’s cross-assignments of error,
and the balance of Mr. Crutcher’s assignments of error, save one. We find that the
trial court improperly excluded prejudgment interest from its damage computation.
Therefore, we remand the cause for that interested to be added but otherwise affirm
the trial court’s judgment.
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OHIO FIRST DISTRICT COURT OF APPEALS
I.
{¶3} After OHC formed OHCRE with Mr. Crutcher as a founding member,
Mr. Crutcher took the reins as one of two managers of OHCRE in 2004, to
“manage and control the business, affairs and properties” of OHCRE in conformity
with its Operating Agreement (“Operating Agreement”). During his extensive
involvement with OHC and OHCRE, Mr. Crutcher made a series of monetary
investments in OHCRE, providing himself with an equity stake in the LLC.
{¶4} Upon the termination of a member of OHC, the Operating Agreement
calls for the remaining members or the company to purchase the departing member’s
interest. As spelled out in the document, a member’s “Financial Interest” is comprised
of various accounts, including an account that accrues 15 percent interest annually.
Mr. Crutcher, at the helm of OHCRE and conversant with the Operating Agreement,
certainly should have understood how all of this worked.
{¶5} OHC terminated Mr. Crutcher in July 2010. Thereafter, OHCRE
determined that his Financial Interest totaled $178,535—predicated on the
investments he contributed into the LLC. Pursuant to section 6.5(c)(2) of the
Operating Agreement, OHCRE elected to pay Mr. Crutcher this amount over ten years
with interest beginning in September 2010. A few months after OHCRE began making
these payments to Mr. Crutcher—payments that he gladly accepted—he launched his
first lawsuit against OHC.
{¶6} As part of that lawsuit, Mr. Crutcher submitted an interrogatory
requesting the valuation of his membership interest in OHCRE, and he received a
schedule illustrating OHCRE’s calculation. When Mr. Crutcher filed two motions to
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OHIO FIRST DISTRICT COURT OF APPEALS
compel discovery in 2010, he never claimed that OHC withheld information related to
the calculation of his Financial Interest or the investments he made in OHCRE.
{¶7} After our court dismissed an appeal of the 2010 lawsuit, Mr. Crutcher
filed two additional lawsuits against OHC and related parties in 2015. In the first
complaint, Mr. Crutcher alleged that OHC owed him approximately $178,535.49,
representing his shares in OHCRE. In other words, by this point, Mr. Crutcher had (1)
requested and received information concerning the calculation of his Financial
Interest, (2) moved to compel discovery on other issues but not anything pertaining to
the calculation of his Financial Interest, and (3) confirmed OHCRE’s calculation of his
stake in OHCRE.
{¶8} With the parties embroiled in litigation, in December 2015, OHC and
OHCRE went into forbearance with their senior lender, U.S. Bank. Based on this turn
of events, Dr. Broun and OHC demanded that Mr. Crutcher sign a subordination
agreement, as requested by U.S. Bank. Section 6.5(c)(2) of the Operating Agreement,
a provision concerning a former member’s payout of their Financial Interest, provides
“as a precondition to receiving any payment from the Company * * * [Mr. Crutcher]
shall execute any subordination agreement requested by any lenders or other credit
providers to the Company or any of its subsidiaries.” After fits and starts of
negotiation over the subordination agreement, Mr. Crutcher never signed it, and
OHCRE’s monthly payments to him ceased. By this point, OHCRE had made 64
monthly payments to Mr. Crutcher, but it still owed him $91,968.57.
{¶9} As the litigation dragged on, the parties started discussing settlement.
In December 2016, Mr. Crutcher and OHC entered into a settlement agreement (the
“Settlement Agreement”). Although the settlement included a broad release against
4
OHIO FIRST DISTRICT COURT OF APPEALS
OHC and its affiliates, the agreement included a carveout, allowing Mr. Crutcher to
pursue “any sums that Crutcher is owed, or claims to be owed, from OHC Real Estate,
LLC.” In other words, this settlement did not resolve the dispute over the Financial
Interest payouts that lies at the heart of the present litigation.
{¶10} Meanwhile, business conditions changed for OHCRE, and its board
ultimately decided to liquidate its assets, setting in motion a process that would lead
to the dissolution of OHCRE. That meant that assets would be sold, and debts
(including Mr. Crutcher’s) would need to be paid. Happily, OHCRE fetched more for
the assets than it had in debt, and thus it began carving up the proceeds. OHCRE
eventually determined that Mr. Crutcher’s pro-rata share of the liquidation proceeds
based off his remaining debt was $149,139. This calculation inured to his benefit
because his Financial Interest (i.e., the debt owed to him) at that time totaled only
$91,968.57.
{¶11} Nevertheless, that prompted the next salvo in the parties’ battle. Mr.
Crutcher insisted that the OHCRE defendants were hiding information from him
about the relevant calculations, whereas they countered that they had divulged
everything that was pertinent. With everyone at an impasse, Mr. Crutcher filed this
suit in 2018 against the OHCRE defendants asserting 11 claims, including a breach of
contract claim and a failure to pay liquidation proceeds claim. The OHCRE defendants
responded with three counterclaims, asserting two separate breach of settlement
agreements claims.
{¶12} Although Mr. Crutcher had previously calculated his Financial Interest
in litigation as $178,535.49—and accepted five years of monthly payments based off
that amount—he declared in the present complaint that he is owed a total “of
5
OHIO FIRST DISTRICT COURT OF APPEALS
$3,422,000 to $5,658,000.” Later in the litigation, after the trial court asked him to
calculate his damages, he pivoted, alleging that “the amount owed Crutcher as of June
1, 2021 with prejudgment interest is $659,639.”
{¶13} After both parties filed cross-motions for summary judgment and after
the trial court asked the parties to submit calculations for damages, the court issued a
series of rulings germane to this appeal: (1) it granted summary judgment for Mr.
Crutcher for his breach of contract and liquidation proceeds claims, awarded him
$149,573.09, and granted judgment in his favor for the OHCRE defendants’ non-
disparagement claim; (2) it granted summary judgment in favor of the OHCRE
defendants for the remaining claims brought by Mr. Crutcher, and for their breach of
settlement counterclaim, awarding them $70,000; and (3) it concluded that Mr.
Crutcher was not a member of OHCRE after July 1, 2010. Those rulings triggered an
appeal (by Mr. Crutcher) with six assignments of error, and a cross-appeal (by the
OHCRE defendants) with two assignments of error.
II.
A.
{¶14} In his first assignment of error, Mr. Crutcher asserts that the trial court
erred when it limited his damages to $149,573.09 on his breach of contract and
liquidation proceeds claims. The trial court rejected the higher damage amounts that
Mr. Crutcher advanced and invoked the waiver by estoppel doctrine to limit Mr.
Crutcher’s damages due to his acceptance of payments for over five years, his
representations to the court in earlier litigation of a Financial Interest that comported
with the OHCRE defendants’ calculations, and his failure to contest these amounts
6
OHIO FIRST DISTRICT COURT OF APPEALS
across years of litigation. For the reasons that follow, we agree with the trial court’s
conclusion.
{¶15} “ ‘[W]aiver by estoppel’ exists when the acts and conduct of a party are
inconsistent with an intent to claim a right, and have been such as to mislead the other
party to his prejudice and thereby estop the party having the right from insisting upon
it.” (Emphasis omitted.) Natl. City Bank v. Rini, 162 Ohio App.3d 662, 2005-Ohio-
4041, 834 N.E.2d 836, ¶ 24 (11th Dist.), quoting Mark-It Place Foods, Inc. v. New Plan
Excel Realty Trust, Inc., 156 Ohio App.3d 65, 2004-Ohio-411, 804 N.E.2d 979, ¶ 57
(4th Dist.). Whether a party’s conduct constituted a waiver generally presents a factual
question. Mark-It Place Foods, Inc. at ¶ 58 (“If [plaintiff] knew of the breach * * * but
represented to [defendant] that no breach had occurred * * * this could constitute a
waiver of its rights. Again, this issue is best left for final determination by the trier of
fact.”). And, of course, we review a grant of summary judgment de novo. Milatz v.
City of Cincinnati, 1st Dist. Hamilton No. C-180272, 2019-Ohio-3938, ¶ 6.
{¶16} The trial court determined that while Mr. Crutcher was in active dispute
and litigation with the OHCRE defendants, he accepted 64 monthly payments from
OHCRE between 2010 to 2015, totaling $114,778.24 (based on the aggregate $178,000
figure). Now Mr. Crutcher claims that OHCRE duped him by concealing relevant
financial documents which should liberate him from his prior actions.
{¶17} Yet while allowing the OHCRE defendants to fill his bank account 64
times, he never once protested the value of those deposits. During his deposition, Mr.
Crutcher maintained that the payments ran afoul of the mandates of the Operating
Agreement. However, in response to questioning about OHCRE’s failure to apply a 15
percent compounding interest rate to an account in his Financial Interest, Mr.
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OHIO FIRST DISTRICT COURT OF APPEALS
Crutcher admits he “had other issues that were more important * * * I’m not supposed
to say this, I guess, but I consulted with my lawyer about whether it was okay to cash
the check * * * this was an issue that would be dealt with later.” In other words, he
specifically knew that (according to him) OHCRE was paying him the wrong amount
of money, but he sounded no alarm.
{¶18} We also must emphasize that Mr. Crutcher was a very sophisticated
party—if anyone could detect aberrant calculations, he could. After all, he developed
the idea to form OHCRE in the first place, he reviewed the iterations of the Operating
Agreement multiple times before its finalization, and he was one of two managers of
OHCRE at its inception—Mr. Crutcher was intimately familiar with the operations of
OHCRE and knew exactly how to calculate his Financial Interest. Moreover, Mr.
Crutcher’s Financial Interest is predicated on his own investments in OHCRE,
investments that he should certainly have knowledge of.
{¶19} And for years prior to this litigation, Mr. Crutcher saw eye to eye with
the OHCRE defendants concerning the value of his Financial Interest. He claimed the
amount to be $178,535.49 in his complaint in 2010, repeated that again in his
complaint in 2015, during a deposition in 2015 declared he was owed “[s]omewhere in
the ballpark of $100,000” (which corresponds to the about $90,000 outstanding at
the time), and in a summary judgment briefing in 2016, he alleged that his debt was
“originally approximately $180,000.00 and is currently approximately $100,000.”
These aren’t accidental slips of the tongue—rather, they represent a consistent position
he took in litigation that stands at odds with his present posture.
{¶20} In light of nearly six years of consistent actions and representations by
Mr. Crutcher, the OHCRE defendants established clear, unequivocal and decisive
8
OHIO FIRST DISTRICT COURT OF APPEALS
actions by him compelling the grant of summary judgment. Pollard v. Elber, 2018-
Ohio-4538, 123 N.E.3d 359, ¶ 35 (6th Dist.) (“A party asserting waiver must prove it
by establishing a clear, unequivocal, decisive act by the other party, demonstrating the
intent to waive.”); Rayl v. East Ohio Gas Co., 46 Ohio App.2d 175, 179, 348 N.E.2d
390 (9th Dist.1975) (“[P]laintiffs accept[ed] quarterly payments from defendant for a
period of fifteen months after this action was originally filed, * * * [and] they did act
in a manner inconsistent with the attempted termination of the agreements. Because
plaintiffs accepted the benefits of their agreement during the pendency of this
litigation, they are estopped from pursuing this action at this time.”); Quadrant
Exploration, Inc v. Greenwood, 4th Dist. Washington No. 82 X 29, 1983 Ohio App.
LEXIS 14550, *7 (Aug. 15, 1983) (“[A]ppellant, by knowingly accepting the delay rental
payments for the years 1978, 1979 and 1980, has ratified the 1973 lease to [appellee]
and is now estopped to deny the validity of such lease.”); Ultimate Salon & Spa, Inc.
v. Legends Constr. Group, 2019-Ohio-2506, 139 N.E.3d 445, ¶ 38 (11th Dist.) (“Here,
it is clear that, due to the length of time that passed while [appellee] accepted the
continuing rent without objection, an implied contract arose, and [appellee] accepted
a new lease term governed by the provisions of the original lease.”).
{¶21} Resisting this result, Mr. Crutcher claims that the Operating
Agreement’s non-waiver provision bars any waiver by estoppel claim, and the lack of
“clean hands” should likewise preclude summary judgment. We consider the non-
waiver provision: “the failure of any party to seek redress for violation of or to insist
upon the strict performance of any covenant or condition of this Operating Agreement
shall not prevent a subsequent act, which would have originally constituted a violation,
from having the effect of an original violation.”
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶22} As the OHCRE defendants correctly highlight, this provision only
applies to “passive waiver,” or a “failure” to act, and not to the affirmative conduct that
fills the record in this case. State ex rel. Morrison v. Wiener, 2017-Ohio-364, 83
N.E.3d 292, ¶ 30 (9th Dist.) (“[N]onwaiver clauses may not preclude a trial court from
finding a waiver of rights where a party acts in an affirmative manner evincing an
intent to waive contractual provisions.”). Mr. Crutcher’s affirmative acceptance of
payments for 64 months while simultaneously agreeing with that amount in court does
not implicate the non-waiver provision.
{¶23} Mr. Crutcher also accuses the OHCRE defendants of lacking “clean
hands” due to their misrepresentations and refusal to provide him with information,
featuring that as a barrier to the assertion of an equitable defense. But we fail to see
where he raised this point below, and thus we find it waived. See HSBC Bank USA,
N.A. v. Banks, 8th Dist. Cuyahoga No. 111241, 2022-Ohio-3044, ¶ 22 (“Appellant did
not file an answer and assert [the doctrine of unclean hands] at the trial-court level. It
is well established that arguments a party fails to raise in the trial-court cannot be
considered for the first time on appeal.”). Regardless, Mr. Crutcher presents this point
in only a paragraph of his appellate brief, devoid of record citations. App.R. 16(A)(7).
To establish the clarity of an unclean hands defense sufficient to defeat the waiver by
estoppel claim, Mr. Crutcher must do more than that: “ ‘[U]nclean hands are not to be
lightly inferred. They must be established by clear, unequivocal and convincing
evidence.’ ” State ex rel. Doran v. Preble Cty. Bd. of Commrs, 2013-Ohio-3579, 995
N.E.2d 239, ¶ 24 (12th Dist.), quoting Hoover Transp. Servs, Inc. v. Frye, 77
Fed.Appx. 776, 784 (6th Cir.2003).
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶24} And while Mr. Crutcher asserts that waiver by estoppel typically poses a
factual question, necessitating a trial, he fails to identify any material dispute of fact
that would prevent the issuance of summary judgment on the state of this record. We
accordingly agree with the trial court’s decision to apply waiver by estoppel, and we
overrule Mr. Crutcher’s first assignment of error.
B.
{¶25} In his second assignment of error, Mr. Crutcher challenges the trial
court’s decision declaring him no longer a member of OHCRE effective July 2010 and
granting summary judgment in favor of the OHCRE defendants for the other nine
counts of his complaint. This assignment covers broad terrain, and necessarily
implicates the third and sixth assignments of error, so we address Mr. Crutcher’s
second, third, and sixth assignments of error together in this section for analytical
ease.
1.
{¶26} We begin with the court’s resolution of Mr. Crutcher’s membership
status. On this issue, the trial court based its decision on the Operating Agreement’s
recognition of the concept of a “Departing Member.” Under section 6.5(a), “Upon the
termination of a Member’s employment with OHC (the ‘Departing Member’) * * * the
Members other than the Departing Member (the ‘Remaining Members’) or the
Company * * * shall purchase from such Departing Member * * * all of the Departing
Member’s Membership Interest in the Company (the ‘Departing Interest’).” Further,
section 6.7 prohibits a Departing Member from receiving any distributions under
section 9.1, which covers general distributions. The Operating Agreement also enables
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OHIO FIRST DISTRICT COURT OF APPEALS
the Departing Member’s interest to be paid over time, as OHCRE elected to do with
respect to Mr. Crutcher.
{¶27} Sifting through these provisions, the trial court concluded that by
becoming a “Departing Member,” Mr. Crutcher was “no longer a member” because he
no longer held an ownership interest—OHCRE had purchased that interest and would
pay him over time consistent with the agreement. This maneuver effectively converted
him from an equity holder to a creditor of the LLC. But Mr. Crutcher views his status
as a “Departing Member” differently, claiming that he should still be entitled to
liquidation proceeds under section 13.3(b)(4). The problem with this position is that
the trial court seemed to agree with it.
{¶28} After all, the court granted him summary judgment on the failure to pay
liquidation proceeds claim and denied OHCRE’s cross-motion on this point. More
importantly, the trial court awarded Mr. Crutcher an amount exceeding his Financial
Interest—one that appears consistent with the liquidation proceeds provision under
Article 13. Although section 6.7 confirms that Departing Members have no right to
distributions under section 9.1, section 13.3(b)(4) (involving liquidation) draws no
distinction between Departing Members and Remaining Members. We accordingly
find nothing amiss with the trial court’s decision regarding liquidation proceeds, nor
with its interpretation of the “Departing Member” provisions.
2.
{¶29} Mr. Crutcher also takes issue with the trial court’s grant of summary
judgment on all of his claims against OHC and Dr. Broun based upon section 2 in the
Settlement Agreement (referenced above). As he reads the Settlement Agreement, he
remained free to pursue claims against Dr. Broun in his capacity as OHCRE manager,
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OHIO FIRST DISTRICT COURT OF APPEALS
as well as against OHC based on actions that occurred after the Settlement
Agreement’s execution. Further, Mr. Crutcher argues that the trial court erroneously
rejected his claim against OHC under the alter ego doctrine.
{¶30} We begin with the Settlement Agreement. Section 2 of the Settlement
Agreement sweeps broadly, releasing OHC and “any * * * employees * * * from any
and all claims * * * which [Mr. Crutcher] has or could have against them arising,
accruing or originating at any time whatsoever.” It is undisputed that Dr. Broun is an
employee of OHC, so the trial court correctly determined that this language in section
2 shielded him. And while section 2 contains a broad release, section 4 provides a
narrow carveout: “the foregoing releases do not extend to any sums that Crutcher is
owed, or claims to be owed, from OHC Real Estate, LLC, an Ohio limited liability
company.”
{¶31} We must effectuate the structure and purpose of the parties’ release.
“[T]he overriding consideration in interpreting a release is to ascertain the intent of
the parties, which intent is presumed to reside in the language the parties chose to
employ in the agreement.” McBroom v. Safford, 10th Dist. Franklin No. 11AP-885,
2012-Ohio-1919, ¶ 12, citing Whitt v. Hutchison, 43 Ohio St.2d 53, 330 N.E.2d 678
(1975). Mr. Crutcher struggles to limit the scope of the release in such a manner as to
permit other claims against Dr. Broun. But section 2 constitutes a broad release.
“Under Ohio law * * * ‘broadly-worded releases are generally construed to include all
prior conduct between the parties, even if the scope of such conduct or its damage is
unknown to the releasor.’ ” State ex rel. Cty. Of Cuyahoga v. Jones Lang LaSalle
Great Lakes Corporate Real Estate Partners, Cuyahoga C.P. No. CV 14 827651, 2016
13
OHIO FIRST DISTRICT COURT OF APPEALS
Ohio Misc. LEXIS 46, *31 (Jan. 26, 2016), quoting Scotts Co. LLC v. Liberty Mut. Ins.
Co., 606 F.Supp.2d 722, 734-735 (S.D.Ohio 2009).
{¶32} “Further Ohio courts will not read exceptions into a release unless the
exclusion of those claims is explicit.” Jones Lang LaSalle at *31, citing Task v. Nat’l
City Bank, 8th Dist. App. No. 65617, 1994 Ohio App. LEXIS 5679, *11 (Dec. 7, 2000).
If Mr. Crutcher wanted to carve any exceptions out of the broad release, he needed to
do so expressly—precisely as he did in section 4. Although he could have sought other
exceptions to pursue individuals like Dr. Broun in different capacities, no such
provision appears in the agreement, and we will not rewrite the agreement after the
fact.
{¶33} Similarly, his effort to insulate post-Settlement Agreement claims is
unavailing. Section 2 protects OHC from claims “arising, accruing or originating at
any time whatsoever.” The crux of the post-agreement claims involves matters that
originated pre-agreement, such as Mr. Crutcher’s investments in OHCRE, the
management of OHCRE’s finances and affairs, and his belief that the OHCRE
defendants mishandled funds owed to him. Given the broad language of the release,
and the connection to pre-Agreement matters, we have no hesitation in deeming these
claims subsumed within the ambit of the Settlement Agreement. To the extent that
any post-agreement fiduciary claims against Dr. Broun fall beyond the scope of the
agreement, however, we find that these claims fail as a matter of law.
{¶34} Such reasoning also spells the demise of Mr. Crutcher’s third
assignment of error. In that respect, Mr. Crutcher challenges the trial court’s grant of
summary judgment in favor of OHC and Dr. Broun on their first counterclaim (for
breach of the Settlement Agreement) because the Settlement Agreement did not
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OHIO FIRST DISTRICT COURT OF APPEALS
accomplish a global release of claims. As we have already determined, however,
section 2 of the Settlement Agreement contains a broad release that goes well beyond
Mr. Crutcher’s limited reading, so we see no error in the trial court’s conclusion that
he violated that provision by suing OHC and Dr. Broun. When a party releases claims,
but then brings suit on them, he does so at his own peril.
{¶35} Mr. Crutcher insists that the Settlement Agreement preserves his right
to pursue OHCRE for his Financial Interest. We agree with him on that point, but that
was not the basis for the trial court’s ruling. To the contrary, the court focused on his
violation of section 2, rather than the permissible claims allowed by section 4 (that he
pursued and prevailed upon). We accordingly overrule Mr. Crutcher’s third
assignment of error.
3.
{¶36} Mr. Crutcher further pursues an alter ego theory—positing that OHC
disregarded OHCRE’s separate legal entity and wielded its assets as if they were OHC’s
to meet its obligations to the detriment of OHCRE’s Departing Members. This
argument fails for two reasons: Ohio Supreme Court precedent prevents this claim
from departing the starting gate, and as discussed above, the Settlement Agreement
shields OHC from claims of this ilk.
{¶37} The basics of an alter ego claim are well-settled: “[w]hen a shareholder
exercises such control over a corporation that the corporation becomes the
shareholder’s alter ego * * * it is unjust to allow the shareholder to use the corporate
form as a shield to escape the consequences of those wrongful acts.” Minno v. Pro-
Fab, Inc., 121 Ohio St.3d 464, 2009-Ohio-1247, 905 N.E.2d 613, ¶ 11, citing Belvedere
Condominium Unit Owners’ Assn. v. R.E. Roark Cos., 67 Ohio St.3d 274, 287, 617
15
OHIO FIRST DISTRICT COURT OF APPEALS
N.E.2d 1075 (1993). But these claims typically involve one corporate entity (or person)
with ownership over the second. Such a situation does not describe OHC and OHCRE
as neither has an ownership interest in the other. Confronted with that scenario in
Minno, the Supreme Court held that one cannot pierce the corporate veil of one
corporation despite sharing common shareholders with the other corporation without
overlapping ownership: “sister corporations are separate corporations and are unable
to exercise control over each other in the manner that a controlling shareholder can.”
Id. at ¶ 13.
{¶38} The situation at hand is no different: Mr. Crutcher alleges that OHC’s
control over OHCRE through “common ownership and management” allowed OHC to
perpetrate its misdeeds against him. But “the common shareholder ownership of
sister corporations does not provide one sister corporation with the inherent ability to
exercise control over the other. Any wrongful act committed by one sister corporation
might have been instigated by the corporation’s owners, but it could not have been
instigated by the corporation’s sister.” Id. at ¶ 12. Mr. Crutcher cannot circumvent
the holding in Minno since neither OHC nor OHCRE has an ownership interest in the
other, and as a testament to that point, he declines to cite or discuss Minno in his
briefing before our court. Thus, the alter ego doctrine simply does not apply.
{¶39} Beyond the effect of Minno, Mr. Crutcher lacks an answer to the
Settlement Agreement and why it would not bar any alter ego claim. The Settlement
Agreement releases OHC, and this alter ego claim seems to fall squarely within the
scope of the broad release. In summary, we conclude that the trial court did not err in
its interpretation and application of the Settlement Agreement.
4.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶40} Finally, Mr. Crutcher insists that the OHCRE defendants committed
bad faith breach of contract, by ceasing to pay him sums owed to him under the
Operating Agreement and trying to force him into a settlement agreement to avoid
paying him more money. Along these lines, he also protests that the OHCRE
defendants failed to provide him with his financial documents to appropriately
calculate his Financial Interest. However, the record does not support these
conjectures.
{¶41} OHCRE stopped sending Mr. Crutcher payments based on his refusal to
sign a subordination agreement required by U.S. Bank. As the reader will recall, the
Operating Agreement specifically obligated him to sign a subordination agreement in
these circumstances. And it was not unreasonable, nor in bad faith, for OHCRE to
insist on compliance with that provision. After OHCRE elected to liquidate its assets,
it then took measures to satisfy Mr. Crutcher’s debt obligation.
{¶42} Likewise, OHCRE did not wield a prospective settlement to his
detriment, any more so than any party in civil litigation tries to exert pressure to
encourage settlement. The OHCRE defendants likely hoped to put an end to a decade’s
worth of litigation between the parties. “The purpose of a settlement agreement is ‘to
terminate a claim by preventing or ending litigation and * * * such agreements are
valid and enforceable by either party.’ ” Brilla v. Mulhearn, 168 Ohio App.3d 223,
2006-Ohio-3816, 859 N.E.2d 578, ¶ 15, quoting Brown v. Dillinger, 9th Dist. Medina
No. 05CA0040-M, 2006-Ohio-1307, ¶ 10. “Settlement agreements are highly favored
by the law.” Brilla at ¶ 15. We simply see no evidence of bad faith in the available
record.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶43} That leaves the question of whether the OHCRE defendants provided
Mr. Crutcher with adequate financial information, which overlaps with his sixth
assignment of error (related to the denial of his motion to compel discovery), so we
will consider these issues together.
{¶44} The fundamental problem with both arguments is that Mr. Crutcher
fails to identify what information, exactly, he lacked. Simply contending that he needs
more financial information is difficult for us to evaluate, given the volume of financial
records that the OHCRE defendants produced in the litigation (including annual
balance sheets for OHCRE, documents related to OHCRE’s liquidation, spreadsheets
showing the distributions of OHCRE assets, and calculations of various Financial
Interests, etc.). And, as we alluded to earlier, Mr. Crutcher—based on his intimate
familiarity with OHCRE—should be able to pinpoint exactly what documents or
categories of information the defendants were hiding. His failure to lend precision to
this claim speaks volumes.
{¶45} In its denial of Mr. Crutcher’s motion to compel, the trial court held that
the OHCRE defendants had appropriately responded to Mr. Crutcher’s discovery
requests, and “simply because the documents do not reflect what Crutcher believes
they should reflect does not mean that [the OHCRE defendants have] not provided the
requested documents.” We agree. We see nothing in the record to substantiate the
improper withholding of financial data to which Mr. Crutcher should have been
entitled. This establishes that the trial court did not abuse its discretion in denying
the motion to compel (sixth assignment of error), nor did it err in the pertinent
summary judgment rulings (second assignment of error) related to this point.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶46} For all of the aforementioned reasons, we overrule Mr. Crutcher’s
second, third, and sixth assignments of error.
C.
{¶47} In Mr. Crutcher’s fourth assignment of error, he protests the trial court’s
failure to award pre and postjudgment interest as to his breach of contract claims,
pointing to R.C. 1343.03. Although the OHCRE defendants insist that he waived this
claim, when asked to calculate his damages before the trial court, Mr. Crutcher
provided a calculation that included prejudgment interest. We find this measure
sufficient for preservation’s sake.
{¶48} First, we consider the postjudgment claim, governed by R.C.
1343.03(B): “interest on a judgment, decree, or order for the payment of money
rendered in a civil action based on tortious conduct * * * shall be computed from the
date the judgment, decree or ordered is rendered.” Postjudgment interest is simply
operative by statute, and nothing in the record indicates that the trial court denied Mr.
Crutcher postjudgment interest. See Non-Employees of Chateau Estate Resident
Assn. v. Chateau Estates, Ltd., 2d Dist. Clark Nos. 2005-CA-75, 2005-CA-90, 2005-
CA-91, 2005-CA-101, and 2005-CA-116, 2007-Ohio-319, ¶ 72 (“[B]ecause nothing in
the record indicates that the trial court has denied post-judgment interest or that it
will do so in the future, we overrule the * * * assignment of error.”). Moreover, because
postjudgment interest is necessarily added on top of the judgment amount, the trial
court could not include a calculation for this in the judgment (because it does not know
when the defendant will pay). Therefore, we see no error in the trial court’s failure to
include postjudgment interest in the damage award.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶49} With respect to prejudgment interest, Ohio law requires imposition of
prejudgment interest on contract claims. R.C. 1343.03(A) (“[W]hen money becomes
due and payable upon * * * all judgment, decrees, and orders of any judicial tribunal
for the payment of money arising out of tortious conduct or a contract or other
transaction, the creditor is entitled to interest at the rate per annum determined
pursuant to section 5703.47 of the Revised Code * * *.”); see Cantwell Mach. Co. v.
Chicago Mach. Co., 184 Ohio App.3d 287, 2009-Ohio-4548, 920 N.E.2d 994, ¶ 30
(10th Dist.) (“1343.03(A) requires an award of prejudgment interest on contract
claims. Once a plaintiff receives judgment on a contract claim and requests
prejudgment interest, the trial court must award prejudgment interest under
R.C.1343.03(A).”).
{¶50} Although a party can certainly waive prejudgment interest by failing to
request it (as the OHCRE defendants claim occurred here), in the relevant damage
calculation, Mr. Crutcher specifically sought prejudgment interest, calculated based
on the statutory interest rate. The trial court never specifically rejected this claim, and
it might simply have been an oversight. Regardless, we cannot calculate the
appropriate amount of prejudgment interest because the trial court will need to
determine the appropriate starting date for interest to run. We accordingly sustain
the fourth assignment of error in part, insofar as the court declined to award
prejudgment interest, and we remand for the limited purpose of determining the date
on which prejudgment interest began to run and the appropriate amount of interest,
consistent with the statute.
D.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶51} In Mr. Crutcher’s fifth assignment of error, he claims the trial court
erred by excluding his expert’s testimony for failure to provide an expert report.
Specifically, he asserts that the relevant scheduling order instructed that “Plaintiff’s
experts and all affirmative experts to be identified and reports, if any” be submitted by
December 13, 2019. Therefore, because the order did not require reports, so his
reasoning goes, he should not be faulted for failing to provide one. The only problem
is that Mr. Crutcher misquotes the scheduling order in question, which tellingly did
not include the “if any” caveat. The order thus required the production of expert
reports, and Mr. Crutcher fails to offer any explanation for his erroneous quotation.
{¶52} The scheduling order’s directive also comports with the relevant local
rules, which require that a party submit the “opinions” of experts prior to trial. See
Loc.R. 15(A) of the Court of Common Pleas of Hamilton County (“At the conclusion of
the case management conference, a case management order shall be prepared and
entered. The order shall include * * * the identification of any expert witness and their
opinions.”); Loc.R. 15(B)(2)(f) of the Court of Common Pleas of Hamilton County (If
a judge elects to have a pretrial conference before trial, “all trial attorneys shall file
with the judge * * * copies of available opinions of all persons who may be called as
expert witnesses.”). About ten days after Mr. Crutcher failed to comply with this
deadline, the OHCRE defendants moved to exclude his expert witnesses and expert
testimony. Pursuant to Civ.R. 37(B)(1), a court may “issue further just orders” when a
party “fails to obey an order to provide or permit discovery.”
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶53} In late March 2020 (i.e., three months after the deadline),1 the trial
court considered the matter, but did not immediately strike the expert testimony.
Instead, it provided Mr. Crutcher five additional business days to produce an expert
report, bending over backwards to give him another chance. Five days came and went
without any expert report, but the court did not actually strike the expert testimony
until the end of June 2020. Against this backdrop, Mr. Crutcher fails to explain why
he could not have complied—at some point—with the requirement in the scheduling
order and the local rules to submit an expert report. Nor can we evaluate any
prejudicial impact by the exclusion of this expert testimony since we see no proffer or
similar evidence in the record that would have elaborated on the nature of this expert
testimony. Regardless, we see no abuse of discretion based upon the record at hand.
III.
{¶54} Turning to the OHCRE defendants’ cross-appeal, they assert the trial
court erred in granting summary judgment for Mr. Crutcher for his breach of contract
and liquidation proceeds claims, and in finding that he had not breached the
Settlement Agreement’s non-disparagement provision.
A.
{¶55} In the OHCRE defendants’ first assignment of error, they maintain that
the trial court erred by granting judgment in favor of Mr. Crutcher for his breach of
contract and liquidation proceeds claims. They base their claim on his failure to
execute the subordination agreement requested by U.S. Bank as required under
1Needless to say, this deadline fell at the outset of the Covid-19 pandemic, but the Supreme Court’s
tolling order provides that specific court orders supersede the tolling provisions. In re Tolling of
Time Requirements Imposed by Rules Promulgated by the Supreme Court & Use of Tech., 158
Ohio St.3d 1447, 1448, 2020-Ohio-1166, 141 N.E.3d 974. Also, we see no argument advanced by
Mr. Crutcher that he simply needed some reasonable additional time to procure the report.
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OHIO FIRST DISTRICT COURT OF APPEALS
section 6.5(c)(2) of the Operating Agreement, essentially arguing that his breach of
that provision of the Operating Agreement excused further performance by them. We
review this question of law de novo. Goodyear Tire & Rubber Co. v. Aetna Cas. & Sur.
Co., 95 Ohio St.3d 512, 2002-Ohio-2842, 769 N.E.2d 835, ¶ 4.
{¶56} To restate the sequence of events, in September of 2010, OHCRE began
making monthly payments to Mr. Crutcher as part of his Financial Interest owed as a
Departing Member. But those payments came to a halt in December 2015 when OHC
and OHCRE went into forbearance with U.S. Bank, and Mr. Crutcher elected to not
sign a subordination agreement. The Operating Agreement, in pertinent part,
provides, “as a precondition to receiving any payment from the Company * * * [Mr.
Crutcher] shall execute any subordination agreement requested by any lenders or
other credit providers to the Company or any of its subsidiaries.”
{¶57} But the OHCRE defendants’ argument falters for two reasons. First, the
OHCRE defendants demonstrate no evidence that Mr. Crutcher’s failure to sign a
subordination agreement prejudiced them in any way. In other words, at least as far
as the record discloses, U.S. Bank took no adverse action against the OHCRE
defendants based on the missing subordination agreement. “[N]ot all breaches are
created equal. A failure to perform a promise that is nominal, trifling, technical, or
slight does not excuse performance under the contract by the nonbreaching party.”
H&H Glass, Inc. v. Empire Bldg. Co., LLC, 1st Dist. Hamilton Nos. C-150059 and C-
150227, 2016-Ohio-3029, ¶ 7. “ ‘[A] breach of a portion of the terms of a contract does
not discharge the obligations of the parties to the contract, unless performance of
those terms is essential to the purpose of the agreement.’ ” Id., quoting Software
23
OHIO FIRST DISTRICT COURT OF APPEALS
Clearing House, Inc. v. Intrak, Inc., 66 Ohio App.3d 163, 170, 583 N.E.2d 1056 (1st
Dist.1990).
{¶58} We, of course, understand the purpose of the subordination agreement
requirement and could certainly envision circumstances when its breach would
constitute a material breach that would excuse further performance. But on this
record, the OHCRE defendants have failed to generate a material dispute of fact on
this point, and the trial court correctly rejected their argument.
{¶59} Second, even if the breach could be considered material, OHCRE was
still required to pay Mr. Crutcher his share of the liquidation proceeds pursuant to
section 13.3(b)(4) of the Operating Agreement, and that provision did not impose any
subordination agreement mandate. As we determined above, Mr. Crutcher was
rightfully awarded liquidation proceeds pursuant the trial court’s decision. Because
the trial court correctly awarded Mr. Crutcher his share of liquidation proceeds, it
essentially moots the subordination agreement debate. We accordingly overrule the
OHCRE defendants’ first cross-assignment of error.
B.
{¶60} In the OHCRE defendants’ second cross-assignment of error, they
maintain that the trial court should not have granted summary judgment on their
breach of non-disparagement provision claim. Section 7 of the Settlement Agreement
prohibits Mr. Crutcher from communicating in any way “that might be reasonably
construed to be derogatory or critical of, or negative toward,” OHC or any of its
employees or representatives.
{¶61} The OHCRE defendants identify a handful of statements that allegedly
run afoul of this provision, but most of these are statements directly made in litigation.
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OHIO FIRST DISTRICT COURT OF APPEALS
They seize upon various comments from the 2018 complaint, accusing OHC and Dr.
Broun of “seek[ing] to mislead this court” through a series of “misrepresentations,
omissions and false assertions” as well as subsequent pleadings accusing the OHCRE
defendants “and/or their counsel” of “engaging in gamesmanship,
mischaracterizations, selective and out of context quotations, misleading or false
assertions, and unfounded arguments to try to define a false narrative.”
{¶62} The trial court found that statements in this vein fell within the ambit of
the litigation privilege, which “provides absolute immunity from civil suits for
defamatory statements made during and relevant to judicial proceedings * * * * [it] is
designed to protect ‘the integrity of the judicial process’ by affording participants in
litigation with immunity from future lawsuits over relevant statements made during
judicial proceedings.” (Emphasis deleted.) Reister v. Gardner, 164 Ohio St.3d 546,
2020-Ohio-5484, 174 N.E.3d 713, ¶ 10,14, quoting Willitzer v. McCloud, 6 Ohio St.3d
447, 449, 453 N.E.2d 693 (1983). We agree with the trial court’s assessment here—
these challenged statements were all made in pleadings within the litigation, and we
see no reason why the privilege should not apply.
{¶63} In an email to OHC’s counsel and Dr. Broun, Mr. Crutcher accused the
two of making “an affirmative misrepresentation” and “mere posturing” and
speculated about what they were “trying to hide.” The trial court aptly concluded that
“no reasonable minds can find the alleged conduct by [Crutcher] * * * to violate the
non-disparagement clause in the settlement agreement.” Again, we agree, for two
reasons. First, the provision in the Settlement Agreement was designed to protect each
party from statements made to third parties, not statements made to each other.
Second, an email to counsel about matters occurring in litigation strikes us as “relevant
25
OHIO FIRST DISTRICT COURT OF APPEALS
to judicial proceedings.” Reister at ¶ 10. Both reasons support the trial court’s
determination, and we accordingly overrule the OHCRE defendants’ second cross-
assignment of error.
* * *
{¶64} In light of the foregoing analysis, we overrule the two cross-assignments
of error raised by the OHCRE defendants. We sustain Mr. Crutcher’s fourth
assignment of error concerning prejudgment interest, but overrule his remaining
assignments of error. Accordingly, the judgment of the trial court is affirmed in part,
reversed in part, and the cause is remanded to the trial court to determine the amount
of prejudgment interest to be awarded to Mr. Crutcher and to enter judgment for that
amount, and for further proceedings consistent with this opinion.
Judgment affirmed in part and reversed in part and cause remanded.
CROUSE and WINKLER, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
26 | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487139/ | [Cite as State v. Bryant, 2022-Ohio-4108.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220144
TRIAL NO. 21CRB-1591
Plaintiff-Appellee, :
:
VS. O P I N I O N.
:
KHALID BRYANT, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Municipal Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 18, 2022
Emily S. Woerner, City Solicitor, William T. Horsley, Chief Prosecuting Attorney,
and Elyse Deters, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Krista Gieske, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} Defendant-appellant Khalid Bryant offered to drive Janell Roberts, the
mother of his daughter, home one night from her father’s house. After Mr. Bryant
pulled off at a gas station, an argument between the two ensued. During the dispute,
Mr. Bryant allegedly grabbed her chin, squeezed her cheeks with his hand, and later
struck her across her right cheek. After this incident, Mr. Bryant was charged with
first-degree misdemeanor domestic violence in violation of R.C. 2919.25. Following
a bench trial, the court found him guilty. He now appeals, presenting a single
assignment of error attacking the sufficiency of the evidence supporting his
conviction and raising a manifest weight of the evidence challenge. After a thorough
review of the record, however, we overrule his assignment of error and affirm the
trial court’s judgment.
I.
{¶2} Ms. Roberts and Mr. Bryant began their relationship as friends but
unexpectedly had a baby girl together. Although Ms. Roberts enjoys full custody of
the child, the two agreed to raise her together. According to Ms. Roberts’ testimony,
on a night in late 2020/early 2021, she was at her father’s house when Mr. Bryant
arrived to retrieve their daughter. Mr. Bryant offered to provide her a ride home on
his way.
{¶3} En route, Mr. Bryant stopped at a busy Shell gas station and parked to
the left of a car occupied by four or five people—Ms. Roberts sat in the passenger seat
of the car with their daughter in the back. Ms. Roberts noticed the man in the
neighboring car’s passenger seat staring at her and, under her breath, she muttered,
“What are they looking at?” Mr. Bryant sauntered out of the car and approached the
2
OHIO FIRST DISTRICT COURT OF APPEALS
neighboring car’s passenger side, confronting that passenger. The discussion
fortunately did not escalate, however, and eventually Mr. Bryant proceeded to walk
inside the gas station.
{¶4} Meanwhile, Ms. Roberts opened her door and asked the passenger what
Mr. Bryant said to him. Noticing this exchange, Mr. Bryant turned around and came
back out of the store, accusing her of being disrespectful. Ms. Roberts retorted that
she was not “his girl” and admonished him to go back into the store and get what he
needed. She then resumed her conversation with the neighboring car before Mr.
Bryant came back out again.
{¶5} According to her testimony, Mr. Bryant responded by grabbing Ms.
Roberts’ chin, forcing her to look at him, and reiterating her disrespectfulness. Ms.
Roberts warned him not to put his hands on her, reminding him that the two were not
in a relationship but were merely raising a child together. The two continued to argue
for a bit, chest to chest.
{¶6} Ms. Roberts eventually took a step back, raising her hands to create
space in a defensive posture. Mr. Bryant then struck her across the cheek, causing her
cheek to swell and leaving a bruise. Ms. Roberts eventually went home, although it
remains unclear whether Mr. Bryant drove her home or if she walked. After a
discussion with her father, Ms. Roberts filed a report with the police to ensure her
safety. Mr. Bryant was charged with domestic violence in January 2021, and a trial
convened in March of 2022.
{¶7} At trial, confusion reigned about when the incident occurred—the city
prosecutor questioned Ms. Roberts where she encountered Mr. Bryant on January 22,
2021, to which she insisted “[the incident] didn’t happen in January.” On cross-
3
OHIO FIRST DISTRICT COURT OF APPEALS
examination, Ms. Roberts insisted that the incident occurred on December 22, 2020,
but suggested that the case was filed in January 2021—and Mr. Bryant’s counsel
clarified that her 911 call took place on January 24, 2021. Also on cross, defense
counsel inquired whether Mr. Bryant was indeed the child’s father. In response, Ms.
Roberts indicated that she had a DNA test submitted which allegedly established a
99.99% likelihood of paternity. On redirect, Ms. Roberts testified that Mr. Bryant
provided for the child as best as he could and often referred to the child as his. She
also mentioned possessing photos of her injuries that she gave to parole to assist in
their investigation of the incident—photos that did not emerge at trial.
{¶8} In finding Mr. Bryant guilty, the trial court indicated that it believed the
assault had occurred by virtue of Ms. Roberts’ testimony and further concluded that
the date of the incident was not an element of the offense, sidestepping the confusion.
Mr. Bryant appeals, asserting that his conviction was not supported by sufficient
evidence and ran contrary to the manifest weight of the evidence.
II.
{¶9} We filter Mr. Bryant’s sufficiency and manifest weight claims through
familiar standards: “To determine whether a conviction is supported by sufficient
evidence, ‘[t]he relevant inquiry is whether, after viewing the evidence in a light most
favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime proven beyond a reasonable doubt.’ ” State v. Walker, 150 Ohio
St.3d 409, 2016-Ohio-8295, 82 N.E.3d 1124, ¶ 12, quoting State v. Jenks, 61 Ohio St.3d
259, 574 N.E.2d 492 (1991), paragraph two of the syllabus. And “ ‘[w]here reasonable
minds can reach different conclusions upon conflicting evidence, determination as to
what occurred is a question for the trier of fact. It is not the function of an appellate
4
OHIO FIRST DISTRICT COURT OF APPEALS
court to substitute its judgment for that of the factfinder.’ ” (Emphasis removed) State
v. Shabazz, 146 Ohio St.3d 404, 2016-Ohio-1055, 57 N.E.3d 1119, ¶ 20, quoting Jenks
at 279. Whether the evidence sufficed to support the conviction presents a legal
question that we review de novo. State v. Ellison, 178 Ohio App.3d 734, 2008-Ohio-
5282, 900 N.E.2d 228, ¶ 9 (1st Dist.).
{¶10} In reviewing whether the conviction runs counter to the manifest weight
of the evidence, we sit as a “thirteenth juror.” State v. Thompkins, 78 Ohio St.3d 380,
388, 678 N.E.2d 541 (1997). In other words, we review the evidence, the credibility of
witnesses, and the entire record. Id. But we will only reverse if the trial court “ ‘clearly
lost its way and created such a manifest miscarriage of justice that the conviction must
be reversed and a new trial ordered.’ ” Id. at 387, quoting State v. Martin, 20 Ohio
App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983).
A.
{¶11} Mr. Bryant initially takes issue with the adequacy of the evidence for the
trial court to find that he was the biological father of Ms. Roberts’ daughter. He
highlights that a first-degree misdemeanor domestic violence conviction requires a
familial relationship between the accused and the victim, R.C. 2919.25(A),
emphasizing the lack of paternity evidence as the missing link in the state’s case. Mr.
Bryant faults the state for failing to produce the DNA test (referenced by Ms. Roberts)
under the best evidence rule, Evid.R. 1002, much less any expert testimony to
authenticate the test and its results.
{¶12} But the state is by no means obligated to tender formal paternity or
related DNA documentation in order to establish the family member requirement.
State v. Davis, 5th Dist. Licking No. 13 CA 55, 2014-Ohio-1197, ¶ 36 (“[W]e are
5
OHIO FIRST DISTRICT COURT OF APPEALS
unpersuaded that the State must produce formal documentation of civil paternity
establishment in order to meet the ‘family member’ element * * * the State can utilize
testimonial evidence going to the issue of paternity, subject to a credibility
determination by the jurors or the finder of fact.”). Instead, Ms. Roberts’ testimony
sufficed to satisfy this element at trial.
{¶13} According to Ms. Roberts, although the two were never in a formal
relationship, she and Mr. Bryant agreed to raise their child together. To that end, Mr.
Bryant took care of the child and sought to provide for her even though Ms. Roberts
had custody—he procured clothes and toys for the child, and at times retrieved and
took care of the child, as he did on the night in question. Consistent with that conduct,
Ms. Roberts testified that Mr. Bryant acknowledged, on numerous occasions, that the
child was indeed his daughter.
{¶14} Viewed in a light most favorable to the state, Walker, 150 Ohio St.3d
409, 2016-Ohio-8295, 82 N.E.3d 1124 at ¶ 12, this testimony carried the state’s
burden. See State v. Parish, 5th Dist. Stark No. 2013CA00141, 2014-Ohio-1410
(affirming the trial court’s conclusion that the state had met its burden of production
for the family member element after the victim provided testimony of the family
relationship between her and the defendant, and the defendant did not present
evidence to challenge the testimony). Although reasonable minds can disagree about
conflicting evidence and testimony, Shabazz, 146 Ohio St.3d 404, 2016-Ohio-1055, 57
N.E.3d 1119 at ¶ 20, the trial court found Ms. Roberts credible, and Mr. Bryant fails to
point to any conflicting evidence—he merely cries foul regarding the absence of the
DNA test. But Ms. Roberts’ testimony obviated the need for the state to dig up the
actual report (particularly in the absence of any contradictory evidence).
6
OHIO FIRST DISTRICT COURT OF APPEALS
{¶15} Relatedly, Mr. Bryant protests the admission of lay testimony about the
DNA test results—he suggests that the court should have required the state to offer the
test itself and call a separate expert witness to testify about the DNA test results. But
as the state highlights, Mr. Bryant failed to object or move to strike Ms. Roberts’
testimony concerning the DNA test results, so he did not preserve any hypothetical
error for appellate review. See State v. Mitchell, 8th Dist. Cuyahoga No. 88977, 2007-
Ohio-5994, ¶ 83 (“Appellant did not object to [the] testimony. Failure to object to the
* * * testimony waives all but plain error on appeal. State v. Bays, 15 26-27, 1999 Ohio
216, 716 N.E.2d 1126. We do not find plain error in allowing this testimony, especially
in light of the other overwhelming evidence of appellant’s guilt.”). This testimony may
not have elicited an objection because the state did not seek to admit the DNA test into
evidence—Ms. Roberts simply explained her understanding of the DNA test results in
response to questioning about the nature of her relationship to Mr. Bryant and her
child. We see no plain error with respect to this testimony in light of the overall record
at hand. And we find that the state presented sufficient evidence for the trial court to
determine that a family relationship existed between Mr. Bryant and Ms. Roberts; we
accordingly reject the sufficiency claim.
B.
{¶16} Turning to his manifest weight argument, Mr. Bryant protests that the
trial court lost its way in finding the evidence credible that he caused physical harm
to Ms. Roberts. In disputing this point, Mr. Bryant insists that no third party
contacted the police or testified at trial about the incident, even though it allegedly
occurred in front of a group of people. Mr. Bryant also highlights Ms. Roberts’ riding
home with him after the incident (a contested point, as noted above) and delaying a
7
OHIO FIRST DISTRICT COURT OF APPEALS
week (according to her testimony) before calling the police. Overall, he dubs her
testimony “self-serving” and emphasizes the lack of photographs of the injuries,
despite her acknowledgment that such photographs exist.
{¶17} Essentially, Mr. Bryant targets Ms. Roberts’ credibility as a witness. But
“it is well settled law that matters as to the credibility of witnesses are for the trier of
fact to resolve.” State v. Ham, 1st Dist. Hamilton No. C-170043, 2017-Ohio-9189, ¶
21. Simply because the trial court believed Ms. Roberts does not jeopardize the
integrity of the conviction. See State v. Robinson, 12th Dist. Butler No. CA2018-08-
163, 2019-Ohio-3144, ¶ 29, quoting State v. Lunsford, 12th Dist. Brown No. CA2010-
10-021, 2011-Ohio-6529, ¶ 17 (“ ‘[W]hen conflicting evidence is presented at trial, a
conviction is not against the manifest weight of the evidence simply because the trier
of fact believed the prosecution testimony.’ ”). As the trial court aptly put, “I’m
otherwise convinced by the prosecuting witness [Ms. Roberts] that this occurred.” We
see nothing in the record to cast doubt on the conviction or to suggest that the trial
court went astray here.
{¶18} Finally, Mr. Bryant seizes upon the discrepancy about the date of the
incident.1 This issue arose when the prosecutor questioned Ms. Roberts about the
incident happening on January 22, 2021, because the charging document reflects that
date. But she insisted that everything transpired on December 22, 2020. Defense
counsel highlighted on cross that the police report documented her calling 911 on
January 24, 2021, but she did not budge in her account. It appears that Ms. Roberts
was mistaken regarding the operative date, but we fail to see how this generates
1Mr. Bryant concedes that he waived any challenge to any defect in the complaint by failing to raise
that matter below.
8
OHIO FIRST DISTRICT COURT OF APPEALS
manifest weight concern. Despite the confusion, the trial court elected to believe Ms.
Roberts and her testimony, recognizing that the date issue was not a material point in
the context of this prosecution. This inconsistency, standing alone, fails to warrant
reversal on manifest weight grounds.
* * *
{¶19} In light of the foregoing analysis, we overrule Mr. Bryant’s assignment
of error and affirm the judgment of the trial court.
Judgment affirmed.
MYERS, P.J., and CROUSE, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
9 | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487133/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/18/2022 08:06 AM CST
- 341 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
Cite as 312 Neb. 341
Mid America Agri Products/Wheatland
Industries LLC, appellant, v.
Perkins County Board of
Equalization, appellee.
___ N.W.2d ___
Filed August 26, 2022. No. S-21-944.
1. Taxation: Judgments: Appeal and Error. Appellate courts review
decisions rendered by the Tax Equalization and Review Commission for
errors appearing on the record.
2. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable.
3. Taxation: Appeal and Error. Questions of law arising during appellate
review of the Tax Equalization and Review Commission’s decisions are
reviewed de novo on the record.
4. Statutes. Statutory interpretation presents a question of law.
5. Administrative Law: Statutes. Agency regulations properly adopted
and filed with the Secretary of State of Nebraska have the effect of
statutory law.
6. Taxation: Property: Valuation: Statutes: Time: Dismissal and
Nonsuit. When a protest of property valuation is not timely filed on or
before June 30 as required under Neb. Rev. Stat. § 77-1502(1) (Reissue
2018), the county board of equalization lacks statutory authority to
review and decide the merits of the protest, and it does not have statu-
tory authority to do anything other than dismiss the protest.
7. Courts: Words and Phrases. A court generally does not read the use of
the terms “must” and “shall” as permissive rather than mandatory.
8. Taxation: Property: Valuation: Time: Appeal and Error. When a
county board of equalization lacks authority to review and decide a
protest of property valuation on the merits because the protest was not
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312 Nebraska Reports
MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
Cite as 312 Neb. 341
timely filed, the Tax Equalization and Review Commission likewise
lacks authority to review the merits of the protest.
Appeal from the Tax Equalization and Review Commission.
Affirmed.
Frederick D. Stehlik and Zachary W. Lutz-Priefert, of Gross,
Welch, Marks & Clare, P.C., L.L.O., for appellant.
Timothy L. Moll, of Rembolt Ludtke, L.L.P., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
The Perkins County Board of Equalization (the Board) dis-
missed the 2021 property valuation protest of Mid America
Agri Products/Wheatland Industries LLC (Wheatland) because
it was not timely filed. The Tax Equalization and Review
Commission (TERC) affirmed the dismissal. Wheatland
appeals. Wheatland argues that the statutory deadline for
filing a protest may be waived by a board of equalization
and that the Board waived the deadline in this case because
it allegedly accepted the protest and heard argument on the
merits of the protest. We affirm TERC’s order which affirmed
the dismissal.
STATEMENT OF FACTS
Wheatland owns a parcel of real estate in Perkins County.
The Perkins County assessor changed the valuation of the
property for the 2018 tax year and again for the 2019 tax year,
and each of these years the assessor sent Wheatland a notice
of valuation change. Wheatland filed timely protests to the
valuations for both 2018 and 2019. The valuation for the 2019
tax year was $13,385,246.
For the 2020 tax year, the assessor did not change the valu-
ation of the property and therefore did not send Wheatland a
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
Cite as 312 Neb. 341
notice of valuation change. However, Wheatland filed a timely
protest to the 2020 valuation. The Board denied Wheatland’s
protests for the 2018, 2019, and 2020 tax years. Wheatland
appealed the denials to TERC, and those appeals were still
pending at the time of the dismissal of the 2021 protest at
issue in this appeal.
For the 2021 tax year, the assessor again maintained the
valuation of Wheatland’s property from 2019 and 2020. The
assessor therefore did not send a notice of valuation change.
On July 1, 2021, Wheatland’s attorney hand delivered a prop-
erty valuation protest form to the Perkins County clerk. The
clerk received the protest on that date, but on July 2, the clerk
sent a letter to Wheatland informing it that it had missed the
June 30 deadline to file a protest and that therefore, the protest
would not be heard by the Board. The Board maintains that
the 2021 protest was automatically dismissed by operation
of law.
Notwithstanding the clerk’s letter, Wheatland’s attorney
attended the July 19, 2021, meeting of the Board. Wheatland
asserts that despite claiming that its protest was not timely,
the Board discussed Wheatland’s protest of the 2021 valua-
tion at the July 19 meeting. To the contrary, the Board asserts
that it did not discuss the 2021 valuation, but, instead, that
it discussed a TERC hearing that had been held on July
12 concerning Wheatland’s appeals of the 2018, 2019, and
2020 valuations.
Wheatland appealed to TERC and claimed that the asses-
sor’s failure to give notice prevented Wheatland from timely
filing its protest. TERC thereafter entered an order to show
cause and notice of hearing in which it ordered that a “hear-
ing must be held to determine whether [TERC] has jurisdic-
tion over this matter.” TERC set a hearing date and stated
that the hearing would only address the jurisdictional issue
and that a separate hearing on the valuation of the property
would be scheduled at a later date if TERC determined it
had jurisdiction.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
Cite as 312 Neb. 341
After the hearing, TERC filed an “Order for Dismissal” on
October 27, 2021. TERC began its analysis by citing Neb.
Rev. Stat. § 77-5013(1) (Reissue 2018), which provides the
requirements for TERC to obtain exclusive jurisdiction over an
appeal. TERC further stated it could not “acquire jurisdiction
over an issue if the body from which the appeal is taken had no
jurisdiction of the subject matter.”
Turning to the timeliness of Wheatland’s protest, TERC
rejected Wheatland’s contention to the effect that it could not
timely file its protest because the assessor failed to provide
notice of the 2021 valuation. TERC stated that the assessor
was not required to send Wheatland a notice for the tax year
2021 because the assessed valuation of Wheatland’s property
was not changed from the prior year. See Neb. Rev. Stat.
§ 77-1315(2) (Reissue 2018).
TERC stated that a statutory remedy existed to challenge a
property’s assessment, and it cited Neb. Rev. Stat. § 77-1502(1)
(Reissue 2018), which provides that “[p]rotests regarding real
property shall be signed and filed . . . on or before June 30.”
TERC also noted 350 Neb. Admin. Code, ch. 10, § 003.03A
(2014), which provides in part that “[i]f the protest is not
timely filed, it will automatically be dismissed.”
In its order, TERC stated that Wheatland did not file its
protest on or before June 30, 2021, and that Wheatland did
not dispute that its filing on July 1 was late. TERC noted that
Wheatland nevertheless argued that the Board “waived any
issues concerning the timeliness of the protest by ‘accepting’
the protest.” Wheatland asserted that the Board accepted the
protest when the clerk received the protest that its attorney had
hand delivered on July 1 and told the attorney the date that
the Board would hold a hearing on protests. Wheatland also
asserted that the Board discussed Wheatland’s protest at the
July 19 hearing. TERC noted in its order that witnesses dis-
agreed as to whether Wheatland’s protest of the 2021 valuation
was discussed at the Board’s hearing and that two members
of the Board attested they had discussed Wheatland’s appeals
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MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
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of the 2018, 2019, and 2020 valuations but had not discussed
the 2021 valuation. TERC stated that a preponderance of the
evidence did not support a finding that the Board had con-
sidered Wheatland’s protest of the 2021 valuation. But TERC
determined that whether or not the Board had considered the
protest, TERC consistently applied the rule that subject matter
jurisdiction may not be created by waiver, estoppel, consent,
or conduct of the parties. TERC further stated that equitable
estoppel was not normally applied in administrative proceed-
ings, that TERC did not have equitable power, and that even if
it had equitable power, the statutes regarding protests provided
an adequate remedy at law.
In its order, TERC concluded that the Board correctly dis-
missed Wheatland’s protest because the protest was not timely
filed. TERC cited Village at North Platte v. Lincoln Cty. Bd. of
Equal., 292 Neb. 533, 873 N.W.2d 201 (2016), for the proposi-
tion that when a statute requires a county board of equalization
to dismiss a protest, the county board does not have authority
to do anything except dismiss the protest. TERC further stated
that “[w]hen a county board correctly dismisses a protest
because it lacked statutory authority to hear the protest on the
merits, [TERC] should decline to reach the merits of the appeal
and affirm the dismissal of the county board.” TERC therefore
affirmed the Board’s dismissal of the protest and dismissed
Wheatland’s appeal with prejudice.
Wheatland appeals TERC’s order.
ASSIGNMENT OF ERROR
Wheatland claims, restated, that TERC erred when it
affirmed the Board’s dismissal of Wheatland’s protest because
the 2021 protest had not been timely filed.
STANDARDS OF REVIEW
[1,2] Appellate courts review decisions rendered by TERC
for errors appearing on the record. Betty L. Green Living Trust
v. Morrill Cty. Bd. of Equal., 299 Neb. 933, 911 N.W.2d 551
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MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
Cite as 312 Neb. 341
(2018). When reviewing a judgment for errors appearing on
the record, an appellate court’s inquiry is whether the decision
conforms to the law, is supported by competent evidence, and
is neither arbitrary, capricious, nor unreasonable. Id.
[3,4] Questions of law arising during appellate review of
TERC’s decisions are reviewed de novo on the record. Id.
Statutory interpretation presents a question of law. County of
Webster v. Nebraska Tax Equal. & Rev. Comm., 296 Neb. 751,
896 N.W.2d 887 (2017).
ANALYSIS
Wheatland claims that TERC erred when it affirmed the
Board’s dismissal of Wheatland’s protest because the filing
of the protest was late. Wheatland argues that its filing of the
protest on July 1, 2021, did not deprive the Board of authority
to consider the protest because the June 30 deadline set forth
in § 77-1502(1) is merely “an administrative timeline which
an administrative agency has the ability to waive.” Brief for
appellant at 9. Wheatland further argues that the Board waived
the June 30 requirement, because it accepted the protest and
heard argument on the protest, and that therefore, TERC had
jurisdiction to review the valuation on its merits. We disagree
with Wheatland’s contention that the June 30 requirement may
be waived, and we conclude that because the Board did not
err when it dismissed the protest, TERC did not err when it
affirmed the dismissal.
In its order, TERC relied largely on Village at North Platte
v. Lincoln Cty. Bd. of Equal., 292 Neb. 533, 873 N.W.2d 201
(2016). In Village at North Platte, the taxpayer filed a protest
that did not meet a requirement of § 77-1502(2) because it
did not include “a statement of the reason or reasons why the
requested change [in valuation] should be made.” We noted
that § 77-1502(2) provided that if a protest failed to “contain
or have attached the statement of the reason or reasons for the
protest . . . the protest shall be dismissed by the county board
of equalization.” We determined in Village at North Platte
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that because the taxpayer failed to include a statement of
reason or reasons, the board in that case “did not have [statu-
tory] authority to do anything other than dismiss the protest.”
292 Neb. at 540, 873 N.W.2d at 206. We further reasoned in
Village at North Platte that because the board “lacked author-
ity to hear the taxpayer’s . . . protest on the merits of the
valuation, TERC likewise lacked authority to do so.” 292 Neb.
at 541, 873 N.W.2d at 207. We concluded that the board in
Village at North Platte “lacked statutory authority to take any
other action” than to dismiss the protest and that therefore,
TERC “correctly declined to reach the merits of the appeal
regarding the property’s value.” 292 Neb. at 542, 873 N.W.2d
at 208.
[5] In the present case, Wheatland failed to meet the require-
ment in § 77-1502(1) that a protest “regarding real property
shall be signed and filed . . . on or before June 30.” Unlike
§ 77-1502(2) with regard to the required statement of reason or
reasons at issue in Village at North Platte, § 77-1502(1) does
not specifically state that a protest that fails to meet the June
30 filing requirement must be dismissed by the county board of
equalization. However, as TERC noted in its order, the applica-
ble regulation, § 003.03A, provides in part that “[i]f the protest
is not timely filed, it will automatically be dismissed.” Agency
regulations properly adopted and filed with the Secretary of
State of Nebraska have the effect of statutory law. Ash Grove
Cement Co. v. Nebraska Dept. of Rev., 306 Neb. 947, 947
N.W.2d 731 (2020).
[6] We determine that our reasoning in Village at North
Platte regarding the statutory requirements in § 77-1502
logically applies to the statutory requirement that a protest
must be filed on or before June 30. Section 77-1502 pro-
vides the statutory authority for a county board of equaliza-
tion to review and decide protests, and the requirements of
the statute must be met in order for a board to exercise that
authority. Section 77-1502 requires that a protest must be
filed on or before June 30 in order for a board to exercise the
- 348 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
Cite as 312 Neb. 341
authority. Furthermore, the applicable regulation, § 003.03A,
specifically provides that a protest that is not timely filed will
“automatically be dismissed.” Therefore, when a protest of
property valuation is not timely filed on or before June 30,
the county board of equalization lacks statutory authority to
review and decide the merits of the protest, and it does not
have statutory authority to do anything other than dismiss
the protest.
Wheatland argues in this case that the Board could, and did,
waive the June 30 requirement when it allegedly accepted the
protest and heard argument on the protest. We note that TERC
stated that the preponderance of the evidence did not support
Wheatland’s assertion that the Board heard argument on the
protest; instead, two Board members attested that the Board
discussed Wheatland’s appeals to TERC of prior years’ valua-
tions but did not discuss the protest of the 2021 valuation. With
regard to Wheatland’s assertion that the Board accepted the
protest, we note that after receiving the protest from Wheatland
on July 1, the clerk sent a letter the next day stating that the
protest was late and would not be heard.
[7] TERC found that the Board did not “waive” the filing
deadline, and such filing is supported by the record. However,
whether or not the Board attempted to waive the June 30
requirement in this case, the Board did not have authority to
do so. Wheatland argues that “shall” as used in § 77-1502(1)
indicates merely a directory, rather than a mandatory, require-
ment and that as such, the requirement may be waived. We
disagree. We have stated that we generally do not read the use
of the terms “must” and “shall” as permissive rather than man-
datory. See, Williams v. Williams, 311 Neb. 772, 975 N.W.2d
523 (2022); Karo v. NAU Country Ins. Co., 297 Neb. 798, 901
N.W.2d 689 (2017). The requirement in § 77-1502(1) that the
protest “shall” be filed on or before June 30 is mandatory,
and timely filing is required in order to give the Board statu-
tory authority to consider a protest. The mandatory nature of
this requirement is bolstered by the regulation, § 003.03A,
- 349 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
Cite as 312 Neb. 341
requiring that if the protest is not timely filed, the protest is
automatically dismissed.
[8] Because the Board was required to dismiss the pro-
test, we determine that it was proper for TERC to affirm
the Board’s dismissal of Wheatland’s protest. Similar to our
reasoning in Village at North Platte v. Lincoln Cty. Bd. of
Equal., 292 Neb. 533, 873 N.W.2d 201 (2016), we conclude
that when a county board of equalization lacks authority to
review and decide a protest of property valuation on the mer-
its because the protest was not timely filed, TERC likewise
lacks authority to review the merits of the protest. Because a
county board of equalization lacks statutory authority to take
any other action than to dismiss a protest that is not timely
filed, TERC, as it did in this case, should decline to reach the
merits of the appeal of a proper dismissal and instead should
affirm the dismissal.
Although we read TERC’s order as affirming the Board’s
dismissal of the protest, there is language in TERC’s order
referring to “jurisdiction” and stating that the appeal must be
dismissed for lack of jurisdiction. We noted similar references
to jurisdiction in Village at North Platte; we recognized that
TERC’s jurisdiction over an appeal is derived from § 77-5013,
which we described as providing that
TERC obtains exclusive jurisdiction over an appeal when:
(1) TERC has the power or authority to hear the appeal;
(2) the appeal is timely filed; (3) the filing fee, if applica-
ble, is timely received and thereafter paid; and (4) a copy
of the decision, order, determination, or action appealed
from, . . . is timely filed.
292 Neb. at 540, 873 N.W.2d at 206-07. We further observed
in Village at North Platte that § 77-5013(1) provides that
“‘[o]nly the requirements of this subsection shall be deemed
jurisdictional’” and that TERC “has the power and duty to hear
and determine appeals of any decision of any county board of
equalization” so long as jurisdictional requirements are met.
292 Neb. at 540, 873 N.W.2d at 207. See, similarly, Karo v.
- 350 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
Cite as 312 Neb. 341
NAU Country Ins. Co., 297 Neb. at 810, 901 N.W.2d at 697,
698 (noting distinction between “jurisdictional” and “‘claim-
processing rules’”).
In Village at North Platte, we acknowledged the proposi-
tion that if the court from which an appeal was taken lacked
jurisdiction, then the appellate court acquires no jurisdiction,
and we determined that a “comparable rule” was applicable
with regard to appeals to TERC from decisions of boards of
equalization. 292 Neb. at 541, 873 N.W.2d at 207. We stated
that when a board of equalization lacks authority to hear a
protest on the merits, TERC likewise lacks authority to do
so. In the present case, although it made references to “juris-
diction,” TERC properly recognized that because the Board
lacked statutory authority to review Wheatland’s protest on
the merits, TERC also lacked authority to review the merits
of the protest. TERC therefore properly affirmed the Board’s
dismissal of the protest.
CONCLUSION
The Board properly dismissed Wheatland’s protest of the
2021 property valuation because the protest was filed after the
statutory June 30 deadline, and we therefore affirm TERC’s
order which affirmed the Board’s dismissal of Wheatland’s
2021 protest.
Affirmed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487138/ | [Cite as State v. Savage, 2022-Ohio-4107.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220131
TRIAL NO. B-1700608
Respondent-Appellee, :
vs. : O P I N I O N.
EDDIE SAVAGE, :
Petitioner-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 18, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant
Prosecuting Attorney, for Respondent-Appellee,
Eddie Savage, pro se.
OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} Petitioner-appellant Eddie Savage appeals the Hamilton County
Common Pleas Court’s judgment dismissing his motion for “Delayed Postconviction”
for lack of jurisdiction. We affirm the court’s judgment.
Procedural History
{¶2} In July 2018, following a jury trial, Savage was convicted of the
aggravated robbery, with gun specifications, of a Boost Mobile store. He was sentenced
to an aggregate prison term of 14 years. His convictions and sentences were affirmed
on direct appeal. See State v. Savage, 1st Dist. Hamilton No. C-180413, 2019-Ohio-
4859, appeal not allowed, 158 Ohio St.3d 1424, 2020-Ohio-647, 140 N.E.3d 743. In
that appeal, Savage had argued, in his third assignment of error, that he was denied a
fair trial due to prosecutorial misconduct. Savage claimed that the prosecutor had
misstated the evidence during closing argument when she said that Boost Mobile
packaging had been found in the truck that Savage had rented. We overruled this
assignment, concluding that the prosecutor had not misstated the evidence where
photographs of Boost Mobile packaging found in Savage’s truck had been admitted
into evidence during the trial. Id. at ¶ 29.
{¶3} In November 2020, Savage filed a “Motion for Delayed Postconviction”
in the common pleas court, and in February 2022, he amended this petition with a
document entitled “2nd Amendment to Delayed Postconviction.” In his petition,
Savage contends that he was denied a fair trial and the effective assistance of counsel
when his trial counsel, the prosecutor, and a police detective allegedly conspired to
replace photographs of the original paperwork found in Savage’s truck with
photographs of Boost Mobile packaging. To support his postconviction claims, he
points to the police detective’s trial testimony related to the admission of the
photographs and notes that the detective did not use the phrase “Boost Mobile
2
OHIO FIRST DISTRICT COURT OF APPEALS
packaging.” He also points to the photographs that had been admitted at trial to
demonstrate that they do not contain “paperwork.”
{¶4} The court dismissed Savage’s postconviction petition as untimely.
Savage now appeals, challenging, in a single assignment of error, the common pleas
court’s dismissal of his amended petition for postconviction relief under the
postconviction statutes. See R.C. 2953.21 et seq.
No Jurisdiction To Entertain the Petition
{¶5} Savage concedes that his November 2020 petition and its amendment
were filed outside the time prescribed by R.C. 2953.21(A)(2). But a common pleas
court may entertain a late postconviction petition if the petition satisfies the
jurisdictional requirements of R.C. 2953.23. The petitioner must show either that the
petitioner was unavoidably prevented from discovering the facts upon which the
postconviction claims depend, or that the postconviction claims are predicated upon
a new and retrospectively applicable right recognized by the United States Supreme
Court since the time for filing the petition had expired. R.C. 2953.23(A)(1)(a). And the
petitioner must show “by clear and convincing evidence that, but for constitutional
error at trial, no reasonable factfinder would have found the petitioner guilty of the
offense of which the petitioner was convicted * * *.” R.C. 2953.23(A)(1)(b). If the
petitioner does not satisfy those jurisdictional requirements, the petition is subject to
dismissal without a hearing. See R.C. 2953.21(D) and (F) and 2953.23(A).
{¶6} Here, Savage has not satisfied those jurisdictional requirements. Savage
has not argued that his postconviction claims are based on a new right recognized by
the United States Supreme Court, and he has not demonstrated that he was
unavoidably prevented from discovering the photographs and the trial testimony upon
which he now relies to support his postconviction claims. Although he contends that
3
OHIO FIRST DISTRICT COURT OF APPEALS
he was just recently able to review the photographs admitted at trial, Savage had access
to these photographs before and at his trial as well as during his direct appeal.
{¶7} Because Savage has not demonstrated that the common pleas court had
jurisdiction to consider his postconviction petition under R.C. 2953.23, the court
properly dismissed his petition and its amendment. Accordingly, we overrule Savage’s
single assignment of error and affirm the common pleas court’s judgment.
Judgment affirmed.
MYERS, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
4 | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487143/ | IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Paul Dick, :
Petitioner :
:
v. : No. 1408 C.D. 2021
:
Royal Flush Inc. (Workers’ :
Compensation Appeal Board), :
Respondent : Submitted: August 26, 2022
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE CEISLER FILED: November 18, 2022
Paul Dick (Claimant) petitions this Court for review of the November 19,
2021 order of the Workers’ Compensation Appeal Board (Board), which affirmed
the decision of a workers’ compensation judge (WCJ) granting Royal Flush, Inc.’s
(Employer) petition to modify Claimant’s temporary total disability (TTD) benefits
based on the results of an impairment rating evaluation (IRE) conducted pursuant to
Section 306(a.3) of the Workers’ Compensation Act (Act).1 Claimant argues that
the newly enacted IRE provisions in Section 306(a.3) of the Act do not apply to
1
Act of June 2, 1915, P.L. 736, as amended, added by Act of October 24, 2018, P.L. 714,
No. 111 (Act 111), 77 P.S. § 511.3. Section 306(a.3)(1) of the Act requires that an employee who
has received total disability compensation for 104 weeks submit to an IRE pursuant to the
American Medical Association’s “Guides to the Evaluation of Permanent Impairment,” Sixth
Edition (second printing April 2009) (AMA Guides), for the purpose of determining his degree of
whole body impairment (WBI) due to the compensable injury. 77 P.S. § 511.3(1). If the IRE
results in a WBI that is less than 35%, the employee shall receive partial disability benefits under
Section 306(b) of the Act. 77 P.S. § 511.3(2). Section 306(b)(1) of the Act limits a claimant’s
receipt of partial disability benefits to 500 weeks. 77 P.S. § 512(1).
injuries sustained prior to its effective date, and that the IRE itself was invalid
because he had not yet received 104 weeks of TTD benefits following Act 111’s
passage. After review, we affirm.
I. Background
The factual and procedural history of this matter is not in dispute. Claimant
sustained injuries to his left femur, tibia, fibula, and kneecap as a result of a June 4,
2015 motor vehicle collision that occurred in the course of his employment.
Certified Record (C.R.), Item No. 6, WCJ Decision, Finding of Fact No. 2.
Employer recognized the injuries via a Notice of Temporary Compensation Payable
(NTCP), which it issued on June 24, 2015. Id.
On November 26, 2019, Employer submitted a modification petition based on
the results of a September 30, 2019 IRE. C.R., Item No. 2. The examination, which
was performed in accordance with the Sixth Edition of the AMA Guides, assigned
Claimant a WBI rating of 26%. C.R., Item No. 15, Deposition of Thomas Freenock,
M.D., Notes of Testimony at 11. In a May 19, 2021 decision, a WCJ granted the
modification petition and changed Claimant’s benefit status from total to partial,
effective September 30, 2019. C.R., Item No. 6, Order. The WCJ declined to
address the issue of Act 111’s constitutionality, but noted that it was preserved for
appeal. Id.
Claimant appealed. C.R., Item No. 7. The Board amended the decision to
address a small error in its text, but otherwise affirmed the WCJ.2 C.R., Item No. 9,
2
The WCJ’s decision noted that Employer had “met its burden of proof to establish
entitlement to a modification of benefits from total to partial disability as of January 23, 2020
based on the IRE performed by Dr. Thomas Freenock.” C.R., Item No. 6, Conclusion of Law No.
2. The Board deemed the reference to that date a “typographical error,” and clarified that
September 30, 2019, was the correct effective date for the modification of benefits. C.R., Item
No. 9, Board Opinion at 5.
2
Board Opinion at 5-6. Regarding Claimant’s constitutional arguments, the Board
noted that Act 111’s constitutionality has been upheld by this Court in Pierson v.
Workers’ Compensation Appeal Board (Consol Pennsylvania Coal Company LLC),
252 A.3d 1169 (Pa. Cmwlth. 2021), Rose Corporation v. Workers’ Compensation
Appeal Board (Espada), 238 A.3d 551 (Pa. Cmwlth. 2020), and Pennsylvania AFL-
CIO v. Commonwealth, 219 A.3d 306 (Pa. Cmwlth. 2019), aff’d, (Pa., No. 88 MAP
2019, filed August 18, 2020). Id. at 3-4. This appeal followed.3
II. Issues
Claimant argues that the decision granting Employer’s modification petition
was in error because Act 111 is unconstitutional on its face and cannot be applied
retroactively. Claimant further argues that the IRE itself was invalid, because he had
not yet received 104 weeks of TTD benefits following the passage of Act 111.
III. Discussion
In Protz v. Workers’ Compensation Appeal Board (Derry Area School
District), 161 A.3d 827, 830 (Pa. 2017), our Supreme Court struck down former
Section 306(a.2)4 of the Act as an unconstitutional delegation of legislative authority,
as it simply provided that an IRE would be conducted pursuant to “the most recent
edition” of the AMA Guides. The General Assembly subsequently enacted Act 111,
which, in relevant part, repealed the unconstitutional provision and replaced it with
Section 306(a.3), 77 P.S. § 511.3. Rather than referring vaguely to a “most recent
3
Our standard of review is limited to determining whether the WCJ’s findings of fact were
supported by substantial evidence, whether an error of law was committed, or whether
constitutional rights were violated. Lehigh Specialty Melting, Inc. v. Workers’ Comp. Appeal Bd.
(Bosco), 260 A.3d 1053, 1058 n.3 (Pa. Cmwlth. 2021).
4
Added by the Act of June 24, 1996, P.L. 350, formerly 77 P.S. § 511.2, repealed by Act
111.
3
edition,” Section 306(a.3) specifies that an IRE shall be conducted in accordance
with the Sixth Edition (second printing) of the AMA Guides. 77 P.S. §511.3(2).
Claimant argues that Section 306(a.3) is unconstitutional on its face because
Act 111 contains no retroactivity provision. In his view, it is therefore only
applicable to claims originating on or after Act 111’s effective date of October 24,
2018. Since Claimant was injured more than three years before Act 111’s passage,
he maintains that his IRE is invalid.
As the Board noted, this Court has already considered and rejected Claimant’s
argument in Pierson, 252 A.3d at 1180. In Pierson, the claimant sustained a
workplace injury on August 13, 2014. Id. at 1171. On December 21, 2018, his
employer filed a petition to modify the claimant’s TTD benefits based on an IRE
that had been performed two days prior. Id. at 1172. The claimant argued that Act
111 could not “be constitutionally applied in a retroactive manner,” but only to
“claims that . . . originated on or after the date of the passage of the present IRE
mechanism, October 24, 2018.” Id. at 1174. We disagreed, explaining that “the
104-week and credit provisions of Act 111 were explicitly given retroactive effect
by the clear language used by the General Assembly.”5 Id. at 1180.
Claimant fails to distinguish the facts in this case from those in Pierson.
Instead, he merely repeats almost verbatim the assertions made by the claimant in
that case. In the absence of any basis for distinguishing the instant matter from
Pierson, we reject Claimant’s argument as lacking in merit.
5
Section 3(2) of Act 111 states that, for the purposes of determining the total number of
weeks of partial disability compensation payable under Section 306(a.3)(7) of the Act, an insurer
shall be given credit for weeks of partial disability compensation paid prior to the Act’s effective
date. Pierson, 252 A.3d at 1174 (citing 77 P.S. § 511.3, Historical and Statutory Notes).
4
We turn now to Claimant’s argument that the September 30, 2019 IRE was
invalid because it was performed prior to his receipt of 104 weeks of TTD benefits
following Act 111’s effective date of October 24, 2018. This argument, too, has
already been considered and rejected by this Court. In Rose Corporation, 238 A.3d
at 561, we explained that Act 111 clearly permits employers to seek credit for weeks
of TTD or partial compensation benefits received prior to Act 111’s enactment.
Because the claimant in that case had already received 104 weeks of TTD benefits,
the employer could seek a new IRE without waiting until 104 weeks of post-Act 111
benefits had been paid. Id. at 563. Claimant, once again, has failed to distinguish
his case from our holding in Rose Corporation.
For the foregoing reasons, we affirm the Board.
____________________________
ELLEN CEISLER, Judge
5
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Paul Dick, :
Petitioner :
:
v. : No. 1408 C.D. 2021
:
Royal Flush Inc. (Workers’ :
Compensation Appeal Board), :
Respondent :
ORDER
AND NOW, this 18th day of November, 2022, the order of the Workers’
Compensation Appeal Board in the above matter, dated November 19, 2021, is
hereby AFFIRMED.
____________________________
ELLEN CEISLER, Judge | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487148/ | This court will not entertain a case reserved by the superior court on a motion for a nonsuit, for advice as to whether the nonsuit should be granted.Assumpsit, tried in the superior court for Hartford County. The defendants moved for a nonsuit. The record recited the plaintiffs’ evidence, and concluded as follows: — “ If upon said evidence, or so much. thereof as may be legally admissible, the plaintiffs have failed to make out a prima facie case, this court will grant said motion for a nonsuit; and all questions respecting the admissibility of said testimony and the question whether said evidence is sufficient to make out a prima facie case for the plaintiffs, and what judgment should be rendered thereon, are reserved for the advice of the Supreme Court of Errors.” The parties were desirous to proceed with the hearing in this court upon the case as presented by the record, but the court were unanimously of opinion that the question of granting a nonsuit must in all cases be decided in the first instance by the court below, and that no judgment having been rendered in this case, and this court having no power to advise one, the questions of evidence could not be considered, as it did not appear that a decision of these would necessarily affect the decision of the cause. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487149/ | A judge of tbe Superior Court has no power to allow a motion for a new trial after a resignation of his office has taken effect, in a case tried before him while in office.Assumpsit, brought to the Superior Court in Fairfield County and tried to the jury before Minor, J. The jury having rendered a verdict for the defendants the plaintiff moved for a new trial. A preliminary objection was taken by the counsel for the defendants, that the case was not legally before the court. It appeared that Judge Minor had in the early part of the year 1873 sent to the Governor of the state a resignation of his office as judge, to take effect on Saturday the 15th day of November following. The case was tried at the August term of the court in 1873, but the time for filing the motion for a new trial had been extended by the judge. Some question was made with regard to the facts on this point, but they are not important to the principal question. The papers necessary for the preparation and allowance of the motion were not submitted to the judge until so late an hour on the 15th of November that ho was unable to examine them and allow the motion before 12 o’clock at night, and he therefore laid the matter over until Monday the 17th, when he completed and allowed the motion, leaving it .to the parties to make the question as to the legality of his action, the judge certifying the facts to this court. The point was discussed by Booth, with whom was Averill, for the defendants, and by Taylor, with whom was Sanford, for the plaintiff.The judges were unanimously of opinion that Judge Minor had no power to allow the motion after the day on which his resignation took effect. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487150/ | An appeal can not be taken from a judgment of a justice of the peace rendered upon a default.Assumpsit brought before a justice of the peace, and appealed by the defendant to the Superior Court for Litchfield County, and reserved upon a finding of facts for the advice of this court.“The plaintiff appeared; and the defendant being three times called made default of appearance. Whereupon it is *240considered by this court that the plaintiff recover of the defendant the sum of $89.56 debt, together with his costs taxed at $12.82, The defendant moves an appeal to the Superior Court to be liolden at Litchfield on, &c., and offers sufficient bond for prosecution, with surety; which appeal is allowed.”The court held (all the judges concurring) that an appeal could not be taken after a default, and advised the Superior Court that the case be stricken from the docket. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487151/ | A reservation of a case for advice, which does not bring up any question as to the jurisdiction of the court or the sufficiency of the declaration or of the pleadings founded upon it, or affecting the merits of the case, will not be entertained by this court.Replevin, reserved by the District Court of Litchfield County for advice, upon a demurrer to a plea in abatement on the ground of insufficient service upon the defendant.The judges declined to consider the case, on the' ground that the reservation presented for their advice no question affecting the merits of the case, or relating to the jurisdiction of the court, or the sufficiency of the declaration or the pleadings founded upon it. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487146/ | IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jody Kris :
:
v. : No. 450 C.D. 2021
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing, :
Appellant : Submitted: September 16, 2022
BEFORE: HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE MARY HANNAH LEAVITT, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
JUDGE CEISLER FILED: November 18, 2022
The Department of Transportation, Bureau of Driver Licensing (DOT),
appeals from the April 1, 2021 Order of the Court of Common Pleas of Bedford
County (Trial Court), which sustained the statutory appeal of Jody Kris (Licensee)
from the one-year suspension of her operating privilege imposed by DOT pursuant
to Section 3804(e)(2)(i) of the Vehicle Code, 75 Pa. C.S. § 3804(e)(2)(i).1 For the
reasons that follow, we reverse the Trial Court’s Order and direct DOT to reinstate
the one-year suspension of Licensee’s operating privilege.
Background
On July 6, 2011, Licensee was admitted into an accelerated rehabilitative
disposition (ARD) program for a violation of Section 3802(a)(2) of the Vehicle
1
Section 3804(e)(2)(i) of the Vehicle Code provides: “Suspension under paragraph (1)
shall be in accordance with the following: (i) Except as provided for in subparagraph (iii), 12
months for an ungraded misdemeanor or misdemeanor of the second degree under this chapter.”.
75 Pa. C.S. § 3804(e)(2)(i).
Code, 75 Pa. C.S. § 3802(a)(2) (relating to driving under influence of alcohol or
controlled substance (DUI) – general impairment),2 which she successfully
completed. Nine years later, on July 28, 2020, Licensee was again convicted of DUI
as an ungraded misdemeanor. On August 19, 2020, DOT imposed a one-year
suspension of Licensee’s operating privilege, effective September 23, 2020,
pursuant to Section 3804(e)(2)(i) of the Vehicle Code.
Licensee appealed to the Trial Court, which held a de novo hearing on January
14, 2021. Before the Trial Court, Licensee argued that, in light of the Pennsylvania
Superior Court’s holding in Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super.
2020),3 her 2011 ARD could not be considered a prior DUI offense under Section
3806(a)(1) of the Vehicle Code, 75 Pa. C.S. § 3806(a)(1).4 DOT, on the other hand,
2
Section 3802(a)(2) of the Vehicle Code provides:
An individual may not drive, operate or be in actual physical control of the
movement of a vehicle after imbibing a sufficient amount of alcohol such that the
alcohol concentration in the individual’s blood or breath is at least 0.08% but less
than 0.10% within two hours after the individual has driven, operated or been in
actual physical control of the movement of the vehicle.
75 Pa. C.S. § 3802(a)(2).
3
Recently, an en banc panel of the Superior Court expressly overruled Chichkin in
Commonwealth v. Moroz, __ A.3d __ (Pa. Super., No. 282 MDA 2021, filed October 4, 2022) (en
banc).
4
Section 3806(a)(1) of the Vehicle Code states:
[T]he term “prior offense” as used in this chapter shall mean any conviction for
which judgment of sentence has been imposed, adjudication of delinquency,
juvenile consent decree, acceptance of [ARD] or other form of preliminary
disposition before the sentencing on the present violation for any of the following:
(Footnote continued on next page…)
2
argued that Chichkin did not impact its authority to impose a civil operating privilege
suspension for Licensee’s second DUI conviction as an ungraded misdemeanor.
In Chichkin, the Superior Court concluded that acceptance of ARD cannot
count as a “prior offense” under Section 3806(a)(1) of the Vehicle Code with respect
to the criminal sentencing provisions of the Vehicle Code.5 Specifically, the
Chichkin Court held that Section 3806(a)(1) is unconstitutional as applied when a
previous ARD is used to enhance the criminal sentence of a defendant who is
convicted of another DUI violation.
On April 1, 2021, the Trial Court entered an Order sustaining Licensee’s
statutory appeal. In its subsequent Pa.R.A.P. 1925(a) Opinion, the Trial Court
explained the reason for its ruling as follows:
While we understand [DOT’s] arguments regarding the differences
between the civil nature of a license suspension [and] the criminal
penalties discussed in Chichkin, we ultimately find them unpersuasive.
Under the clear, unambiguous language of 75 Pa.C.S.[] § 3804,
[Licensee’s] operating privileges cannot be suspended if she has “no
prior offense.” See 75 Pa.C.S.[] § 3802(e)(2)(iii). And, in Chichkin,
the Superior Court has held that 75 Pa.C.S.[] § 3806(a) as it applies to
[Licensee’s] exact circumstances, is unconstitutional. Therefore,
inasmuch as [Licensee] did not – in accord with Chichkin – have a
“prior offense” at the time of her 2020 conviction under 75 Pa.C.S.[] §
3802(a)(1), we rescinded the suspension imposed by [DOT].
(1) an offense under [S]ection 3802 [of the Vehicle Code] (relating to
[DUI])[] . . . .
75 Pa. C.S. § 3806(a)(1) (emphasis added).
5
See Section 3804(a)-(d) of the Vehicle Code, 75 Pa. C.S. § 3804(a)-(d) (setting forth the
criminal penalties to be imposed for DUI violations).
3
Trial Ct. 1925(a) Op., 7/9/21, at 3 (footnotes omitted). DOT now appeals to this
Court.6
Analysis
On appeal, DOT asserts that the Trial Court erred in applying Chichkin’s
holding to this case. DOT contends that “Chichkin has no impact upon an operating
privilege suspension imposed in accordance with [Section] 3804(e)(2)(i), because a
prior ARD-DUI is not being used to enhance a criminal punishment.” DOT Br. at
10.7 In response, Licensee asserts that Chichkin’s holding that acceptance into an
ARD program is not a “prior offense” under Section 3806(a)(1) of the Vehicle Code
“has to apply to the suspension of operating privileges because the underlying act or
fact for the basis of the suspension is a crime or criminal act, operating a motor
vehicle while intoxicated.” Licensee Br. at 3 (unpaginated). We agree with DOT.
In Ferguson v. Department of Transportation, Bureau of Driver Licensing,
267 A.3d 628 (Pa. Cmwlth. 2021) (en banc), appeal granted, 280 A.3d 859 (Pa., No.
28 MAL 2022, filed June 22, 2022), this Court recently held that Chichkin does not
6
Our review in a license suspension appeal is limited to determining whether the Trial
Court committed an error of law or abused its discretion or whether the Trial Court’s factual
findings are supported by substantial evidence. Reinhart v. Dep’t of Transp., Bureau of Driver
Licensing, 954 A.2d 761, 765 n.3 (Pa. Cmwlth. 2008).
7
In its Pa.R.A.P. 1925(b) Statement, DOT also asserted that the Trial Court erred in
allowing Licensee to appeal nunc pro tunc because her untimely appeal was not due to non-
negligent circumstances involving fraud or an administrative breakdown. Reproduced Record at
62a-63a. However, DOT has abandoned that issue in its appellate brief, so we need not address it.
In any event, the Trial Court determined that Licensee “placed the factual basis for the nunc pro
tunc relief on the record which, if believed, established that [she] did not receive timely notice of
the suspension and acted with due diligence to file the appeal” and “which was uncontested by
[DOT].” Trial Ct. 1925(a) Op., 7/9/21, at 2.
4
apply to civil license suspension appeals.8 In Ferguson, the licensee was charged
with DUI in violation of Section 3802(a)(1) (an ungraded misdemeanor) in 2012 and
was accepted into an ARD program, which he successfully completed. Id. at 630.
In 2020, the licensee pled guilty to a second DUI charge in violation of Section
3802(a)(1) (also an ungraded misdemeanor). Id. Thereafter, DOT suspended the
licensee’s operating privilege for one year under Section 3804(e)(2)(i) of the Vehicle
Code. Id.
On appeal to this Court, the licensee argued that, pursuant to the Superior
Court’s decision in Chichkin, his acceptance of ARD in 2012 could not be
considered a prior DUI offense under Section 3806(a)(1), where he successfully
completed ARD, which involved no proof or admission of guilt, and the DUI charge
was dismissed. Id. at 631. Thus, the licensee argued that DOT had no authority to
impose a license suspension because he met the exception in Section 3804(e)(2)(iii)
of the Vehicle Code, 75 Pa. C.S. § 3804(e)(2)(iii), which states that “[t]here shall be
no license suspension for an ungraded misdemeanor under [S]ection 3802(a) where
the person is subject to the penalties provided in subsection (a) and the person has
no prior offense.” Id. The licensee also argued that allowing DOT to treat his
acceptance of ARD as a prior DUI offense would violate procedural and substantive
due process. Id.
This Court disagreed, explaining that while an ARD program is criminal in
nature, a license suspension resulting from participation in ARD is civil in nature;
thus, it is a collateral consequence of the criminal proceeding. Id. at 632. The
Ferguson Court held:
8
Ferguson was decided on December 22, 2021, after the parties filed their appellate briefs
with this Court.
5
Because the Chichkin Court ruled that the portion of Section 3806(a) of
the Vehicle Code that defines a prior acceptance of ARD in a DUI case
as a “prior offense” is unconstitutional for purposes of subjecting a
defendant to a mandatory minimum criminal sentence under Section
3804 of the Vehicle Code, Chichkin specifically applies to Section
3804(a)-(d) of the Vehicle Code, i.e., the criminal sentencing
provisions. Section 3804(e) of the Vehicle Code[, 75 Pa.C.S. §
3804(e),] expressly refers to “[s]uspension of operating privileges upon
conviction,” i.e., the collateral civil consequence thereof. Accordingly,
because license suspensions are civil proceedings, the Chichkin ruling
does not invalidate Section 3806(a) of the Vehicle Code for civil license
suspension purposes.
Id. (internal citations omitted) (emphasis added).
Applying Ferguson to the facts of this case, we conclude that Chichkin is
inapplicable to a civil license suspension appeal. Therefore, we conclude that
Licensee’s acceptance of ARD in 2011 constitutes a prior DUI offense under Section
3806(a)(1) of the Vehicle Code and, as such, DOT properly imposed a one-year
suspension of her operating privilege under Section 3804(e)(2)(i) of the Vehicle
Code.
Conclusion
Based on this Court’s decision in Ferguson, which is binding precedent, we
conclude that Chichkin is inapplicable to a civil license suspension appeal and,
therefore, Licensee’s 2011 ARD constitutes a prior DUI offense under Section
3806(a)(1) of the Vehicle Code. Accordingly, we reverse the Trial Court’s Order
and direct DOT to reinstate the one-year suspension of Licensee’s operating
privilege.
____________________________
ELLEN CEISLER, Judge
Judge Wallace did not participate in the decision of this case.
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Jody Kris :
:
v. : No. 450 C.D. 2021
:
Commonwealth of Pennsylvania, :
Department of Transportation, :
Bureau of Driver Licensing, :
Appellant :
ORDER
AND NOW, this 18th day of November, 2022, the April 1, 2021 Order of the
Court of Common Pleas of Bedford County is hereby REVERSED, and the
Department of Transportation, Bureau of Driver Licensing, is hereby DIRECTED
to reinstate the one-year suspension of Jody Kris’s operating privilege.
____________________________
ELLEN CEISLER, Judge | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487197/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/18/2022 09:05 AM CST
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John Doe, appellant, v.
State of Nebraska et al., appellees.
___ N.W.2d ___
Filed October 21, 2022. No. S-21-472.
1. Tort Claims Act: Appeal and Error. Whether a complaint alleges a
cause of action under the State Tort Claims Act, or alleges a claim which
is precluded by an exemption under the State Tort Claims Act, presents
a question of law.
2. Jurisdiction. Subject matter jurisdiction is a question of law. When a
jurisdictional question does not involve a factual dispute, the issue is a
matter of law.
3. Judgments: Appeal and Error. An appellate court reviews questions of
law independently of the lower court’s conclusion.
4. Jurisdiction: Immunity: Appeal and Error. A state’s sovereign immu-
nity from suit is a matter of subject matter jurisdiction that an appellate
court cannot ignore.
5. Jurisdiction. Whether a court has subject matter jurisdiction is a thresh-
old issue that should be resolved prior to an examination of the merits.
6. Negligence: Liability: Public Officers and Employees. A state is not
liable to a person injured by the negligence of its employees, unless
there is a statute or constitutional provision permitting recovery.
7. Constitutional Law: Legislature: Immunity: Waiver. Nebraska’s
Constitution provides that “[t]he state may sue and be sued, and the
Legislature shall provide by law in what manner and in what courts
suits shall be brought.” But this constitutional provision is not self-
executing, and it requires legislative action to waive the State’s sover-
eign immunity.
8. Jurisdiction: Legislature: Immunity: Waiver. Absent legislative action
waiving sovereign immunity, a trial court lacks subject matter jurisdic-
tion over an action against the State.
9. Statutes: Immunity: Waiver. A waiver of sovereign immunity is found
only where stated by the most express language of a statute or by such
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overwhelming implication from the text as will allow no other reason-
able construction.
10. ____: ____: ____. Statutes purporting to waive the protection of sover-
eign immunity are to be strictly construed in favor of the sovereign and
against waiver.
11. Tort Claims Act: Legislature: Immunity: Waiver. Through the State
Tort Claims Act, the Legislature has waived the State’s sovereign immu-
nity with respect to some, but not all, types of tort claims.
12. Tort Claims Act: Immunity: Waiver. The definition of “tort claim” in
Neb. Rev. Stat. § 81-8,210(4) (Reissue 2014) fundamentally limits the
type of tort claims that are subject to the State Tort Claims Act’s limited
waiver of immunity.
13. Tort Claims Act: Legislature: Immunity: Waiver. Under Neb. Rev.
Stat. § 81-8,210(4) (Reissue 2014), the Legislature has waived the
State’s sovereign immunity for those tort claims that (1) seek money
damages only; (2) are on account of property damage, personal injury,
or death; (3) are caused by the negligent or wrongful act or omission of
a state employee acting within the scope of his or her office or employ-
ment; and (4) occur under circumstances in which a private person
would be liable to the claimant.
14. Tort Claims Act: Immunity: Waiver: Liability. Under the plain lan-
guage of Neb. Rev. Stat. §§ 81-8,210(4) and 81-8,215 (Reissue 2014),
the State Tort Claims Act’s limited waiver of sovereign immunity
applies only to tort claims for which a private person, under like circum-
stances, would be liable in tort to the plaintiff.
15. Tort Claims Act: Jurisdiction: Motions to Dismiss. Plaintiffs bringing
an action under the State Tort Claims Act must plausibly allege a “tort
claim” as that term is defined under the act, both to survive a motion
to dismiss for failure to state a claim and to establish subject matter
jurisdiction.
16. Tort Claims Act: Negligence: Proof. A negligence action brought
under the State Tort Claims Act has the same elements as a negligence
action brought against a private individual—a plaintiff must show a
legal duty owed by the defendant to the plaintiff, a breach of such duty,
causation, and damages.
17. Tort Claims Act: Jurisdiction: Negligence: Liability: Proof. To estab-
lish subject matter jurisdiction under the State Tort Claims Act, a plain-
tiff must plausibly allege a “tort claim” as defined under the act. That
requires, inter alia, plausibly alleging that the State, if a private person,
would be liable to the plaintiff for the negligent or wrongful act or omis-
sion under like circumstances.
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18. Statutes: Legislature: Intent: Torts: Liability. A court may determine
that a statute gives rise to a tort duty to act in the manner required by
the statute where (1) the statute is enacted to protect a class of persons
which includes the plaintiff, (2) the statute is intended to prevent the
particular injury that has been suffered, and (3) the statute is intended
by the Legislature to create a private liability as distinguished from one
of a public character.
19. Statutes: Legislature: Torts: Liability: Courts. Where the Legislature
has not by its express terms or by implication provided for civil tort
liability for failure to comply with a statute, under principles of judicial
restraint, it is prudent that courts not do so.
20. Statutes: Legislature: Intent: Torts: Courts. When considering
whether a statute gives rise to a tort duty, courts should consider the
express remedy, if any, imposed for violating the statute, and whether
such a remedy is inconsistent with a purported legislative intention to
create a tort duty.
21. Statutes: Torts: Liability. Neb. Rev. Stat. § 29-3523 (Cum. Supp.
2020) does not give rise to a legal duty that would subject a private
person to civil tort liability for failing to act in the manner prescribed by
statute.
22. Negligence. Nebraska does not recognize a common-law duty not to
disclose sealed criminal history information.
23. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
Appeal from the District Court for Lancaster County: Kevin
R. McManaman, Judge. Affirmed.
Zachary W. Lutz-Priefert and John A. McWilliams, of Gross
& Welch, P.C., L.L.O., for appellant.
Douglas J. Peterson, Attorney General, and James A.
Campbell, Solicitor General, for appellees.
Kevin Ruser and Ryan P. Sullivan, of University of Nebraska
Civil Clinical Law Program, and Deena Keilany and Alicia
Christensen, Senior Certified Law Students, for amicus curiae
Nebraska College of Law Civil Clinic.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
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Stacy, J.
Relying exclusively on the State Tort Claims Act (STCA), 1
John Doe filed suit against the State of Nebraska, the Nebraska
State Patrol (NSP), the Nebraska Department of Correctional
Services (DCS), and DCS director Scott Frakes, alleging they
negligently disclosed and reviewed his sealed criminal history
record information in violation of Neb. Rev. Stat. § 29-3523
(Cum. Supp. 2020). The district court dismissed the action on
a number of grounds, including that Doe’s claim was barred
by the doctrine of sovereign immunity. Doe appealed, and we
granted the appellees’ petition to bypass the Nebraska Court
of Appeals.
We affirm the dismissal of Doe’s tort action on sovereign
immunity grounds, but our reasoning differs somewhat from
that of the district court. We conclude that Doe has not alleged
a tort claim as that term is defined in the STCA, and the State
has therefore not waived its sovereign immunity with respect
to Doe’s claim.
I. BACKGROUND
Because this case was dismissed at the pleading stage, the
facts recited below are taken from the allegations of Doe’s
complaint and the attachments thereto. Doe was convicted of
a felony in 2000, and a few years later, he was convicted of a
misdemeanor. Sometime thereafter, Doe applied for pardons. In
2016, the Nebraska Board of Pardons granted his application
and issued pardons for both convictions.
After receiving the pardons, Doe filed a motion asking the
sentencing court to seal his criminal history record information
pursuant to § 29-3523(5). The court granted Doe’s motion and
sealed the criminal history record information relating to both
of his pardoned convictions. Because Doe’s negligence claim
is premised on alleged violations of § 29-3523, we provide
1
Neb. Rev. Stat. §§ 81-8,209 to 81-8,235 (Reissue 2014 & Cum. Supp.
2020).
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a brief overview of that statute now and address the relevant
statutory text in more detail later in our analysis.
Section 29-3523 authorizes a court to order the seal-
ing of criminal history record information under certain
circumstances, and it is part of the Security, Privacy, and
Dissemination of Criminal History Information Act (Criminal
History Act). 2 As relevant here, that act imposes certain obli-
gations on “[c]riminal justice agenc[ies]” 3 once “[c]riminal
history record information” 4 has been ordered sealed pursu-
ant to § 29-3523. Ordinarily, criminal history records are con-
sidered public records. 5 But in 2019, the Legislature amended
§ 29-3523 to provide that once a court has ordered criminal
history records to be sealed, they “are not part of the public
record and shall not be disseminated to persons other than
criminal justice agencies,” 6 except in certain limited circum-
stances. Moreover, § 29-3523 instructs that when responding
to a public inquiry about criminal history records which have
been sealed, a criminal justice agency “shall respond . . . in
the same manner as if there were no criminal history record
information and criminal history record information shall not
be disseminated to any person other than a criminal justice
agency.” 7 The statute also provides that in “any application
for employment . . . a person cannot be questioned with
respect to any offense for which the record is sealed” 8 and
2
See Neb. Rev. Stat. §29-3501 (Reissue 2016) (providing that Neb. Rev.
Stat. §§ 29-209, 29-210, 29-3501 to 29-3528, and 81-1423 (Reissue 2016
& Cum. Supp. 2020) “shall be known and may be cited as the Security,
Privacy, and Dissemination of Criminal History Information Act”).
3
See § 29-3509.
4
See § 29-3506.
5
See § 29-3520.
6
§ 29-3523(7).
7
§ 29-3523(1).
8
§ 29-3523(8).
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that if such an inquiry is made, the applicant may “respond
as if the offense never occurred.” 9
1. Doe Applies for Job With DCS
In September 2019, Doe applied for a job as a caseworker
at DCS. A question on the application form asked whether
Doe had a criminal history, and Doe responded, “[N]o.” DCS
interviewed Doe for the position, and thereafter, it requested
a criminal history background check as part of the applica-
tion process. According to the allegations of the complaint,
NSP wrongfully provided DCS with criminal history record
information that included Doe’s sealed records. Doe was sub-
sequently advised by DCS that he was not being hired for the
caseworker position due to his criminal history.
2. Doe Files Suit
In July 2020, Doe filed this negligence action in the district
court for Lancaster County against the State of Nebraska,
NSP, DCS, Frakes, and “Unknown Employees of the State
of Nebraska.” The district court permitted Doe to file the
complaint using a pseudonym, and he proceeds likewise on
appeal.
The complaint alleged a single cause of action against all
named defendants, described as “Negligent Disclosure and
Review of Sealed Records in Violation of Neb. Rev. Stat.
§ 29-3523.” Doe alleged that when DCS requested his criminal
history records, it was not acting in its capacity as a criminal
justice agency, but instead was making a public inquiry into
Doe’s criminal history. Doe alleged that in response to this
public inquiry, NSP “negligently disclosed” his sealed crimi-
nal history records to DCS in violation of § 29-3523. He also
alleged that DCS’ “consideration” of his sealed records was
negligent and a violation of § 29-3523. The complaint alleged
that this negligence “harmed” Doe and resulted in “lost income,
9
Id.
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and benefits, including retirement benefits which he would
have earned had he been employed by [DCS].” The complaint
prayed for monetary damages in an amount to be determined
at trial, an injunction prohibiting NSP from disclosing Doe’s
criminal history records “except where explicitly allowed by
statute,” and “expungement” of Doe’s criminal history records
“to prevent future harms and injustices.”
Doe did not serve the unknown defendants, and we do not
address them further. The remaining defendants were served,
and they responded as follows.
DCS and Frakes moved to dismiss Doe’s complaint on two
grounds: (1) The complaint failed to state a claim upon which
relief could be granted, and (2) the claim was barred by sover-
eign immunity. NSP did not join in the motion to dismiss and
instead filed an answer. NSP’s answer expressly denied that
it had disclosed Doe’s criminal history record information to
DCS, and it alleged, as affirmative defenses, the same grounds
on which the other defendants moved for dismissal.
At the hearing on the motion to dismiss, the parties pre-
sented only argument. DCS and Frakes argued that Doe’s com-
plaint failed to state a claim because it contained no factual
allegations showing they owed Doe a legal duty actionable
in tort. Alternatively, they argued that even if a legal duty
was owed, the discretionary function exemption to the STCA
applied and barred Doe’s tort claim. In response, Doe argued
that § 29-3523 created an actionable tort duty, and he argued
that the discretionary function exemption did not apply to bar
his claim because the Criminal History Act prescribed a spe-
cific course of conduct that DCS and Frakes were required to
follow regarding his sealed records.
(a) Claims Against DCS and Frakes Dismissed
In December 2020, the district court entered an order dis-
missing the claims against DCS and Frakes. The court’s order
recited various grounds for dismissal, but we recount only
those pertaining to jurisdiction.
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In that regard, the district court determined that Doe’s
tort claim against DCS and Frakes was essentially one for
common-law failure to hire and was barred by the STCA’s dis-
cretionary function exemption. 10 After dismissing the claims
against DCS and Frakes, the court, sua sponte, 11 directed the
remaining parties to brief two additional issues bearing on
its subject matter jurisdiction: (1) whether Doe pled a “tort
claim” as defined under the STCA and (2) whether a viola-
tion of § 29-3523 is actionable in tort. The court held a hear-
ing to take up these jurisdictional questions once the briefing
was complete.
At the hearing on jurisdiction, the State and NSP argued
the court lacked subject matter jurisdiction under the STCA
because Doe had not alleged a “[t]ort claim” as defined in
§ 81-8,210(4). In relevant part, that statute provides:
Tort claim means any claim against the State of Nebraska
for money only on account of damage to or loss of prop-
erty or on account of personal injury or death caused
by the negligent or wrongful act or omission of any
employee of the state, while acting within the scope of
his or her office or employment, under circumstances in
which the state, if a private person, would be liable to the
claimant for such damage, loss, injury, or death . . . . 12
The State and NSP argued that Doe had not alleged a “tort
claim” as defined under the STCA because (1) his claim was
not for money only, (2) he had not alleged a personal injury,
and (3) the alleged violation of § 29-3523 was not a claim for
which a private person could be liable under similar circum-
stances. Additionally, the State and NSP argued that under
10
See § 81-8,219(1).
11
See Moser v. State, 307 Neb. 18, 22, 948 N.W.2d 194, 199 (2020) (holding
State’s waiver of sovereign immunity under STCA is jurisdictional matter
that “a court may consider sua sponte”).
12
§ 81-8,210(4).
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the test articulated in Claypool v. Hibberd, 13 § 29-3523 did
not create an actionable tort duty which could support a claim
for negligence.
Doe disagreed. He argued the complaint sufficiently alleged
a plausible “tort claim” under the STCA because it sought
money damages, on account of a personal injury, caused by
the negligent dissemination and consideration of his sealed
criminal history records in violation of § 29-3523. Doe also
argued that § 29-3523 created a tort duty which applies to gov-
ernmental employees and private persons alike. Alternatively,
he argued that if the court did not agree § 29-3523 created a
tort duty, then it should find that Nebraska recognizes a general
common-law duty prohibiting the dissemination and consider-
ation of sealed criminal history records.
(b) Sua Sponte Dismissal for
Lack of Jurisdiction
After considering arguments of the parties, the court entered
an order dismissing Doe’s complaint, in its entirety, for lack of
subject matter jurisdiction. The court recited several reasons
why it lacked jurisdiction.
First, the court concluded that Doe had not pled a “tort
claim” under the STCA, reasoning primarily that Doe’s com-
plaint failed to allege a “personal injury” within the mean-
ing of § 81-8,210(4). Additionally, the court concluded that
the Legislature did not create a tort duty when it enacted
§ 29-3523 of the Criminal History Act, so the alleged viola-
tion of that statute did not present a tort claim for which the
State had waived immunity under the STCA. The court also
rejected Doe’s assertion that Nebraska recognized a common-
law duty prohibiting the dissemination of truthful information
about a person’s criminal history. Lastly, the court concluded
that to the extent Doe’s complaint sought injunctive relief
13
Claypool v. Hibberd, 261 Neb. 818, 626 N.W.2d 539 (2001).
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and “expungement” of his criminal records, those remedies
fell outside the STCA’s waiver of sovereign immunity. 14 The
court thus determined it lacked subject matter jurisdiction over
Doe’s claim under the STCA, and it dismissed the complaint in
its entirety on that basis.
Doe filed a timely appeal, and we granted the appellees’
petition to bypass. After oral argument before this court, we
requested supplemental briefing addressing whether, under
Nebraska tort law, a private person under like circumstances
would be liable to Doe. Supplemental briefs were received and
considered, and we discuss the parties’ jurisdictional arguments
later in our analysis.
II. ASSIGNMENTS OF ERROR
Doe assigns five errors which we consolidate and restate
into two: (1) The district court erred when it determined Doe
had not alleged a “tort claim” within the meaning of the STCA
and thus dismissed the complaint for lack of subject matter
jurisdiction, and (2) the district court erred when it determined
the discretionary function exemption applied to bar Doe’s
claim against DCS and Frakes.
In support of his first assignment of error, Doe presents sev-
eral arguments. First, he asserts that § 29-3523 of the Criminal
History Act created a tort duty to conform to the requirements
of the act and that the district court erred in concluding other-
wise. Alternatively, he argues Nebraska recognizes a common-
law duty to not disseminate or consider sealed criminal history
information. Next, he argues the complaint alleged a plausible
claim for personal injury, and the district court erred in con-
cluding otherwise. And finally, he argues the district court
14
See Zawaideh v. Nebraska Dept. of Health & Human Servs., 285 Neb. 48,
58, 825 N.W.2d 204, 213 (2013) (holding definition of tort claim under
STCA is for “‘money only’” and thus “exclude[s] nonmonetary claims,
such as actions for injunctive relief”).
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erred in concluding that the remedies of injunctive relief and
expungement are barred by sovereign immunity.
III. STANDARD OF REVIEW
[1] Whether a complaint alleges a cause of action under the
STCA, or alleges a claim which is precluded by an exemption
under the SCTA, presents a question of law. 15
[2] Subject matter jurisdiction is a question of law. 16 When
a jurisdictional question does not involve a factual dispute, the
issue is a matter of law. 17
[3] An appellate court reviews questions of law indepen-
dently of the lower court’s conclusion. 18
IV. ANALYSIS
1. Sovereign Immunity and
Subject Matter Jurisdiction
[4,5] A state’s sovereign immunity from suit is a matter
of subject matter jurisdiction that an appellate court cannot
ignore. 19 Whether a court has subject matter jurisdiction is a
threshold issue that should be resolved prior to an examination
of the merits. 20 We therefore begin our analysis by reviewing
familiar principles of sovereign immunity which bear on the
court’s subject matter jurisdiction in this case.
[6-8] Nebraska has long recognized the “‘rule that a state
is not liable to a person injured by the negligence of its
employees, unless there is a statute or constitutional provision
15
See, Williams v. State, 310 Neb. 588, 967 N.W.2d 677 (2021); Brown v.
State, 305 Neb. 111, 939 N.W.2d 354 (2020). Accord Edwards v. Douglas
County, 308 Neb. 259, 953 N.W.2d 744 (2021) (whether allegations of
complaint set forth claims which are precluded by exemptions under
Political Subdivisions Tort Claims Act presents question of law).
16
See id.
17
See id.
18
See id.
19
See Edwards, supra note 15.
20
Lambert v. Lincoln Public Schools, 306 Neb. 192, 945 N.W.2d 84 (2020).
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permitting recovery.’” 21 Nebraska’s Constitution provides that
“[t]he state may sue and be sued, and the Legislature shall
provide by law in what manner and in what courts suits
shall be brought.” 22 But this constitutional provision is not
self-executing, and it requires legislative action to waive the
State’s sovereign immunity. 23 Absent legislative action waiv-
ing sovereign immunity, a trial court lacks subject matter
jurisdiction over an action against the State. 24
[9,10] A waiver of sovereign immunity is found only where
stated by the most express language of a statute or by such
overwhelming implication from the text as will allow no other
reasonable construction. 25 Nebraska courts follow the rule that
statutes purporting to waive the protection of sovereign immu-
nity are to be strictly construed in favor of the sovereign and
against waiver. 26
Doe’s complaint relies exclusively on the STCA for jurisdic-
tion in this case. He alleged no other statutory basis for juris-
diction over his tort claim, and he argued no other statutory
basis for jurisdiction before the district court. We thus limit our
jurisdictional analysis to the STCA.
(a) STCA’s Limited Waiver
of Sovereign Immunity
[11] Under the plain language of the STCA, no tort claim
“shall be maintained against the state, any state agency, or any
employee of the state on any tort claim except to the extent,
and only to the extent, provided by the [STCA].” 27 We have
21
See Jill B. & Travis B. v. State, 297 Neb. 57, 66, 899 N.W.2d 241, 250
(2017).
22
Neb. Const. art. V, § 22.
23
See Jill B. & Travis B., supra note 21.
24
Burke v. Board of Trustees, 302 Neb. 494, 924 N.W.2d 304 (2019).
25
Edwards, supra note 15.
26
Id.
27
§ 81-8,209.
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recognized that through the STCA, the Legislature has waived
the State’s sovereign immunity with respect to some, but not
all, types of tort claims. 28
When considering whether a particular tort claim falls
within the STCA’s limited waiver of sovereign immunity, our
reported opinions often focus on the applicability of the statu-
tory exemptions set out in § 81-8,219. 29 This is because when
one of those exemptions applies, the tort claim is not one for
which the State has consented to be sued. 30 But, as we discuss
next, the STCA also contains another, more fundamental, limi-
tation on the waiver of sovereign immunity for tort claims—the
statutory definition of “tort claim.”
(i) Definition of “Tort Claim”
For purposes of the STCA, the Legislature has defined “tort
claim” in § 81-8,210(4). We quoted the relevant portions of
that definition earlier in this opinion, and we repeat it here for
convenience:
Tort claim means any claim against the State of Nebraska
for money only on account of damage to or loss of prop-
erty or on account of personal injury or death caused
by the negligent or wrongful act or omission of any
employee of the state, while acting within the scope of
his or her office or employment, under circumstances in
which the state, if a private person, would be liable to the
claimant for such damage, loss, injury, or death . . . . 31
[12,13] The STCA’s definition of “tort claim” fundamentally
limits the type of tort claims that are subject to the STCA’s
limited waiver of sovereign immunity. Under this statutory
28
See, Williams, supra note 15; Moser, supra note 11; Brown, supra note 15.
29
See, e.g., Wizinsky v. State, 308 Neb. 778, 957 N.W.2d 466 (2021) (discre
tionary function exemption); Moser, supra note 11 (analyzing applicability
of intentional tort exemption); Brown, supra note 15 (recreational activity
exemption); Zawaideh, supra note 14 (misrepresentation exemption).
30
See Edwards, supra note 15.
31
§ 81-8,210(4) (emphasis supplied).
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definition, the Legislature has waived the State’s sovereign
immunity for those tort claims that (1) seek money damages
only; (2) are on account of property damage, personal injury,
or death; (3) are caused by the negligent or wrongful act or
omission of a state employee acting within the scope of his or
her office or employment; and (4) occur under circumstances
in which a private person would be liable to the claimant.
On appeal, the appellees argue that the claim alleged in Doe’s
complaint failed to satisfy any of the definitional requirements
for a tort claim under § 81-8,210(4). But we do not address all
of the definitional requirements; instead, we focus our analy-
sis on the last requirement, which limits tort claims under the
STCA to those torts occurring under circumstances “in which
the state, if a private person, would be liable to the claimant.” 32
Similar language appears in § 81-8,215 of the STCA, which
sets out the general waiver of sovereign immunity and provides
that “[i]n all suits brought under the [STCA] the state shall be
liable in the same manner and to the same extent as a private
individual under like circumstances . . . .” Similar provisions
appear in the Political Subdivisions Tort Claims Act. 33 As
stated, our settled rules of statutory construction require that
we strictly construe these waivers of sovereign immunity in
favor of the sovereign.
The “private person” provision in § 81-8,210(4) and the
related “private individual” provision in § 81-8,215 have been
part of the STCA since its adoption in 1969. 34 This court long
ago recognized that through these statutory provisions, the
Legislature consented to tort “liability on the part of the State
under the same circumstances under which a private person
would be liable.” 35 Our opinions discussing the STCA routinely
32
§ 81-8,210(4).
33
See Neb. Rev. Stat. §§ 13-903(4) and 13-908 (Reissue 2012).
34
See §§ 81-8,210(4) and 81-8,215 (Cum. Supp. 1969).
35
Cortes v. State, 191 Neb. 795, 798, 218 N.W.2d 214, 216 (1974).
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recite the “private person” provisions, 36 but we have not previ-
ously addressed the jurisdictional import of such provisions on
the STCA’s waiver of immunity. This case affords an opportu-
nity to develop our case law on this jurisdictional issue.
In their supplemental briefing to this court, the parties agree
that under the plain language of §§ 81-8,210(4) and 81-8,215
(Reissue 2014), the Legislature’s waiver of the State’s sover-
eign immunity is limited to claims for which a private person
under like circumstances would be liable in tort to the claimant
under Nebraska law. Both parties point to a dearth of Nebraska
case law addressing this aspect of the STCA, and, as a result,
they devote considerable discussion to federal cases address-
ing similar “private person” provisions within the Federal Tort
Claims Act (FTCA). 37
The FTCA provides, in relevant part, that the “United States
shall be liable, respecting the provisions of this title relating to
tort claims, in the same manner and to the same extent as a pri-
vate individual under like circumstances . . . .” 38 Additionally,
§ 1346(b)(1) gives the federal district courts
36
See, e.g., Davis v. State, 297 Neb. 955, 970, 902 N.W.2d 165, 181 (2017)
(reciting both provisions and noting that “the state defendants could not
have committed the tortious acts set out in [plaintiff’s] complaint as
private individuals”). See, also, Moser, supra note 11, 307 Neb. at 23, 948
N.W.2d at 199 (“[a]s pertinent here, the STCA waives the State’s sovereign
immunity for tort claims against the State on account of personal injury
caused by the negligent or wrongful act or omission of any employee of
the State, while acting within the scope of his or her office or employment,
under circumstances in which the State, if a private person, would be liable
to the claimant for such injury”); Northland Ins. Co. v. State, 242 Neb.
10, 14, 492 N.W.2d 866, 869 (1992) (holding “an action for contribution
is covered under [the STCA], but only if a private person would be liable
to the claimant for the damage, loss, injury, or death”); Blitzkie v. State,
228 Neb. 409, 415, 422 N.W.2d 773, 777 (1988) (“[s]ubject to certain
exempted claims, the [STCA] provides for the State’s liability for its torts
the same as a private person may be liable for torts”).
37
See 28 U.S.C. §§ 1346(b) and 2671 to 2680 (2018).
38
§ 2674.
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exclusive jurisdiction of civil actions on claims against
the United States, for money damages, . . . for injury or
loss of property, or personal injury or death caused by the
negligent or wrongful act or omission of any employee
of the Government while acting within the scope of his
office or employment, under circumstances where the
United States, if a private person, would be liable to the
claimant in accordance with the law of the place where
the act or omission occurred.”
The U.S. Supreme Court has construed these federal statu-
tory provisions “to mean what they say, namely, that the
United States waives sovereign immunity ‘under circum-
stances’ where local law would make a ‘private person’ liable
in tort.” 39 The Supreme Court has referred to this as the
FTCA’s “‘private person’ standard,” 40 and other federal courts
have described it as the “private analogue” requirement of the
FTCA. 41 Regardless of nomenclature, federal courts have con-
sistently held that the private person requirement is jurisdic-
tional in nature and must be satisfied for the FTCA’s limited
waiver of sovereign immunity to apply. 42 As the U.S. Supreme
Court succinctly stated recently in Brownback v. King, 43 when
bringing a claim under the FTCA, “a plaintiff must plausi-
bly allege that ‘the United States, if a private person, would
be liable to the claimant’ under state law both to survive [a
39
United States v. Olson, 546 U.S. 43, 44, 126 S. Ct. 510, 163 L. Ed. 2d 306
(2005) (emphasis in original).
40
Id., 546 U.S. at 46.
41
See, e.g., Green Acres Enterprises, Inc. v. U.S., 418 F.3d 852, 855 (8th Cir.
2005). See, also, D.J.C.V. v. United States, No. 20 Civ. 5747, 2022 WL
1912254 (S.D.N.Y. June 3, 2022).
42
See, e.g., Smith v. U.S., 14 F.4th 1228 (11th Cir. 2021); Gutrejman v. U.S.,
527 F. Supp. 3d 1 (D.C. 2021); In re Marjory Stoneman Douglas High
School, 482 F. Supp. 3d 1273 (S.D. Fla. 2020); McGonagle v. U.S., 155 F.
Supp. 3d 130 (D. Mass. 2016).
43
Brownback v. King, ___ U.S. ___, 141 S. Ct. 740, 749, 209 L. Ed. 2d 33
(2021).
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motion to dismiss for failure to state a claim] and to establish
subject-matter jurisdiction.”
The Nebraska Legislature patterned the STCA after the
FTCA, 44 and the “private person” language under the STCA
largely mirrors the private person language under the FTCA.
Consequently, when discussing the jurisdictional impact of
the private person requirement under the STCA, both Doe
and the appellees argue in their supplemental briefing that the
jurisdictional reasoning of the federal courts, as it pertains to
the private person requirement under the FTCA, is instructive.
We generally agree, with the caveat that the federal courts do
not always adhere to the same rules of strict construction that
Nebraska courts follow when considering statutes that purport
to waive sovereign immunity. 45
[14,15] Considering the plain language of §§ 81-8,210(4)
and 81-8,215 under our settled rule of strict construction, we
now expressly recognize what has been the case since the
enactment of the STCA: The STCA’s limited waiver of sov-
ereign immunity applies only to tort claims for which a pri-
vate person, under like circumstances, would be liable in tort
to the plaintiff. This means that plaintiffs bringing an action
under the STCA must plausibly allege a “tort claim” as that
term is defined under the STCA, both to survive a motion to
dismiss for failure to state a claim and to establish subject mat-
ter jurisdiction.
[16,17] To clarify, it remains true as a general principle that
a negligence action brought under the STCA or the Political
Subdivisions Tort Claims Act 46 has the same elements as
a negligence action brought against a private individual—a
44
See Jill B. & Travis B., supra note 21.
45
See, e.g., Moser, supra note 11, 307 Neb. at 29, 948 N.W.2d at 202
(observing that U.S. Supreme Court “has not uniformly used the same
strict construction canon with respect to waivers of sovereign immunity”
that Nebraska follows).
46
Neb. Rev. Stat. § 13-901 et seq. (Reissue 2012 & Cum. Supp. 2020).
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plaintiff must show a legal duty owed by the defendant to
the plaintiff, a breach of such duty, causation, and damages. 47
However, to establish subject matter jurisdiction under the
STCA, a plaintiff must also plausibly allege a “tort claim” as
defined under the STCA. That requires, inter alia, plausibly
alleging that the State, if a private person, would be liable
to the plaintiff for the negligent or wrongful act or omission
under like circumstances.
(ii) Has Doe Alleged Tort Claim Under STCA?
The district court concluded that it lacked subject matter
jurisdiction over Doe’s action because he had not alleged a
“tort claim” as defined under the STCA. On appeal, the parties
present arguments going to each of the definitional require-
ments for a tort claim under § 81-8,210(4). However, because
we conclude the “private person” definitional requirement is
dispositive, we confine our analysis to that issue and do not
reach the parties’ other jurisdictional arguments. 48
(b) Private Person Analogue
We turn now to the dispositive jurisdictional issue in this
STCA appeal: whether Doe has alleged a tort claim for which
a private person, under like circumstances, would be liable.
In Doe’s complaint, all of the negligent or wrongful acts or
omissions relate to the defendants’ alleged failure to comply
with the provisions of § 29-3523. The jurisdictional question
under the STCA, then, is whether a private person under like
circumstances would be liable in tort for failing to comply with
§ 29-3523.
In his supplemental briefing, Doe argues that a private person
would be liable in tort for disseminating and considering his
47
See, e.g., Reiber v. County of Gage, 303 Neb. 325, 928 N.W.2d 916
(2019).
48
State v. Webb, 311 Neb. 694, 974 N.W.2d 317 (2022) (appellate court not
obligated to engage in analysis that is not necessary to adjudicate case and
controversy before it).
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sealed criminal history records under either of two theories.
His primary argument is that § 29-3523 creates a tort duty
that applies to private persons. Alternatively, he argues that
Nebraska law recognizes a common-law duty to not disclose
criminal history records. We address each argument below, but
first we recite the relevant text of § 29-3523.
Section 29-3523 provides:
(1) After . . . the granting of a motion [to seal criminal
history record information] under subsection (4), (5), or
(6) of this section, a criminal justice agency shall respond
to a public inquiry in the same manner as if there were
no criminal history record information and criminal his-
tory record information shall not be disseminated to any
person other than a criminal justice agency, except as pro-
vided in subsection (2) of this section or when the subject
of the record:
(a) Is currently the subject of prosecution or correc-
tional control as the result of a separate arrest;
(b) Is currently an announced candidate for or holder
of public office;
(c) Has made a notarized request for the release of such
record to a specific person; or
(d) Is kept unidentified, and the record is used for pur-
poses of surveying or summarizing individual or collec-
tive law enforcement agency activity or practices, or the
dissemination is requested consisting only of release of
criminal history record information showing (i) dates of
arrests, (ii) reasons for arrests, and (iii) the nature of the
dispositions including, but not limited to, reasons for not
prosecuting the case or cases.
(2) That part of criminal history record information
described in subsection (7) of this section may be dissem-
inated to individuals and agencies for the express purpose
of research, evaluative, or statistical activities pursuant to
an agreement with a criminal justice agency that specifi-
cally authorizes access to the information, limits the use
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of the information to research, evaluative, or statistical
activities, and ensures the confidentiality and security of
the information.
....
(5) Any person who has received a pardon may file a
motion with the sentencing court for an order to seal the
criminal history record information and any cases related
to such charges or conviction. Upon a finding that the
person received a pardon, the court shall grant the motion
and issue an order as provided in subsection (7) of this
section.
....
(7) Upon acquittal or entry of an order dismissing a
case described in subdivision (3)(c) of this section, or
after granting a motion under subsection (4), (5), or (6) of
this section, the court shall:
(a) Order that all records, including any information
or other data concerning any proceedings relating to the
case, including the arrest, taking into custody, petition,
complaint, indictment, information, trial, hearing, adjudi-
cation, correctional supervision, dismissal, or other dis-
position or sentence, are not part of the public record and
shall not be disseminated to persons other than criminal
justice agencies, except as provided in subsection (1) or
(2) of this section;
(b) Send notice of the order (i) to the Nebraska
Commission on Law Enforcement and Criminal Justice,
(ii) to the Nebraska State Patrol, and (iii) to law enforce-
ment agencies, county attorneys, and city attorneys refer-
enced in the court record;
(c) Order all parties notified under subdivision (7)(b)
of this section to seal all records pertaining to the case;
and
(d) If the case was transferred from one court to
another, send notice of the order to seal the record to the
transferring court.
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(8) In any application for employment, bonding,
license, education, or other right or privilege, any appear-
ance as a witness, or any other public inquiry, a person
cannot be questioned with respect to any offense for
which the record is sealed. If an inquiry is made in viola-
tion of this subsection, the person may respond as if the
offense never occurred.
(i) Does § 29-3523 Create Tort Duty?
As stated, Doe argues that § 29-3523 of the Criminal
History Act creates a tort duty to act in the manner required
by the statute, and he argues that such a duty is imposed on
governmental employees and private persons alike. The appel-
lees argue that § 29-3523 does not create a tort duty, and in any
event, the pertinent requirements of § 29-3523 are not directed
at private individuals.
[18] We have not yet had occasion to consider whether
§ 29-3523 gives rise to a tort duty. But in Claypool, we set out
the test for determining when a statute creates such a duty:
A court may determine that a statute gives rise to a tort
duty to act in the manner required by the statute where
[1] the statute is enacted to protect a class of persons
which includes the plaintiff, [2] the statute is intended to
prevent the particular injury that has been suffered, and
[3] the statute is intended by the Legislature to create
a private liability as distinguished from one of a public
character. 49
The appellees appear to concede that Doe, as someone
whose criminal history records have been sealed as a result of
pardons, is generally within the class of persons that § 29-3523
was enacted to protect. But they argue that under the third
Claypool factor, there is nothing to suggest the Legislature
intended § 29-3523 to create private tort liability. We agree.
[19,20] We have described the third Claypool factor as
“central to the analysis of whether the statute defines a duty in
49
Claypool, supra note 13, 261 Neb. at 825, 626 N.W.2d at 545.
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tort,” 50 and we have explained that “where the Legislature has
not by its express terms or by implication provided for civil
tort liability [for failure to comply with a statute], under prin-
ciples of judicial restraint, it is prudent that we not do so.” 51
Moreover, we have said that courts should consider the express
remedy, if any, imposed for violating the statute, and whether
such a remedy is “inconsistent with a purported legislative
intention to create a tort duty.” 52
The legislative purpose of the Criminal History Act is stated
in § 29-3502:
The purposes of [the Criminal History Act] are (1) to
control and coordinate criminal offender record keep-
ing within this state, (2) to establish more efficient and
uniform systems of criminal offender record keeping,
(3) to assure periodic audits of such record keeping
in order to determine compliance with sections 29-209,
29-210, 29-3501 to 29-3528, and 81-1423, (4) to estab-
lish a more effective administrative structure for the
protection of individual privacy in connection with such
record keeping, and (5) to preserve the principle of the
public’s right to know of the official actions of criminal
justice agencies.
It is apparent from the plain text of § 29-3502 that the pur-
poses of the Criminal History Act are primarily administrative
in nature; the act is aimed at ensuring uniformity, efficiency,
accuracy, and transparency in criminal history recordkeeping.
We see nothing in § 29-3502 which suggests the Legislature
intended the Criminal History Act to create a tort duty to act in
accordance with the statutory scheme.
Presumably recognizing that the legislative purpose recited
in § 29-3502 is of little help to his argument under the Claypool
50
Stonacek v. City of Lincoln, 279 Neb. 869, 880, 782 N.W.2d 900, 909
(2010).
51
Id.
52
Id. at 881, 782 N.W.2d at 910.
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factors, Doe asks us to focus more specifically on the provi-
sions of § 29-3523, which govern how sealed criminal history
records are to be handled. But the plain language of § 29-3523
does not expressly or impliedly create private tort liability
for failing to comply with the statutory provisions governing
sealed criminal history records. In fact, as we discuss next, the
Legislature has provided express statutory remedies for viola-
tions of the Criminal History Act which are inconsistent with a
purported legislative intent to create a private tort duty.
We identify two statutes providing express remedies for
violations of the Criminal History Act. Section 29-3527 estab-
lishes criminal liability for “[a]ny person” who commits certain
violations of the Criminal History Act, including the know-
ing dissemination of “nondisclosable criminal history record
information in violation of [the Criminal History Act].” 53
Additionally, § 29-3528 authorizes an aggrieved person to
compel governmental actors to comply with the requirements
of the Criminal History Act and provides:
Whenever any officer or employee of the state, its
agencies, or its political subdivisions, or whenever any
state agency or any political subdivision or its agencies
fails to comply with the requirements of [the Criminal
History Act] or of regulations lawfully adopted to imple-
ment [the Criminal History Act], any person aggrieved
may bring an action, including but not limited to an action
for mandamus, to compel compliance and such action
may be brought in the district court of any district in
which the records involved are located or in the district
court of Lancaster County. The commission may request
the Attorney General to bring such action.
53
See § 29-3527(1) through (3) (providing any person who permits
unauthorized direct access to criminal history information, who knowingly
fails to disseminate public criminal history information, or who knowingly
disseminates “nondisclosable criminal history record information” is guilty
of Class IV misdemeanor).
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Based on the express statutory remedies created by the
Legislature—one which imposes criminal penalties on any
person who violates the act, and another which authorizes
mandamus and similar actions against governmental actors
“to compel compliance” with the act—we cannot find that the
Legislature intended the Criminal History Act generally, or
§ 29-3523 specifically, to give rise to any tort duty, let alone a
duty that would apply to a private person. 54
[21] We thus reject Doe’s argument and hold that § 29-3523
does not give rise to a legal duty that would subject a private
person to civil tort liability for failing to act in the manner pre-
scribed by statute. But that does not end our analysis.
Although Doe’s complaint identifies § 29-3523 as the pri-
mary source of the alleged duty not to disclose or consider his
sealed criminal history records, he also argues that if the statute
does not give rise to a tort duty, then Nebraska recognizes a
common-law duty of reasonable care not to disclose crimi-
nal history records. The district court rejected this argument,
reasoning that Doe had provided “no authority for a common
law duty prohibiting the dissemination of truthful information
about a person’s criminal history” and concluding that “no
such duty exists.”
Doe has not assigned error to this aspect of the trial court’s
duty ruling. But in his supplemental briefing, he argues that
Nebraska common law provides a private analogue for the
negligence claims he alleged against the State. We consider this
argument next, and find it lacks merit.
(ii) Would Private Person Owe Common-Law
Duty Under Like Circumstances?
Doe argues that Nebraska law recognizes what he describes
as a common-law “duty to act with reasonable care when in
custody of sealed or sensitive information, the disclosure of
54
See Smith, supra note 42, 14 F.4th at 1232 (holding FTCA “does not cover
breaches of federal statutory or regulatory duties that do not apply to
private parties”).
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which would have a detrimental effect on the life and liveli-
hood of an individual.” 55 He directs us to no Nebraska case
recognizing such a common-law duty, and we find none.
Instead, Doe refers us to a case from 1994, Merrick v
Thomas, 56 which he argues recognized a general common-
law duty of reasonable care. In that case, the plaintiff sued
the sheriff under the Political Subdivisions Tort Claims Act,
alleging that the sheriff had a duty to score her admissions
test accurately and fairly and that he had breached that duty.
This court concluded the plaintiff’s complaint, liberally con-
strued, alleged sufficient facts to establish the sheriff “owed
her a duty to score her test with due care.” 57 In reaching this
conclusion, the Merrick court recited the general proposition
that “[a] common-law duty exists to use due care so as not to
negligently injure another person.” 58 Doe relies on this state-
ment in Merrick to argue that under Nebraska law, a private
person owes a general common-law duty of reasonable care
to others. But our more recent cases expressly disavow the
suggestion that Nebraska recognizes “a general duty of rea-
sonable care to all others at all times.” 59 Instead, since our
2010 decision in A.W. v. Lancaster Cty. Sch. Dist. 0001, 60
Nebraska has consistently followed the general duty frame-
work set out in § 7 of the Restatement (Third) of Torts. 61 The
duty principles recited in Merrick do not reflect current tort
law in Nebraska.
55
Brief for appellant at 22.
56
Merrick v. Thomas, 246 Neb. 658, 522 N.W.2d 402 (1994).
57
Id. at 662, 522 N.W.2d at 406.
58
Id. at 661, 522 N.W.2d at 406.
59
Bell v. Grow With Me Childcare & Preschool, 299 Neb. 136, 154, 907
N.W.2d 705, 718 (2018).
60
A.W. v. Lancaster Cty. Sch. Dist. 0001, 280 Neb. 205, 784 N.W.2d 907
(2010).
61
See Bell, supra note 59 (discussing 1 Restatement (Third) of Torts:
Liability for Physical and Emotional Harm § 7 (2010)).
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[22] We thus reject Doe’s suggestion that Nebraska’s
common-law recognizes a duty not to disclose sealed criminal
history information. Indeed, if such a common-law duty did
exist, it seems unlikely the Legislature would have amended
the Criminal History Act in 2019 to enact laws prohibiting the
dissemination of sealed criminal history record information
under certain circumstances.
(iii) No Private Analogue
For the above reasons, we conclude that Doe has failed
to establish that a private person would owe him a legal
duty under circumstances like those alleged in his complaint.
Without a legal duty, a private person could not be liable in
negligence under like circumstances. Stated differently, there is
no “private analogue” for his claim, and Doe has thus failed to
allege a tort claim under § 81-8,210(4) for which the State has
waived its sovereign immunity.
For the sake of completeness, however, we note that Doe’s
appellate briefing also argues that even if there is not a private
person analogue for his negligence claim under § 29-3523 or
Nebraska’s common law, there are other possible tort claims,
such as invasion of privacy or “Interference with Economic
Expectation,” 62 for which a private person may be liable. We
do not address these arguments, however, because Doe neither
pled such tort claims nor alleged conduct that would plausibly
support such tort claims. Instead, Doe’s complaint alleged a
negligence claim premised exclusively on conduct which he
says failed to comply with § 29-3523, and we have already
explained why no private analogue exists for that claim.
2. Doe’s Remaining Assignments
and Arguments
[23] Our conclusion that Doe has not alleged a tort claim
under the STCA for which the State has waived its sovereign
immunity makes it unnecessary to address any of his remain-
ing assignments of error. An appellate court is not obligated
62
Brief for appellant at 19.
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to engage in an analysis that is not necessary to adjudicate the
case and controversy before it. 63
Similarly, we do not address Doe’s argument, raised for the
first time in his reply brief, that even if the STCA’s limited
waiver of sovereign immunity does not apply to his claims,
the district court should have construed his tort action as one
to enforce compliance with the Criminal History Act under
§ 29-3528. Doe has not assigned this as error on appeal, 64
nor could he. His complaint relied exclusively on the STCA
for jurisdiction over his tort claim. The complaint neither ref-
erenced § 29-3528 nor alleged it as a possible jurisdictional
basis. The district court did not consider Doe’s unpled juris-
dictional theory, and we will not consider it for the first time
on appeal. 65
V. CONCLUSION
Because Doe has not shown that a private person would be
liable under Nebraska law for the allegedly tortious conduct
alleged in the complaint, the STCA’s limited waiver of sov-
ereign immunity does not apply. The district court therefore
correctly concluded that Doe has not alleged a “tort claim”
under the STCA for which the State has waived its sovereign
immunity. The district court’s dismissal of the complaint for
lack of subject matter jurisdiction was correct and is affirmed.
Affirmed.
63
Schmid v. Simmons, 311 Neb. 48, 970 N.W.2d 735 (2022).
64
See Adair Holdings v. Johnson, 304 Neb. 720, 936 N.W.2d 517 (2020)
(alleged error must be both assigned and argued to be addressed by
appellate court).
65
See Wisner v. Vandelay Investments, 300 Neb. 825, 841, 916 N.W.2d 698,
714 (2018) (“[a]n argument not presented to or decided by the trial court
is not appropriate for consideration on appeal”).
Cassel, J., concurring.
Our dissenting colleague relies upon a “broad interpretation”
endorsed by the U.S. Supreme Court in determining the reach
of the private person analogue in the Federal Tort Claims Act
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addressing liability of the national sovereign. But, as the major-
ity opinion makes clear, Nebraska adheres to strict construction
of waivers of sovereign immunity as to the state sovereign.
Thus, a “broad interpretation” is inconsistent with Nebraska
law. And because the district court’s subject matter jurisdiction
depended upon a waiver of sovereign immunity, this court was
not free to avoid the jurisdictional analysis. Judicial restraint
does not permit or justify judicial abdication.
Miller‑Lerman, J., concurring in part, and in part dissenting.
I respectfully concur in part, and in part dissent. I agree
with the majority that, given the remedies in the Security,
Privacy, and Dissemination of Criminal History Act (Act),
Neb. Rev. Stat. §§ 29‑209, 29‑210, 29‑3501 to 29‑3538, and
81‑1423 (Reissue 2016 & Cum. Supp. 2020), the responsi-
bilities of the Act do not create the duty element of the tort of
negligence and that therefore, Doe has failed to state a claim
for negligence under Neb. Rev. Stat. § 81-8,210(4) (Reissue
2014) of the State Tort Claims Act (STCA). But STCA permits
“tort claims” in addition to the tort claim of negligence. Other
actions which lie in tort can be brought, such as interference
with a business expectancy, which may be applicable here
based on the events giving rise to the complaint. Doe should
be permitted to amend. Further, albeit recast by the majority as
a failure of the State to waive immunity, the majority affirmed
the district court’s order, which concluded that there was a fail-
ure of subject matter jurisdiction. Not every failing is a juris-
dictional defect. I dissent from these rulings. I see the case as
a simple matter of failure to state a claim for negligence, and
the district court should permit Doe leave to attempt to replead
another tort.
The alleged facts are not repeated here. In summary, Doe
alleged that notwithstanding the fact that Doe’s criminal record
was sealed under § 29-3523(5), and after Doe’s job interview,
the Nebraska State Patrol improperly transmitted the records
identified as “Sealed Info” to the Department of Correctional
Services and its director, Scott Frakes, in connection with
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Doe’s application for employment. Frakes acknowledged that
the department should not have considered Doe’s sealed record
in connection with its rejection of Doe’s job application. Doe
alleged negligence under STCA.
According to the Act, among the objectives of sealing crim-
inal records is “the protection of individual privacy.” See
§ 29-3502. Following a pardon, and sealing of a person’s
records, the aim of the Act is to keep records private and
protect the pardoned individual from harm due to improper
dissemination and reliance on the sealed criminal record. The
statutory remedies for failure to abide by the Act are provided
by §§ 29-3527 and 29-3528 and include criminal liability and
mandamus. See State ex rel. Rhiley v. Nebraska State Patrol,
301 Neb. 241, 917 N.W.2d 903 (2018) (stating sovereign
immunity does not bar mandamus under § 29-3528 against
public officer). Because the Legislature has already provided
explicit remedies to enforce the Act, it would be inconsistent
for the court to create a separate private cause of action for
negligence, based on a breach of the responsibilities described
in the Act. This conclusion is similar to this court’s analysis
in Stonacek v. City of Lincoln, 279 Neb. 869, 782 N.W.2d 900
(2010). By this reasoning, I concur with the majority’s conclu-
sion that the Act does not create a duty in negligence or a cause
of action for negligence.
At this point, the analysis of whether Doe alleged a cause
of action for negligence under STCA is complete, and in my
view, the majority’s analysis of the private person analogue
and its segue into sovereign immunity are unnecessary and
not consistent with the widespread jurisprudence in this area.
In my view, firstly, the analysis improperly casts the issue as
jurisdictional, and secondly, the majority misreads the federal
jurisprudence as requiring a too exacting private equivalence
instead of an analogue.
I see a pleading failure, but unlike the majority, I do not
see a jurisdictional failure. There is no dispute that the district
court has subject matter jurisdiction to entertain an STCA
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action. Just because Doe did not allege a viable negligence
“[t]ort claim,” see § 81-8,210(4), for the particular tort of neg-
ligence does not bar him from attempting to plead another tort
under STCA. In my view, the defect in the complaint identified
by the trial court and this appellate court is not incurable as a
matter of law. As I have observed in the past, not every failing
is jurisdictional and we should be careful with our invocation
of the concept of jurisdiction. State v. Crawford, 291 Neb.
362, 865 N.W.2d 360 (2015), disapproved on other grounds,
State v. Burries, 310 Neb. 688, 969 N.W.2d 96 (2022). See
State v. Ryan, 287 Neb. 938, 845 N.W.2d 287 (2014), disap-
proved on other grounds, State v. Allen, 301 Neb. 560, 919
N.W.2d 500 (2018). See, also, Akutowicz v. U.S., 859 F.2d
1122 (2d Cir. 1988) (holding that where plaintiff has not satis-
fied private analogue requirement, plaintiff has failed to state
cause of action under Federal Tort Claims Act). But see Geico
General Ins. Co. v. U.S., 581 F. Supp. 3d 847 (E.D. Ky. 2022)
(stating because plaintiff failed to plead analogue facts suf-
ficient to state plausible claim under Federal Tort Claims Act,
court lacked jurisdiction). In my view, we should not recast an
inartful pleading as a jurisdictional defect merely to provide a
vehicle to dismiss. I dissent from this approach of the major-
ity opinion.
As I have urged, discussion of the doctrine of a private
person analogue is not necessary to the disposition of this
case, and I would exercise judicial restraint in this regard. Just
because the court can write about private person analogue does
not mean it should. To the extent dicta by the majority consid-
ers the private person analogue, I disagree with the majority’s
analysis that the analogue must be so precise.
As the majority notes, STCA is patterned after the Federal
Tort Claims Act (hereinafter FTCA), see 28 U.S.C. § 2680(h)
(2018), which to some extent, we follow. Compare Moser
v. State, 307 Neb. 18, 948 N.W.2d 194 (2020). FTCA’s pri-
vate person analogue is found at 28 U.S.C. § 1346 (2018).
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Nebraska’s private person analogue is found at § 81-8,210(4),
which provides:
Tort claim means any claim against the State of Nebraska
for money only on account of damage to or loss of prop-
erty or on account of personal injury or death caused
by the negligent or wrongful act or omission of any
employee of the state, while acting within the scope of
his or her office or employment, under circumstances in
which the state, if a private person, would be liable to the
claimant for such damage, loss, injury, or death . . . .
In evaluating whether a private person analogue exists
for the plaintiff’s federal tort claim, the U.S. Supreme
Court has stated that the State is not immune from suit
solely because it was engaged in a uniquely governmental
function. See, United States v. Olson, 546 U.S. 43, 126
S. Ct. 510, 163 L. Ed. 2d 306 (2005); Rayonier, Inc. v.
United States, 352 U.S. 315, 77 S. Ct. 374, 1 L. Ed. 2d
354 (1957); Indian Towing Co. v. United States, 350 U.S.
61, 76 S. Ct. 122, 100 L. Ed. 48 (1955). A court applying
the private person standard is not restricted to “narrow”
inquiries into the same circumstances, but must look fur-
ther afield. United States v. Olson, 546 U.S. at 46.
The U.S. Supreme Court declared that it “would be attribut-
ing bizarre motives to Congress . . . to hold that it was predi-
cating liability on such a completely fortuitous circumstance—
the presence or absence of identical private activity.” Indian
Towing Co. v. United States, 350 U.S. at 67. The U.S. Supreme
Court found no evidence in FTCA that Congress “intended to
draw distinctions so finespun and capricious as to be almost
inescapable of being held in the mind for adequate formula-
tion.” Indian Towing Co. v. United States, 350 U.S. at 68.
It has been observed that FTCA’s private person analogue
provision, § 1346, has been given
generous development by the Supreme Court. [FTCA]
is given a broad interpretation to effectuate the legisla-
tive aim of putting citizen and national sovereign in tort
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claims suits on a footing of equality as between private
parties within that state. Nice pieces of casuistry and
hypersensitive legalisms are avoided.
Roelofs v. United States, 501 F.2d 87, 92 (5th Cir. 1974). These
authorities illustrate why the majority has too narrowly applied
the private person analogue and why I dissent from such nar-
row understanding in this and future cases.
Turning to the complaint, Doe alleged a violation of the
responsibilities outlined in the Act by the State Patrol, Frakes,
and the Department of Correctional Services. According to the
allegations, Doe suffered the financial harm of being rejected
for a job as a result of state actors’ wrongful conducts, i.e.,
by both the improper dissemination of his sealed record and
the subsequent knowing reliance on the sealed record. I read
the events giving rise to the complaint as potentially involv-
ing tortious interference with Doe’s business expectancy or
another tort. See Denali Real Estate v. Denali Custom Builders,
302 Neb. 984, 926 N.W.2d 610 (2019) (setting forth ele-
ments of interference with business relationship or expec-
tancy). Employing the “broad interpretation” of the private
person analogue endorsed by the federal courts, see Roelofs v.
United States, 501 F.2d at 92, Doe has alleged a “[t]ort claim”
on account of the “wrongful act or omission of any employee
of the state, while acting within the scope of his or her office
or employment, under circumstances in which the state, if a
private person, would be liable to the claimant for such dam-
age, loss, injury or death . . . .” § 81-8,210(4). So, although I
think it unnecessary to engage in the private person analogue
exercise, were I to do so, I would find that Doe had alleged
facts which may indicate the existence of the private analogue
tort of interference with a business expectancy and thus should
be permitted to amend his pleading to attempt to make such
“tort claim” more explicit.
For the foregoing reasons, I concur in part, and in part
dissent. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487205/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/18/2022 09:05 AM CST
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KINGERY CONSTR. CO. V. 6135 O ST. CAR WASH
Cite as 312 Neb. 502
Kingery Construction Co., appellee,
v. 6135 O Street Car Wash, LLC,
a Nebraska limited liability
company, appellant.
___ N.W.2d ___
Filed September 23, 2022. No. S-21-797.
1. Arbitration and Award. Whether a stay of proceedings should be
granted and arbitration required is a question of law.
2. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court has an obligation to resolve the questions independently
of the conclusion reached by the trial court.
3. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it, and this is so even
where neither party has raised the issue.
4. Arbitration and Award: Final Orders: Appeal and Error. A court
order staying an action pending arbitration is a final, appealable
order because it affects a substantial right and is made in a special
proceeding.
5. Federal Acts: Arbitration and Award: Contracts. If arbitration arises
from a contract involving interstate commerce, it is governed by the
Federal Arbitration Act.
6. ____: ____: ____. The Federal Arbitration Act, 9 U.S.C. § 2 (2018),
preempts inconsistent state laws that apply solely to the enforceability
of arbitration provisions in contracts evidencing a transaction involving
interstate commerce.
7. ____: ____: ____. Under the Federal Arbitration Act, 9 U.S.C. § 3
(2018), the court in which a suit or proceeding is pending, upon being
satisfied that the issue involved in the suit or proceeding is refer-
able to arbitration under an agreement in writing for arbitration, shall
on application of one of the parties stay the trial of the action until
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arbitration has been had in accordance with the terms of the agree-
ment, provided the applicant for the stay is not in default in proceeding
with arbitration.
8. Arbitration and Award. Under the Federal Arbitration Act, 9 U.S.C.
§ 4 (2018), the court shall hear the parties and, upon being satisfied
that the making of the agreement for arbitration or the failure to comply
therewith is not in issue, shall make an order directing the parties to
proceed to arbitration in accordance with the terms of the agreement.
9. Judgments: Intent: Words and Phrases. While the doctrine of stare
decisis is entitled to great weight, it was never intended to indefinitely
perpetuate erroneous decisions.
10. Waiver: Words and Phrases. “Waiver” of a right is voluntary and
intentional relinquishment of a known right, privilege, or claim, and
may be demonstrated by or inferred from a person’s conduct.
Appeal from the District Court for Lancaster County:
Lori A. Maret, Judge. Reversed and remanded for further
proceedings.
Jordan W. Adam, of Fraser Stryker, P.C., L.L.O., for
appellant.
Brian S. Koerwitz, of Endacott, Peetz, Timmer & Koerwitz,
P.C., L.L.O., for appellee.
Miller-Lerman, Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ., and Hall, District Judge.
Funke, J.
INTRODUCTION
Kingery Construction Co. (Kingery) sued 6135 O Street Car
Wash, LLC (OSCW), for breach of contract and later moved
to stay the case for arbitration under 9 U.S.C. § 3 (2018) of
the Federal Arbitration Act (FAA). OSCW opposed Kingery’s
motion, arguing that Kingery waived its right to arbitration by
its litigation-related conduct. The district court found that there
was no waiver because OSCW was not prejudiced by Kingery’s
conduct. In so finding, the district court relied on our decision
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in Good Samaritan Coffee Co. v. LaRue Distributing, 1 which
adopted a three-part test of waiver based on litigation-related
conduct used by the U.S. Court of Appeals for the Eighth
Circuit. OSCW appealed. While the appeal was pending, the
U.S. Supreme Court ruled in Morgan v. Sundance, Inc., 2 that
the Eighth Circuit erred in conditioning a waiver of the right to
arbitration on a showing of prejudice. In light of Morgan, we
reverse, and remand for further proceedings.
BACKGROUND
OSCW and Kingery entered a $2,087,092 agreement for the
construction of a carwash in Lincoln, Nebraska, on March 30,
2020. They based their agreement on the 2017 version of the
American Institute of Architects’ “Standard Abbreviated Form
of Agreement Between Owner and Contractor.”
Section 5.1 of the agreement provides, “Arbitration pursu-
ant to Section 21.6 of this Agreement” shall be the method of
binding dispute resolution “[f]or any claim subject to, but not
resolved by, mediation pursuant to Section 21.5.”
Section 21.6, in turn, requires that arbitration be admin-
istered by the American Arbitration Association (AAA) in
accordance with the “Construction Industry Arbitration Rules”
in effect on the date of the agreement, unless the parties agree
otherwise. Section 19.2 further prescribes that the FAA “shall
govern Section 21.6” if the parties select arbitration as their
method of binding dispute resolution.
In addition, § 21.3, captioned “Time Limits on Claims,”
requires that the parties commence all claims and causes of
action against each other arising out of or related to the agree-
ment “in accordance with the requirements of the final dispute
resolution method selected in this Agreement . . . within the
1
Good Samaritan Coffee Co. v. LaRue Distributing, 275 Neb. 674, 748
N.W.2d 367 (2008).
2
Morgan v. Sundance, Inc., ___ U.S.___, 142 S. Ct. 1708, 212 L. Ed. 2d
753 (2022).
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period specified by applicable law, but in any case not more
than 10 years after the date of Substantial Completion of the
Work.” Section 21.3 also provides that the parties “waive all
claims and causes of action not commenced in accordance with
[the agreement’s] Section 21.3.”
Kingery sued OSCW for breach of contract on April 16,
2021, seeking recovery of $41,698.57 allegedly owed to
Kingery for work performed under the agreement, as well as
attorney fees and interest under the Nebraska Construction
Prompt Payment Act, codified at Neb. Rev. Stat. § 45-1201 et
seq. (Reissue 2021).
OSCW moved to dismiss Kingery’s complaint with preju-
dice on May 19, 2021, arguing that Kingery waived its breach
of contract claim under § 21.3 of the agreement by filing suit
on the claim, rather than commencing it in arbitration. Kingery
responded by filing a demand for arbitration with the AAA on
June 8 and a motion to stay the case for arbitration with the
district court on June 9.
The AAA contacted OSCW and Kingery on June 23, 2021,
to inform them that the matter was being administered under
the “Fast Track Procedures” of the Construction Industry
Arbitration Rules and that OSCW had until June 30 to make
any answer or counterclaim.
The district court held a hearing on June 29, 2021, to con-
sider Kingery’s motion to stay and motion to compel arbitra-
tion, as well as OSCW’s motion to dismiss. At the hearing,
OSCW reiterated its argument that Kingery waived its breach
of contract claim under § 21.3 of the parties’ agreement.
OSCW also argued that Kingery waived its right to stay the
case for arbitration under § 3 of the FAA by its litigation-
related conduct based on the three-part test of waiver set
forth in LaRue Distributing. 3 Specifically, OSCW asserted
that Kingery’s knowledge of its right to arbitration cannot be
disputed, given that “it’s now trying to initiate an arbitration
3
See Good Samaritan Coffee Co. v. LaRue Distributing, supra note 1.
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action”; that Kingery acted inconsistently with this right by
filing suit; and that Kingery’s litigation-related conduct preju-
diced OSCW because there have been “hearing[s] on . . . a
couple motions, travel time, time, and [the] expense of brief-
ing this and so forth.” OSCW further maintained that the
motion to arbitrate was “prejudicial in and of itself” because
Kingery filed it to avoid a court ruling “here, now at this
time” dismissing its claim with prejudice. OSCW also asked
the district court to stay the AAA arbitration case pending the
court’s decision.
Kingery disputed OSCW’s interpretation of § 21.3 of the
parties’ agreement, arguing that it provides for waiver only
of claims not brought within the prescribed time, rather than
claims not commenced in arbitration. As to waiver under the
FAA, Kingery did not dispute its awareness of its right to
arbitration, but asserted “[n]o Court has ever held” that filing
a lawsuit is inconsistent with the right to arbitration. Kingery
also disputed OSCW’s claim of prejudice because less than 2
months passed between when Kingery filed suit and when it
moved for a stay and because OSCW had not yet briefed the
issue. Kingery asserted this fell short of the litigation-related
conduct seen in LaRue Distributing.
On June 30, 2021, 1 day after the hearing and the day
OSCW’s answer and counterclaim were due to the AAA, the
district court granted OSCW’s motion to stay the arbitra-
tion case.
Subsequently, on September 1, 2001, the district court
reversed that order and granted Kingery’s motion to stay
the district court case under § 3 of the FAA. In so doing,
the court adopted OSCW’s arguments regarding Kingery’s
knowledge of its right to arbitration and action inconsistent
with that right. However, the court agreed with Kingery that
OSCW suffered no prejudice because of Kingery’s litigation-
related conduct. In so finding, it noted that it had not decided
any substantive issue, that “less than 2 months” had passed
between the lawsuit’s filing and the motion for a stay, and
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that “minimal litigation . . . ha[d] occurred to this point.” The
district court also noted that it did not reach the merits of
OSCW’s motion to dismiss with prejudice due to Kingery’s
alleged waiver of its claim under § 21.3 of the parties’
agreement.
OSCW appealed to the Nebraska Court of Appeals, and
we moved the matter to our docket. After oral argument in
this court, we requested supplemental briefing by the parties
addressing what constitutes default in proceeding with arbitra-
tion under § 3 of the FAA after the U.S. Supreme Court’s deci-
sion in Morgan. 4 The parties promptly submitted supplemental
briefs, which we have considered.
ASSIGNMENTS OF ERROR
OSCW assigns, restated, that the district court erred in (1)
requiring a showing of prejudice to prove a party waived its
right to arbitration under the FAA, given that § 2 of the FAA
calls for state law to be applied when determining whether
agreements to arbitrate are valid and enforceable and that prej-
udice is not otherwise required to show waiver under Nebraska
contract law, and, alternatively, (2) concluding OSCW was
not prejudiced under the three-part test of waiver set forth in
LaRue Distributing. 5
STANDARD OF REVIEW
[1,2] Whether a stay of proceedings should be granted and
arbitration required is a question of law. 6 When reviewing
questions of law, this court has an obligation to resolve the
questions independently of the conclusion reached by the trial
court. 7
4
See Morgan v. Sundance, Inc., supra note 2.
5
See Good Samaritan Coffee Co. v. LaRue Distributing, supra note 1.
6
Noah’s Ark Processors v. UniFirst Corp., 310 Neb. 896, 970 N.W.2d 72
(2022).
7
Id.
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ANALYSIS
The district court granted Kingery’s motion to stay its
breach of contract case against OSCW based on the three-
part test of waiver that we adopted in LaRue Distributing. 8
Under this test, a party seeking arbitration may be found to
have waived its right to arbitration if it (1) knew of an exist-
ing right to arbitration; (2) acted inconsistently with that right;
and (3) prejudiced the other party by these inconsistent acts. 9
As relevant here, OSCW was required to show it was preju-
diced by Kingery’s litigation-related conduct. OSCW argued
before the district court that it suffered such prejudice because
of “hearing[s] on . . . a couple motions, travel time, time,
and [the] expense of briefing this and so forth.” However, on
appeal, it also argued that prejudice should not be required
when determining whether a party has waived its right to stay
a case for arbitration.
It is generally true that when a party raises an issue for
the first time in an appellate court, the court will disregard
it because a lower court cannot commit error in resolving an
issue never presented and submitted to it for disposition. 10
However, we have previously found that this rationale does not
apply in cases, like this one, where the party would have had
to ask a lower court not to follow a controlling decision from
this court in order to preserve for appeal an issue that the party
claims we incorrectly decided. 11
As such, in light of the U.S. Supreme Court’s decision
in Morgan, 12 we agree and overrule our decision in LaRue
8
See Good Samaritan Coffee Co. v. LaRue Distributing, supra note 1.
9
Id.
10
Eletech, Inc. v. Conveyance Consulting Group, 308 Neb. 733, 956 N.W.2d
692 (2021).
11
See, e.g., State v. Vann, 306 Neb. 91, 944 N.W.2d 503 (2020); Bassinger v.
Nebraska Heart Hosp., 282 Neb. 835, 806 N.W.2d 395 (2011).
12
Morgan v. Sundance, Inc., supra note 2.
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Distributing 13 and cases relying on it to the extent they can be
read to hold that prejudice is necessary for a waiver based on
litigation-related conduct.
Jurisdiction
[3] Before reaching the legal issues presented for review,
it is the duty of an appellate court to determine whether it
has jurisdiction over the matter before it. 14 This is so even
where, as here, neither party has raised the issue. 15 Under Neb.
Rev. Stat. § 25-1911 (Reissue 2016), for an appellate court to
acquire jurisdiction of an appeal, there must be a final judg-
ment or final order entered by the tribunal from which the
appeal is taken. 16
[4] We have previously found that a court order staying an
action pending arbitration is a final, appealable order under
Neb. Rev. Stat. § 25-1902 (Cum. Supp. 2020) because it affects
a substantial right and is made in a special proceeding. 17 In
this context, a stay has the same effect as a dismissal, because
the “‘parties cannot litigate their dispute in state courts.’” 18
Accordingly, this court has jurisdiction to consider this appeal
of the district court’s order granting Kingery’s motion to stay
the pending case in district court.
Prejudice as Requirement for Waiver
[5,6] Congress enacted the FAA 19 nearly a century ago, in
1925, with the stated goal of placing arbitration agreements
13
Good Samaritan Coffee Co. v. LaRue Distributing, supra note 1.
14
Cullinane v. Beverly Enters. - Neb., 300 Neb. 210, 912 N.W.2d 774
(2018).
15
Id.
16
In re Estate of Anderson, 311 Neb. 758, 974 N.W.2d 847 (2022).
17
Citizens of Humanity v. Applied Underwriters, 299 Neb. 545, 909 N.W.2d
614 (2018).
18
Id. at 555, 909 N.W.2d at 624.
19
9 U.S.C. §§ 1 through 16 (2018).
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“‘upon the same footing as other contracts, where [they]
belong[],’” and overcoming courts’ “longstanding refusal”
to enforce such agreements. 20 Section 2 of the FAA, some-
times described as its “key provision,” provides that written
arbitration agreements in contracts involving interstate com-
merce are “‘valid, irrevocable, and enforceable, save upon such
grounds as exist at law or in equity for the revocation of any
contract.’” 21 The U.S. Supreme Court has held that state law
applies when determining whether an arbitration agreement is
valid and enforceable under § 2, 22 and we have found that the
FAA preempts inconsistent state laws that apply solely to the
enforceability of arbitration provisions in contracts involving
interstate commerce. 23
[7,8] Sections 3 and 4 of the FAA, in turn, “establish[] pro-
cedures” by which the “substantive rule” of § 2 may be imple-
mented. 24 Specifically, they prescribe that “any . . . court[] of
the United States” in which a suit or proceeding is brought on
an issue that may be referred to arbitration shall stay the case
for arbitration upon a party’s application so long as the “appli-
cant . . . is not in default in proceeding with . . . arbitration.” 25
20
Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 219, 105 S. Ct. 1238,
84 L. Ed. 2d 158 (1985), quoting H.R. Rep. No. 96, 68th Cong., 1st Sess.
(1924).
21
Prima Paint v. Flood & Conklin, 388 U.S. 395, 400, 87 S. Ct. 1801, 18 L.
Ed. 2d 1270 (1967), quoting 9 U.S.C. § 2.
22
See, e.g., Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 630-31, 125 S.
Ct. 2129, 161 L. Ed. 2d 1008 (2009) (“‘[s]tate law’ . . . is applicable to
determine which contracts are binding under § 2 . . . ‘if that law arose to
govern issues concerning the validity, revocability, and enforceability of
contracts generally’”).
23
See, e.g., Aramark Uniform & Career Apparel v. Hunan, Inc., 276 Neb.
700, 757 N.W.2d 205 (2008); Dowd v. First Omaha Sec. Corp., 242 Neb.
347, 495 N.W.2d 36 (1993).
24
Rent-A-Center, West, Inc. v. Jackson, 561 U.S. 63, 68, 130 S. Ct. 2772, 177
L. Ed. 2d 403 (2010).
25
9 U.S.C. § 3.
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They similarly provide for a party aggrieved by another’s
“alleged failure, neglect, or refusal . . . to arbitrate” to ask the
court for an order compelling arbitration. 26 We have noted that
the U.S. Supreme Court has never held that these “procedural
sections” of the FAA apply to state courts. 27 However, we have
previously taken the view that § 3 applies to state court pro-
ceedings 28 and have ruled on motions to stay and compel made
under §§ 3 and 4. 29
In our 2008 decision in LaRue Distributing, we relied
upon a test of waiver used by the Eighth Circuit that included
prejudice when considering whether the district court erred
in denying the defendants’ motion to stay trial and compel
arbitration under §§ 3 and 4 of the FAA. 30 Their agreement
with the complainant required that “‘[a]ll controversies relat-
ing to, in connection with, or arising out of this contract’”
be settled by arbitration. 31 However, when the complainant
sued for breach of contract and tortious interference with a
business relationship, the defendants did not initially seek
arbitration. 32 Instead, over a 3-year period, they served sev-
eral sets of written discovery requests on the complainant,
26
9 U.S.C. § 4.
27
See, e.g., Kremer v. Rural Community Ins. Co., 280 Neb. 591, 599, 788
N.W.2d 538, 547 (2010).
28
Dowd v. First Omaha Sec. Corp., supra note 23, 242 Neb. at 350, 495
N.W.2d at 39 (“[t]he U.S. Supreme Court has held that the FAA requires
state courts, as well as federal courts, to grant stays pending arbitration”),
citing Moses H. Cone Hospital v. Mercury Constr. Corp., 460 U.S. 1, 26,
103 S. Ct. 927, 74 L. Ed. 2d 765 (1983) (“state courts, as much as federal
courts, are obliged to grant stays . . . under § 3 of the [FAA]”).
29
See, e.g., Cullinane v. Beverly Enters. - Neb., supra note 14; Good
Samaritan Coffee Co. v. LaRue Distributing, supra note 1; Dowd v. First
Omaha Sec. Corp., supra note 23.
30
See Good Samaritan Coffee Co. v. LaRue Distributing, supra note 1.
31
Id. at 676, 748 N.W.2d at 370.
32
Good Samaritan Coffee Co. v. LaRue Distributing, supra note 1.
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exchanged pleadings, filed a counterclaim, and filed and
received a ruling on a motion for summary judgment. 33 Only
then did they move to stay the case and compel arbitration. 34
The district court denied the motion, the defendants appealed,
and we affirmed. 35
In so doing, we first noted that § 3 of the FAA requires a
court case to be stayed for arbitration only if the party seeking
the stay “‘is not in default in proceeding with . . . arbitration’”
and that “‘default’” has been interpreted to “include” waiver. 36
We next applied the Eighth Circuit’s test for waiver, without
expressly holding that this test is required to be used. 37 In
doing so, we found that all three factors “weigh[ed] in favor”
of waiver in the LaRue Distributing defendants’ case 38: There
was no contention or evidence that they were unaware of their
right to arbitration, that they acted inconsistently with this right
with their litigation-related conduct over 3 years, and that their
conduct “had the inevitable effect of causing [the complainant]
to expend substantial time and resources in connection with
this case.” 39
The same Eighth Circuit test that we adopted in LaRue
Distributing—and that the district court relied upon when
granting Kingery’s motion to stay this case—was at issue in the
U.S. Supreme Court’s decision on May 23, 2022, in Morgan. 40
Robyn Morgan had sued her former employer, Sundance,
Inc., for alleged violations of federal labor law. As part of her
job application, Morgan agreed to “‘use confidential binding
33
Id.
34
Id.
35
Id.
36
Id. at 682, 748 N.W.2d at 374.
37
Good Samaritan Coffee Co. v. LaRue Distributing, supra note 1.
38
Id. at 684, 748 N.W.2d at 375.
39
Id. at 686, 748 N.W.2d at 377.
40
Morgan v. Sundance, Inc., supra note 2.
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arbitration, instead of going to court.’” 41 However, when
Morgan sued, Sundance did not initially move to stay the case
and compel arbitration. Instead, over a period of 8 months, it
filed a motion to dismiss and an answer and engaged in media-
tion, before invoking arbitration.
The district court found that Sundance had waived its right
to arbitration with its litigation-related conduct, but the Eighth
Circuit disagreed on the grounds that Morgan suffered no prej-
udice because 4 of the 8 months were spent waiting for a deci-
sion from the court on a “quasi-jurisdictional” issue, no discov-
ery was conducted, and Morgan would not need to “duplicate
her efforts during arbitration.” 42 Morgan sought review from
the U.S. Supreme Court, which agreed to hear the case because
the federal courts of appeals took different views as to whether
prejudice is required to show a waiver of the right to arbitration
under the FAA. 43 Morgan argued, like OSCW did on appeal
before this court, that prejudice should not be required, because
§ 2 of the FAA calls for state law to be used in determining
whether an agreement to arbitrate is enforceable and because
state contract law generally does not require prejudice for a
waiver. Sundance countered that waiver involves § 3, not § 2,
and that thus, federal rules govern and impose no deadline for
seeking arbitration.
The U.S. Supreme Court ruled in favor of Morgan, but
based its decision on § 6 of the FAA, which, it observed,
provides that “any application [to the court thereunder] ‘shall
be made and heard in the manner provided by law for the
making and hearing of motions,’” except as otherwise therein
expressly provided. 44 Specifically, the Supreme Court found
that the phrase “any application” in § 6 of the FAA includes
41
Id., 142 S. Ct. at 1711.
42
Morgan v. Sundance, Inc., 992 F.3d 711, 715 (8th Cir. 2021), vacated and
remanded, Morgan v. Sundance, Inc., supra note 2.
43
Morgan v. Sundance, Inc., supra note 2.
44
Id., 142 S. Ct. at 1714, quoting 9 U.S.C. § 6.
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applications to stay a court case and compel arbitration under
§§ 3 and 4 of the FAA and noted that “a federal court assess-
ing waiver does not generally ask about prejudice.” 45 As such,
the Morgan Court concluded that the Eighth Circuit erred in
imposing an arbitration-specific requirement of prejudice. It
noted that the Eighth Circuit and other federal courts which
required prejudice did so based on the federal “‘policy favor-
ing arbitration,’” but found that that policy “does not authorize
federal courts to invent special, arbitration-preferring proce-
dural rules.” 46
[9] In light of the U.S. Supreme Court’s decision in Morgan,
we overrule our earlier decision in LaRue Distributing and
cases relying on it to the extent they can be read to hold that
prejudice is required for a waiver based on litigation-related
conduct. 47 While the doctrine of stare decisis is entitled to
great weight, it was never intended to indefinitely perpetuate
erroneous decisions, 48 and LaRue Distributing is erroneous
insofar as it appears to condition a waiver of the right to stay
a case for arbitration under § 3 of the FAA upon a show-
ing of prejudice. LaRue Distributing applied a three-part test
of waiver used by the Eighth Circuit that the U.S. Supreme
Court has held is erroneous. As such, continued application
of the Eighth Circuit’s test by this court would be erroneous.
However, our decision leaves untouched the central holding
of LaRue Distributing that the court, rather than the arbitrator,
should generally determine whether a party waived its right to
arbitration under the FAA based on litigation-related conduct. 49
Only the language adopting the Eighth Circuit’s prejudice
requirement is disapproved.
45
Id., 142 S. Ct. at 1713.
46
Id.
47
See, Morgan v. Sundance, Inc., supra note 2; Good Samaritan Coffee Co.
v. LaRue Distributing, supra note 1.
48
See Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017).
49
Good Samaritan Coffee Co. v. LaRue Distributing, supra note 1.
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In overruling this aspect of LaRue Distributing, we are
aware that Morgan was directed to the federal courts and that
questions have been raised about the application of the FAA
generally and § 3 specifically to state court proceedings. 50
However, OSCW and Kingery both acknowledge that the FAA
applies here under § 19.2 of the agreement, which calls for
the FAA to govern arbitration proceedings if the parties select
arbitration as their method of binding dispute resolution, as
they did. Moreover, even if the parties were not of this view,
we find nothing in Morgan to suggest that modifications must
be made to our earlier decisions which, directly or inferentially,
apply §§ 3 and 4 of the FAA to Nebraska state court proceed-
ings at this time in light of the facts and circumstances of this
case. OSCW asserts that the U.S. Supreme Court has “held
that Section 3 is inapplicable to state court lawsuits,” but the
cases cited in support of this proposition state only that the
U.S. Supreme Court has never held that § 3 applies to State
court proceedings. 51
Morgan also “assume[d] without deciding” that the federal
courts are correct to “resolve[] cases like this one as a mat-
ter of federal law, using the terminology of waiver,” 52 and
expressly gave the Eighth Circuit the option to determine
whether Sundance knowingly relinquished the right to arbi-
tration by acting inconsistently with that right or “determine
50
See, e.g., Badgerow v. Walters, ___ U.S. ___, 142 S. Ct. 1310, 1326, 212
L. Ed. 2d 355 (2022) (Breyer, J., dissenting) (“we cannot be sure that state
courts have the same powers under the FAA that federal courts have”);
DirectTV, Inc. v. Imburgia, 557 U.S. 47, 136 S. Ct. 463, 193 L. Ed. 2d 365
(2015) (Thomas, J., dissenting) (FAA as whole inapplicable to state court
proceedings); Southland Corp. v. Keating, 465 U.S. 1, 104 S. Ct. 852, 79
L. Ed. 2d 1 (1984) (O’Connor, J., dissenting; Rehnquist, J., joins) (§§ 3
and 4 of FAA inapplicable to state court proceedings).
51
Supplemental brief for appellant at 14. See, Volt Info. Sciences v. Leland
Stanford Jr. U., 489 U.S. 468, 109 S. Ct. 1248, 103 L. Ed. 2d 488 (1989);
Southland Corp. v. Keating, supra note 50.
52
Morgan v. Sundance, Inc., supra note 2, 142 S. Ct. at 1712.
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that a different procedural framework (such as forfeiture) is
appropriate.” 53 Nonetheless, we find that waiver remains a suit-
able term and focus for analysis for now. OSCW and Kingery
agree that the standards for default, waiver, and forfeiture are
much the same under Nebraska law, although they disagree
about the conclusions to be drawn based upon the application
of these standards in this case, and Nebraska law as to waiver
is generally consistent with federal law.
[10] Under federal and Nebraska law, “waiver” of a right
is voluntary and intentional relinquishment of a known right,
privilege, or claim, and may be demonstrated by or inferred
from person’s conduct. 54 We have noted that an agreement
to arbitrate can be waived by the parties. 55 We have further
held that state law governs the formation of contracts, as well
as the validity, revocability, and enforceability of contracts
generally, 56 and the U.S. Supreme Court has declared that state
contract law applies to contracts with arbitration agreements
governed by the FAA. 57
Since the district court here decided the matter upon a
legal framework which has since been found erroneous and
because waiver is a question of fact, 58 the matter must be
remanded back to the trial court for further proceedings.
Upon remand, the district court should apply our ordinary
53
Id., 142 S. Ct. at 1714.
54
Compare U.S. Pipeline v. Northern Natural Gas Co., 303 Neb. 444, 930
N.W.2d 460 (2019) (waiver of right under contract) with State v. Figures,
308 Neb. 801, 957 N.W.2d 161 (2021) (waiver of defendant’s right to be
present at trial) and Morgan v. Sundance, Inc., supra note 2 (similar as to
contract and other cases).
55
Boyd v. Cook, 298 Neb. 819, 906 N.W.2d 31 (2018).
56
Cullinane v. Beverly Enters. - Neb., supra note 14.
57
Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 116 S. Ct. 1652, 134
L. Ed. 2d 902 (1996).
58
See Siouxland Ethanol v. Sebade Bros., 290 Neb. 230, 859 N.W.2d 586
(2015).
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waiver standards to determine whether Kingery has waived
its right to arbitrate.
Because the order is reversed and the cause remanded to
the district court for further proceedings, we need not consider
OSCW’s other assignments of error. An appellate court is not
obligated to engage in an analysis that is not necessary to adju-
dicate the case and controversy before it. 59
CONCLUSION
Because we find prejudice is not required to prove a party
waived its right to stay a court case pending arbitration under
§ 3 of the FAA after the U.S. Supreme Court’s decision in
Morgan, 60 we reverse the order of the district court and remand
the cause for further proceedings consistent with this opinion.
Reversed and remanded for
further proceedings.
Heavican, C.J., not participating.
59
State v. Huston, 298 Neb. 323, 903 N.W.2d 907 (2017).
60
Morgan v. Sundance, Inc., supra note 2. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487203/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/18/2022 09:05 AM CST
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Heather K. Yochum, now known as
Heather K. Underwood, appellant,
v. Chad C. Yochum, appellee.
___ N.W.2d ___
Filed September 30, 2022. No. S-21-563.
1. Divorce: Judgments: Appeal and Error. The meaning of a divorce
decree presents a question of law, in connection with which an appellate
court reaches a conclusion independent of the determination reached by
the court below.
2. Contempt: Appeal and Error. In a civil contempt proceeding where
a party seeks remedial relief for an alleged violation of a court order,
an appellate court employs a three-part standard of review in which (1)
the trial court’s resolution of issues of law is reviewed de novo, (2) the
trial court’s factual findings are reviewed for clear error, and (3) the trial
court’s determinations of whether a party is in contempt and of the sanc-
tion to be imposed are reviewed for abuse of discretion.
3. Attorney Fees: Contempt: Appeal and Error. A trial court’s decision
awarding or denying attorney fees in a contempt proceeding will be
upheld on appeal absent an abuse of discretion.
4. Judgments: Words and Phrases. A judicial abuse of discretion
requires that the reasons or rulings of the trial court be clearly unten-
able insofar as they unfairly deprive a litigant of a substantial right and
a just result.
5. Damages: Evidence: Proof. A plaintiff’s evidence of damages may not
be speculative or conjectural and must provide a reasonably certain basis
for calculating damages.
6. ____: ____: ____. The question whether the evidence of damages is
“reasonably certain” is a question of law, and not as a matter to be
decided by the trier of fact.
7. Evidence: Records: Pleadings: Appeal and Error. An appellate record
typically contains the bill of exceptions, used to present factual evidence
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to an appellate court, and the transcript, used to present pleadings and
orders of the case to the appellate court.
8. Evidence: Records: Appeal and Error. A bill of exceptions is the only
vehicle for bringing evidence before an appellate court; evidence which
is not made a part of the bill of exceptions may not be considered.
9. ____: ____: ____. Before an appellate court can consider evidence bear-
ing upon an issue of fact, evidence must have been offered at the trial
court and embodied in the bill of exceptions.
10. Divorce: Contempt. When a party willfully violates a decree, coercive
and remedial sanctions are appropriate.
11. Contempt. Civil contempt proceedings are instituted to preserve and
enforce the rights of private parties to a suit when a party fails to com-
ply with a court order made for the benefit of the opposing party.
12. Contempt: Costs: Attorney Fees. Costs, including reasonable attorney
fees, can be awarded in a contempt proceeding when there has been a
finding of contempt.
13. Attorney Fees. The decision to award attorney fees is a matter of
discretion.
Appeal from the District Court for Lancaster County: Susan
I. Strong, Judge. Affirmed in part, vacated in part, and in part
reversed and remanded for further proceedings.
Ryan Mick Swaroff, of Swaroff Law, L.L.C., for appellant.
Jeanelle S. Kleveland, of Kleveland Law Office, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
The district court for Lancaster County found that Heather
K. Yochum, now known as Heather K. Underwood, was in
contempt of court orders contained in the divorce decree
from Chad C. Yochum. Specifically, it found that for the tax
years 2014 and 2019, she willfully violated the dependency
tax exemption provisions of her marital dissolution decree
and the order in modification. Heather appeals the findings of
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contempt, the amount of damages awarded to Chad, and attor-
ney fees. We reverse the district court’s order finding Heather
in contempt for taking tax exemptions for the 2014 tax year,
but affirm with respect to her filing for 2019. We vacate the
award of $3,975 awarded to Chad for tax year 2014, because
he was not harmed in 2014. We also vacate $600 in dam-
ages awarded to Chad for the 2019 tax year for lack of proof.
Finally, we reverse the award of attorney fees to Chad and
remand the cause for further proceedings with respect to the
amount of Chad’s attorney fees.
STATEMENT OF FACTS
On March 7, 2011, the district court entered a decree dis-
solving the marriage of Heather, the appellant, and Chad, the
appellee. The parties have four children together. In 2016, the
decree of dissolution was modified as to child support obli-
gations, custody, and specific parenting time. In 2020, Chad
filed an application for order to show cause, alleging that
Heather was in contempt of the district court’s prior orders
because she claimed dependency tax exemptions on her fed-
eral taxes in 2014 and 2019. The district court for Lancaster
County held hearings on three dates in the fall of 2020 and
a fourth date in June 2021. In October 2020, Heather filed a
motion for Chad to show cause why he should not be found
in contempt of court for allegedly failing to pay his portion
of childcare expenses during 2019. The record may be sum-
marized as follows:
2011 Decree.
The 2011 decree awarded Heather physical custody of the
parties’ minor children, and Chad received reasonable rights
of parenting time set forth in the parenting plan. It provided
that Chad pay child support to Heather and subjected him to
income withholding. The attached property settlement also
provided that “in the event [Chad] fails to pay any support
as such failure is certified each month by the Clerk of the
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Lancaster County District Court in which court-ordered sup-
port is delinquent in an amount equal to the support due and
payable for a one-month period of time,” he would be required
to show cause why such payment was not made or face a war-
rant for his arrest. Critical to the arguments made in this litiga-
tion, the decree provided:
7. DEPENDENCY EXEMPTIONS: Commencing the
year 2011, [Chad] shall have the right to claim [two
of the minor children] as dependents on his State and
Federal Taxes. At such time as there are three (3) minor
children, [Heather] shall claim two (2) of the children
in even-numbered years, and [Chad] shall claim one (1)
child in even-numbered years. In odd-numbered years,
[Heather] shall claim one (1) minor child and [Chad]
shall claim two (2) children. At such time as there are
two (2) minor children, each party shall claim one (1)
child. When there is only one minor child, the parties
shall alternate the dependency exemption with [Heather]
claiming the minor child in all even-numbered years
and [Chad] claiming the minor child[] all odd-numbered
years. [Chad] shall only be entitled to claim any of the
minor children for dependency exemption purposes in
any year so long as he is current on his child support,
child care, and medical care obligations at the end of
the appropriate tax year. [Heather] agrees to not make
any conflicting claim for said exemptions and shall upon
request execute an IRS form 8332 releasing all right to
claim said exemption.
8. CHILD CARE: The parties shall each pay 50% [of]
the work related child care costs incurred on behalf of the
minor children, and [Chad] shall reimburse [Heather], as
necessary, for child care expenses within fifteen (15) days
of receipt of the statement for the same. [Heather] shall be
allowed to claim the child care expense as a deduction on
her taxes each year.
(Emphasis supplied.)
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2016 Order in Modification.
On July 27, 2016, the district court entered an order in
modification which, inter alia, modified the amount of Chad’s
child support obligations. The order of modification did not
provide for any changes to the parties’ dependency tax exemp-
tions and childcare obligations and stated that “[a]ny provi-
sions not herein modified from prior orders remain in full force
and effect.”
2014 Dependent Tax Exemption.
Chad offered as an exhibit a notice of penalty he received
from the Internal Revenue Service after both he and Heather
had claimed the same two minor children for the tax year
2014.
Chad testified, and the record reflects, that in 2014, he
had an automatic wage withholding for his child support.
However, a payment history report from the Department
of Health and Human Services (DHHS) showed that on
December 31, 2014, Chad owed $557.79. Chad and Heather
testified that Chad did not meet his child support obligations
for a period of several weeks in 2013 because he lost his
job, and the amount owed shown on the DHHS report at the
end of 2014 reflected what remained of his prior arrearage.
The DHHS report showed that Chad’s consistent payments
throughout 2014 applied to satisfy the present month’s child
support obligation, and DHHS applied any remaining money
from Chad’s payments to the balance in arrears carried for-
ward from past months.
Heather had testified at depositions taken in July 2016
that she believed Chad could not take the 2014 dependency
exemption, because he was not “current” on child support.
She testified that she had talked to child support enforcement
and obtained a copy of the payment history report for that
year. Because Chad did not have a zero balance at the end
of 2014, she filed her taxes believing he could not take the
exemption.
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2019 Dependent Tax Exemption.
With respect to the 2019 tax year, the payment history report
from DHHS showed that Chad had a credit on December 31,
2019, of $114.85 for child support. Chad testified about a
timing issue, specifically that the account showed a credit,
because there are periods of time where there are credits and
periods of time where money is owed, depending on how
many pay periods are in a month. He testified that in January
or early February 2020, he sent a text message to Heather
reminding her that he could claim the two minor children
on the taxes for the 2019 tax year. He received no response.
He testified that he sent a text message to Heather in August
2020 asking why she used the child tax deduction and that she
stated she forgot.
Chad testified at the October 2020 trial that he lost a $2,000
tax credit because he could not claim one child in 2019 and
that he subsequently lost out on a coronavirus relief payment
of $500. He explained that the 2019 coronavirus relief package
would have given him an additional payment for each child
under the age of 17 and requested that Heather repay the relief
money as well as the tax credit.
Daycare.
Chad testified on cross-examination that the children
attended daycare from 2010 to 2018, and he conceded that he
had never paid childcare expenses to Heather or to the child-
care facilities. He claimed he had never received any statement
or receipt from Heather regarding expenses for daycare or
childcare. He acknowledged two text message conversations
and agreed that Heather had previously told Chad that he owed
half of childcare expenses. Chad testified that he thought day-
care expenses were free for Heather because of her work for
the childcare providers. He testified that he believed that day-
care continued to be free as a benefit of Heather’s employment
and that that was their understanding at the time of the divorce.
He testified that he did not receive an invoice to pay daycare
expenses until late 2020.
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Heather testified that she had provided Chad three daycare
receipts over the years and that she alone paid for daycare
from 2011 through 2018. Heather testified that she stopped
providing Chad receipts, because he would get angry and call
her names. Heather testified that she received “Title 20” and
$5,000 per year of daycare costs from her employer. Heather
did not provide any exhibits showing receipts she sent to Chad
prior to October 2020, which date was proximate to Heather’s
filing for contempt for Chad’s alleged failure to pay childcare.
Heather offered exhibits 21 and 22, which included attach-
ments to an October 5, 2020, text message sent by Heather to
Chad. The attachments were represented as reflecting daycare
expenses. After her benefits, Heather claimed to have paid
childcare expenses of $946 in 2016, $1,135.95 in 2017, and
$757.28 in 2018. Exhibits 21 and 22 were excluded from evi-
dence as hearsay.
District Court Order.
At the conclusion of the evidence, the district court found
Heather in contempt for taking incorrect dependency exemp-
tions in 2014 and 2019. The court noted that Chad fell behind
in 2013 when he lost his job. In June 2021, the court issued an
order finding Heather in willful and contumacious contempt
of the decree, sentencing her to 30 days in jail, with the abil-
ity to avoid jail time by making $200 monthly payments to
Chad for 24 months. The court ordered Heather to pay a total
judgment of $10,075, which was composed of $3,975 in addi-
tional taxes Chad paid in 2014, a $2,000 tax refund he lost for
2019, $500 and $600 2020 coronavirus relief payments, and
$3,000 in attorney fees. Heather appeals.
ASSIGNMENTS OF ERROR
Heather claims, summarized and restated, that the district
court erred when it found that Heather was in willful and con-
tumacious contempt of the decree and order in modification.
She also claims that the district court abused its discretion with
respect to damages and attorney fees awarded to Chad.
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STANDARDS OF REVIEW
[1] The meaning of a divorce decree presents a question
of law, in connection with which an appellate court reaches
a conclusion independent of the determination reached by the
court below. Vyhlidal v. Vyhlidal, 311 Neb. 495, 973 N.W.2d
171 (2022).
[2] In a civil contempt proceeding where a party seeks reme-
dial relief for an alleged violation of a court order, an appellate
court employs a three-part standard of review in which (1) the
trial court’s resolution of issues of law is reviewed de novo, (2)
the trial court’s factual findings are reviewed for clear error,
and (3) the trial court’s determinations of whether a party is in
contempt and of the sanction to be imposed are reviewed for
abuse of discretion. Id.
[3,4] A trial court’s decision awarding or denying attorney
fees in a contempt proceeding will be upheld on appeal absent
an abuse of discretion. See Becher v. Becher, 311 Neb. 1, 970
N.W.2d 472 (2022). A judicial abuse of discretion requires that
the reasons or rulings of the trial court be clearly untenable
insofar as they unfairly deprive a litigant of a substantial right
and a just result. Id.
ANALYSIS
Heather claims that the district court erred when it found
that she was willfully in contempt of court because she had
claimed dependency exemptions on her federal income taxes
for the years 2014 and 2019. She also challenges the amounts
of damages and attorney fees awarded to Chad. Heather
contends that the language of the decree, unchanged by the
subsequent order in modification, permitted Chad to claim
the minor children for dependency exemption purposes only
“so long as he is current on his child support, child care, and
medical care obligations at the end of the appropriate tax
year” and that he was not “current.” Brief for appellant at 14
(emphasis omitted). Below, we examine whether Chad was
current on these obligations at the end of the 2014 and 2019
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tax years and conclude that Chad was not current in 2014 but
was current in 2019 and thereby entitled to the dependency tax
exemption for 2019, but not 2014. We also adjust the damages
awarded to Chad and remand the issue of attorney fees to the
district court.
2014 Tax Year.
With respect to 2014, Heather argues that Chad was in
arrears on child support payments and was not “current” at the
end of the year—and thus not entitled to claim the dependent
tax exemption—and was not harmed with respect to his liabil-
ity for the 2014 tax year. We agree with Heather’s argument.
Chad does not contest that he owed a balance on December
31, 2014, but argues that because he had not missed monthly
payments in 2014, he was “current.” We conclude that “cur-
rent” in the context of this decree means fully paid and up to
date. Chad was not “current” at the end of the 2014 tax year.
The testimony was consistent that Chad had an automatic
wage withholding, except for 6 weeks in 2013 when he lost
his job. Exhibits at trial, including child support payment his-
tory reports from DHHS, confirmed this testimony. When Chad
missed several child support payments in 2013, his account fell
into arrears. As Chad resumed his regular payments, each pay-
ment applied first to the pending month’s child support obliga-
tion. Money remaining after the pending month’s support obli-
gation served to reduce the amount in arrears, and the arrearage
decreased until Chad became fully caught up in 2016. On
December 31, 2014, Chad owed a balance of $557.79, largely
composed of the arrearage incurred in 2013 for failure to pay
child support.
Chad argues that he was “current” under the decree, because a
balance of $557.79 was not enough to trigger enforcement pro-
ceedings. As authority, he cites Neb. Rev. Stat. § 43-1718.01(4)
(Reissue 2016), which provides:
No obligor whose child support payments are automati-
cally withheld from his or her paycheck shall be regarded
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or reported as being delinquent or in arrears if (a) any
delinquency or arrearage is solely caused by a disparity
between the schedule of the obligor’s regular pay dates
and the scheduled date the child support is due, (b) the
total amount of child support to be withheld from the
paychecks of the obligor and the amount ordered by the
support order are the same on an annual basis, and (c) the
automatic deductions for child support are continuous and
occurring.
Section 43-1718.01 concerns child support enforcement. This
case is not an enforcement action. Instead, we are called upon
to follow the language of the decree. See Vyhlidal v. Vyhlidal,
311 Neb. 495, 973 N.W.2d 171 (2022). Even if § 43-1718.01
could provide context for the meaning of certain words used
in the decree, it is factually inapplicable here because Chad’s
arrearage is not a timing issue “solely caused by a disparity
between the schedule of the obligor’s regular pay dates and the
scheduled date the child support is due.” Chad’s arrearage was
not caused solely by bureaucratic lag or timing discrepancies;
the reason he was not current was because of events in 2013.
Under the plain language of the decree, because Chad was not
current on his child support obligations at the end of the 2014
tax year, he was not entitled to claim the dependency exemp-
tion on his federal taxes.
The record shows that Heather was informed by DHHS
reports that Chad was in arrears on December 31, 2014, and
thus, Chad was not “current.” Appropriately, she filed her taxes
and claimed the dependency exemption for the 2014 tax year.
The district court erred when it held Heather in willful and
contumacious contempt of court for having taken child tax
exemptions in her tax filings for 2014. We reverse this portion
of the order of the district court. Further, based on our ruling,
because Chad was not harmed with respect to his tax liability
for the 2014 tax year, we vacate the damage award of $3,975
to which Chad was not entitled.
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2019 Tax Year.
With respect to 2019, Heather claims that the district court
erred when it found her in contempt for taking the dependent
tax credit for 2019. Specifically, Heather claims that Chad was
not current on paying his portion of childcare expenses and
thus not entitled to the exemptions. We find no merit to this
claim of error.
Heather testified that she paid work-related childcare
expenses for the children over the years, and Chad admitted
that he had never paid Heather for daycare, because he believed
it was a benefit of Heather’s employment. However, turning to
the decree which controls our analysis, the question for the trial
court and for us on appeal is whether Chad failed to “reimburse
[Heather], as necessary for child care expenses within fifteen
(15) days of receipt of the statement for the same.”
The record before us has no evidence that Heather timely
submitted childcare expense statements to Chad prior to
December 31, 2019, as anticipated by the decree or that such
statements remained unpaid at the end of December 2019.
Heather’s requests for reimbursement for childcare expenses
submitted to Chad after December 31, 2019, are not encom-
passed by the assignments of error in this appeal. The record of
admitted evidence does not prove a failure by Chad to timely
pay childcare, and we note merely incidentally that DHHS pay-
ment history reports demonstrate that on December 31, 2019,
Chad had a child support credit of $114.85.
Given the admitted evidence, Chad established that Heather
took the dependency exemption for 2019, even though Chad
was current on his obligations under the decree and order
in modification. The district court did not err when it found
Heather in contempt of the decree, because she took the depen-
dency exemptions for the 2019 tax year. We affirm this portion
of the district court’s order.
Damages for 2019 Tax Year.
Because we have concluded that Chad was entitled to the
dependency exemption for 2019, we must consider the damages
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he may have suffered as a consequence of being deprived of
the exemption in 2019. Specifically, although there was evi-
dence that Chad did not receive a $500 coronavirus relief pay-
ment, Heather claims that Chad did not adduce evidence of the
second 2020 relief payment, and the district court erred when
it included an extra $600 in damages for Chad that was unsup-
ported by the evidence at trial. We agree with Heather that the
record lacks evidence related to a hypothetical $600 payment
and vacate the award of $600.
[5,6] We have often stated that a plaintiff’s evidence of dam-
ages may not be speculative or conjectural and must provide
a reasonably certain basis for calculating damages. Pribil v.
Koinzan, 266 Neb. 222, 665 N.W.2d 567 (2003). We have con-
sistently framed the question whether the evidence of damages
is “reasonably certain” as a question of law, and not as a matter
to be decided by the trier of fact. Id.
[7-9] Here, to evaluate whether the evidence of Chad’s
claimed damages is reasonably certain, we must examine the
evidence in the record. An appellate record typically contains
the bill of exceptions, used to present factual evidence to an
appellate court, and the transcript, used to present pleadings
and orders of the case to the appellate court. In re Estate of
Radford, 297 Neb. 748, 901 N.W.2d 261 (2017). A bill of
exceptions is the only vehicle for bringing evidence before an
appellate court; evidence which is not made a part of the bill
of exceptions may not be considered. Id. Before this court can
consider evidence bearing upon an issue of fact, evidence must
have been offered at the trial court and embodied in the bill
of exceptions. Smick v. Langvardt, 216 Neb. 778, 345 N.W.2d
830 (1984). Specifically, we must consider whether the bill
of exceptions contains any evidence which contributed to the
lower court’s decision either through exhibits, through judicial
notice, or as a result of a stipulation or admission by the par-
ties. See In re Estate of Radford, supra.
The parties do not dispute that Chad lost a $2,000 refund
he would have received if he had claimed a dependent on his
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2019 taxes. Chad also testified at the October 5, 2020, hearing
that he lost a $500 payment from the federal coronavirus relief
package. However, although Chad did not testify to a second
relief payment, the district court nevertheless awarded Chad
$1,100 to reflect $500 and $600 coronavirus relief payments.
Although there was some argument by counsel for Chad rela-
tive to the $600 stimulus opportunity, the record does not con-
tain evidence, judicial notice, or stipulation or admission of the
parties that Chad lost a $600 relief payment which may have
been available later in 2020. Accordingly, we reverse the award
of the additional $600 in damages to Chad because it exceeded
the evidence in the record.
Attorney Fees.
Finally, Heather assigns error to the district court’s award of
$3,000 for Chad’s attorney fees, noting that Chad had submit-
ted an affidavit that indicated his attorney fees were $2,031.44.
[10-12] We have explained that when a party willfully vio-
lates a decree, coercive and remedial sanctions are appropri-
ate. See Vyhlidal v. Vyhlidal, 311 Neb. 495, 973 N.W.2d 171
(2022). Civil contempt proceedings are instituted to preserve
and enforce the rights of private parties to a suit when a party
fails to comply with a court order made for the benefit of the
opposing party. Id. Costs, including reasonable attorney fees,
can be awarded in a contempt proceeding when there has been
a finding of contempt. Id.
[13] The decision to award attorney fees is a matter of dis-
cretion. See Becher v. Becher, 311 Neb. 1, 970 N.W.2d 472
(2022). Because we reverse the portion of the order which
found Heather in contempt related to the 2014 dependency
exemption and we vacate the damage awards of $3,975 and
$600 to Chad, we believe the district court should exercise its
discretion anew in light of these outcomes. Accordingly, we
reverse the award of attorney fees and remand the cause for
reconsideration and recalculation of attorney fees in light of
this opinion.
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CONCLUSION
For the reasons above, we conclude that Heather was not
in contempt of the decree when she took a dependency tax
exemption for 2014, and we reverse the order of the district
court which found Heather in contempt regarding the 2014 tax
exemption and vacate the award to Chad of $3,975 occasioned
by this incorrect ruling. We affirm the order finding Heather
in contempt with respect to the 2019 tax year. We vacate the
award of $600 in damages to Chad for a lost coronavirus relief
payment for the 2019 tax year which was unsupported by the
record. We reverse the award of attorney fees to Chad and
remand the cause with directions to award Chad reasonable
attorney fees, and for further proceedings in conformity with
this opinion.
Affirmed in part, vacated in part, and
in part reversed and remanded
for further proceedings. | 01-04-2023 | 11-18-2022 |
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11/18/2022 09:05 AM CST
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IN RE ESTATE OF ADELUNG
Cite as 312 Neb. 647
In re Estate of Madeline A.
Adelung, deceased.
Lynda Adelung Heiden, Personal Representative
of the Estate of Madeline A. Adelung,
deceased, appellant and cross-appellee,
v. Kent A. Adelung, appellee and
cross-appellant.
___ N.W.2d ___
Filed October 14, 2022. No. S-21-838.
1. Appeal and Error. The construction of a mandate issued by an appel-
late court presents a question of law.
2. Judgments: Appeal and Error. On questions of law, an appellate court
is obligated to reach a conclusion independent of the determination
reached by the court below.
3. Actions: Appeal and Error. The law-of-the-case doctrine reflects the
principle that an issue litigated and decided in one stage of a case should
not be relitigated at a later stage.
4. Appeal and Error. Under the law-of-the-case doctrine, an appellate
court’s holdings on issues presented to it conclusively settle all matters
ruled upon, either expressly or by necessary implication.
5. Judgments: Appeal and Error. The law-of-the-case doctrine applies
with greatest force when an appellate court remands a case to an inferior
tribunal. Upon remand, a district court may not render a judgment or
take action apart from that which the appellate court’s mandate directs
or permits.
6. Judgments: Waiver: Appeal and Error. Under the mandate branch
of the law-of-the-case doctrine, a decision made at a previous stage of
litigation, which could have been challenged in the ensuing appeal but
was not, becomes the law of the case; the parties are deemed to have
waived the right to challenge that decision. But an issue is not consid-
ered waived if a party did not have both an opportunity and an incentive
to raise it in a previous appeal.
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IN RE ESTATE OF ADELUNG
Cite as 312 Neb. 647
Appeal from the County Court for Buffalo County: Gerald
R. Jorgensen, Jr., Judge. Affirmed.
Blake E. Johnson, of Bruning Law Group, for appellant.
Jared J. Krejci, of Smith, Johnson, Allen, Connick & Hansen,
for appellee.
Heavican, C.J., Cassel, Stacy, Papik, and Freudenberg,
JJ., and Noakes, District Judge.
Heavican, C.J.
INTRODUCTION
This case comes to us following our remand to the county
court for a redetermination of damages owed by the defendant.
At issue is whether the county court erred when it declined to
award prejudgment interest to the estate. The estate appeals.
We affirm.
BACKGROUND
This is the second time this court has been presented with an
appeal from the estate of Madeline A. Adelung (Estate). 1 In our
earlier case, Adelung’s son, Kent A. Adelung, appealed from
the decision of the county court finding him liable following
an action for an equitable accounting sought by the Estate’s
personal representative, Lynda Adelung Heinen, Madeline’s
daughter.
On appeal, we concluded that the Estate was barred by
the statute of limitations from recovering a portion of the
farm income it alleged that Kent had wrongfully collected.
We affirmed, as modified, the county court’s judgment and
remanded the cause to the county court with directions for the
court to calculate the judgment in conformity with our opinion.
Upon remand, the Estate sought prejudgment interest.
The county court noted that it had not previously ordered
1
See In re Estate of Adelung, 306 Neb. 646, 947 N.W.2d 269 (2020).
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prejudgment interest, that this court’s opinion had made no
mention of prejudgment interest, and that to award it would
“not [be] proper.” The Estate appeals, and Kent cross-appeals.
ASSIGNMENTS OF ERROR
The Estate assigns that the county court erred in not applying
prejudgment interest under Neb. Rev. Stat. § 45-104 (Reissue
2021) to the amount of the modified judgment.
On cross-appeal, Kent assigns that the county court erred
in not concluding that the Estate failed to adequately plead or
otherwise raise the issue of prejudgment interest and, as such,
did not have a substantive right to recover such interest.
STANDARD OF REVIEW
[1,2] The construction of a mandate issued by an appellate
court presents a question of law. 2 On questions of law, we are
obligated to reach a conclusion independent of the determina-
tion reached by the court below. 3
ANALYSIS
This case examines the intersection of the awarding of pre-
judgment interest and the law-of-the-case doctrine. Some back-
ground on both principles is helpful.
Statutory authority for the awarding of prejudgment interest
is separately found in Neb. Rev. Stat. § 45-103.02 (Reissue
2021) and § 45-104. We clarified in Weyh v. Gottsch 4 that
§§ 45-103.02 and 45-104 are
alternate and independent statutes authorizing the recovery
of prejudgment interest. In other words, the Legislature
has created three separate ways to recover prejudgment
interest, and none is preferred. Section 45-103.02(1)
authorizes the recovery of prejudgment interest on unliq-
uidated claims when the statutory preconditions are met,
2
County of Sarpy v. City of Gretna, 276 Neb. 520, 755 N.W.2d 376 (2008).
3
Id.
4
Weyh v. Gottsch, 303 Neb. 280, 313-14, 929 N.W.2d 40, 63 (2019).
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§ 45-103.02(2) authorizes the recovery of prejudgment
interest on liquidated claims, and § 45-104 authorizes the
recovery of prejudgment interest on four categories of
contract-based claims without regard to whether the claim
is liquidated or unliquidated.
[3-5] As noted, the law-of-the-case doctrine is also impli-
cated here. This doctrine reflects the principle that an issue
litigated and decided in one stage of a case should not be reliti-
gated at a later stage. 5 Under that doctrine, an appellate court’s
holdings on issues presented to it conclusively settle all matters
ruled upon, either expressly or by necessary implication. 6 The
doctrine applies with greatest force when an appellate court
remands a case to an inferior tribunal. 7 Upon remand, a district
court may not render a judgment or take action apart from that
which the appellate court’s mandate directs or permits. 8
[6] Under the mandate branch of the law-of-the-case doc-
trine, a decision made at a previous stage of litigation, which
could have been challenged in the ensuing appeal but was not,
becomes the law of the case; the parties are deemed to have
waived the right to challenge that decision. 9 But an issue is not
considered waived if a party did not have both an opportunity
and an incentive to raise it in a previous appeal. 10
The Nebraska Court of Appeals discussed the intersection
of prejudgment interest and the mandate branch of the law-of-
the-case doctrine in Valley Cty. Sch. Dist. 88-0005 v. Ericson
State Bank. 11 In that case, a bank (found liable below) appealed
from, among other things, the district court’s award of
5
deNourie & Yost Homes v. Frost, 295 Neb. 912, 893 N.W.2d 669 (2017).
6
Id.
7
Id.
8
Id.
9
Id.
10
Id.
11
Valley Cty. Sch. Dist. 88-0005 v. Ericson State Bank, 18 Neb. App. 624,
790 N.W.2d 462 (2010).
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prejudgment interest at a rate of 12 percent per annum. The
Court of Appeals affirmed. On remand, the district court
entered an order in conformity with the Court of Appeals’
opinion and awarded postjudgment interest at the same rate.
The bank again appealed. 12
In defending the district court’s award, the appellee con-
tended that the law-of-the-case doctrine operated to prevent
the bank from challenging the 12-percent rate applied to the
postjudgment amount. The Court of Appeals disagreed:
In Valley Cty. I . . . , we specifically stated that § 45-104
applied “[b]ecause there was no ‘otherwise agreed’ upon
rate for prejudgment interest” and that [the appellee] was
entitled to the 12–percent prejudgment interest until the
entry of judgment. Neither the district court’s judgment
nor our opinion stated that the 12–percent interest rate
would continue to be applied after entry of judgment;
thus, the [b]ank did not have a reason to raise the issue
of the appropriate postjudgment interest rate at that time.
Had the district court’s initial judgment expressly stated
a postjudgment interest rate, [the appellee’s] argument
would have had merit. But because the judgment was
silent on the matter of postjudgment interest, we reject
[the appellee’s] argument that the matter should have
been raised in the prior appeal. 13
Also relevant to our determination is Neb. Ct. R. Pldg.
§ 6-1108(a), which states:
A pleading which sets forth a claim for relief, whether an
original claim, counterclaim, cross-claim, or third-party
claim, shall contain (1) a caption, (2) a short and plain
statement of the claim showing that the pleader is entitled
to relief, and (3) a demand for judgment for the relief the
pleader seeks. Relief in the alternative or of several dif-
ferent types may be demanded. If the recovery of money
12
See id.
13
Id., 18 Neb. App. at 628-29, 790 N.W.2d at 466.
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be demanded, the amount of special damages shall be
stated but the amount of general damages shall not be
stated; and if interest thereon be claimed, the time from
which interest is to be computed shall also be stated.
(Emphasis supplied.)
In Albrecht v. Fettig, 14 the Court of Appeals discussed
whether the failure to request interest in a complaint precluded
a litigant from recovering interest, 15 noting that the purpose of
compliance with § 6-1108 was to provide notice of the relief
that the plaintiff was attempting to obtain. 16 In AVG Partners I,
this court expanded the Albrecht holding to note that “compli-
ance with § 6-1108(a) is not determinative where entitlement
to interest is based on statute and the adverse party had notice
and an opportunity to be heard prior to judgment.” 17 Based on
this, we concluded that although prejudgment interest was not
requested in the complaint, it was “the subject of extensive
argument prior to judgment” 18 and thus was recoverable.
The county court and the parties frame the issue presented
by this appeal primarily as one involving the law-of-the-case
doctrine. The parties ask us to determine whether the fact that
this court’s mandate failed to order prejudgment interest means
that to do so would be outside of that prior mandate.
Generally speaking, a lower court may do nothing other than
what a higher court has ordered it to do via the higher court’s
mandate. And in this case, we ordered the lower court to rede-
termine the damages award once we concluded that the statute
of limitations operated to prevent the Estate from recovering
some of the farm income that had been awarded to it by the
county court. This did not include interest.
14
Albrecht v. Fettig, 27 Neb. App. 371, 932 N.W.2d 331 (2019).
15
See AVG Partners I v. Genesis Health Clubs, 307 Neb. 47, 948 N.W.2d
212 (2020) (quoting Albrecht, supra note 14).
16
Id.
17
Id., 307 Neb. at 64, 948 N.W.2d at 230.
18
Id.
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As noted above, there are some instances where issues out-
side of the mandate may be raised on remand—namely, if there
was no opportunity or incentive to appeal from the issue now
raised. But we need not decide here whether the Estate should
have appealed from the county court’s failure to award interest
below. Rather, we find dispositive the Estate’s failure to seek
interest in its pleading or otherwise raise the issue of interest
prior to judgment.
The purpose behind compliance with § 6-1108 of the plead-
ing rules is to provide notice to other litigants that prejudgment
interest is at issue. If there was notice, the failure to comply
with § 6-1108 might be excusable. But here, there was no
compliance with § 6-1108, nor was there notice to Kent on the
issue of prejudgment interest prior to the entry of judgment
in the Estate’s favor. On these facts, we find no error in the
district court’s refusal to award interest on remand. Finding no
merit to the Estate’s assignment of error, albeit for a different
reason than that stated by the county court, we affirm. We need
not reach Kent’s assignment of error on cross-appeal.
CONCLUSION
The decision of the county court is affirmed.
Affirmed.
Miller-Lerman, J., participating on briefs.
Funke, J., not participating. | 01-04-2023 | 11-18-2022 |
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- 518 -
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312 Nebraska Reports
SCALISE V. DAVIS
Cite as 312 Neb. 518
Nicholas N. Scalise, appellant, v.
Jeffrey L. Davis and the Sarpy County
Sheriff’s Office, appellees.
___ N.W.2d___
Filed September 30, 2022. No. S-21-031.
1. Courts: Appeal and Error. In an appeal from the county court general
civil docket, the district court acts as an intermediate appellate court and
not as a trial court.
2. ____: ____. Both the district court and a higher appellate court gener-
ally review appeals from the county court for error appearing on the
record.
3. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable.
4. Appeal and Error. An appellate court independently reviews questions
of law in appeals from the county court.
5. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach an
independent conclusion irrespective of the determination made by the
court below.
6. Misdemeanors. For purposes of 18 U.S.C. § 921(a)(33)(A) (2018), a
misdemeanor crime of domestic violence is a misdemeanor offense that
(1) has, as an element, the use of force and (2) is committed by a person
who has a specified domestic relationship with the victim.
7. Statutes: Words and Phrases. A divisible statute is a statute that sets
out one or more elements of the offense in the alternative.
8. Criminal Law: Statutes: Convictions. The circumstance-specific
approach applies where the underlying statute refers to specific circum-
stances rather than to generic crimes and allows a court to look beyond
the elements of the prior offense and consider the facts and circum-
stances underlying an offender’s conviction.
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Appeal from the District Court for Sarpy County, Stefanie
A. Martinez, Judge, on appeal thereto from the County
Court for Sarpy County, Todd J. Hutton, Judge. Judgment of
District Court affirmed.
Hugh I. Abrahamson, of Abrahamson Law Office, and
Phillip G. Wright for appellant.
No appearance for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
INTRODUCTION
In 2020, the Sarpy County, Nebraska, sheriff’s office denied
Nicholas N. Scalise’s application for a certificate to possess a
handgun. In doing so, the sheriff determined that Scalise’s prior
conviction for third degree assault qualified as a “misdemeanor
crime of domestic violence” under 18 U.S.C. § 922(g)(9)
(2018). Scalise filed a handgun appeal with the county court,
arguing that he had never been convicted of a crime of domes-
tic violence. The county court denied Scalise’s relief, as did
the district court on appeal. For reasons set forth herein, we
affirm the order of the district court, affirming the order of the
county court.
BACKGROUND
In 2018, Scalise was arrested and charged with strangulation
from an incident arising out of an argument with the victim.
Pursuant to a plea agreement, an amended criminal complaint
was filed, which charged Scalise with third degree assault, a
Class I misdemeanor, and alleged that Scalise “did intention-
ally, knowingly or recklessly cause bodily injury to, and/or
did threaten [the victim] in a menacing manner, in violation
of Section 28-310(1).” Scalise pled guilty to the amended
complaint and was sentenced to a term of probation. After
successfully completing probation in 2020, Scalise attempted
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to purchase a handgun, but was advised by the retailer that
he needed to obtain a permit from the Sarpy County sher-
iff’s office.
The Sarpy County sheriff’s office denied Scalise’s appli-
cation for a handgun certificate pursuant to Neb. Rev. Stat.
§ 69-2404 (Reissue 2016) and 18 U.S.C. 922(g)(9), finding
that Scalise’s conviction for third degree assault met the cri-
teria for domestic violence under federal law. Scalise then
filed an appeal pursuant to Neb. Rev. Stat. § 69-2406 (Reissue
2016) in the county court for Sarpy County, asserting that he
had never been convicted of domestic violence or a crime of
domestic violence.
At the hearing before the county court, the sheriff’s office
offered exhibit 1, which contained the following documents: the
amended complaint charging Scalise with third degree assault,
the order placing Scalise on probation, Scalise’s request for sat-
isfactory discharge from probation, the order releasing Scalise
from probation, incident reports from the Papillion, Nebraska,
police department, and the victim/witness statement.
Scalise offered exhibits 2, 3, and 4, which consisted of
the criminal complaint charging him with strangulation; the
amended complaint charging him with third degree assault; the
journal entry and order showing his entry of a guilty plea to
the amended charge; the complete transcript from the January
24, 2019, sentencing hearing; the order placing him on proba-
tion; his request for satisfactory discharge from probation; the
order releasing him from probation; the sheriff’s denial of his
application for a handgun certificate; and a copy of his hand-
gun appeal.
After the hearing, the county court issued an order deny-
ing the appeal and finding that the sheriff’s office acted in
accordance with state and federal law. In its order, the court
explained that § 922(g)(9) “prohibits any person who has been
convicted in any court of a misdemeanor crime of domestic
violence to . . . possess in or affecting commerce, any firearm
or ammunition.”
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In discussing what constitutes a domestic violence convic-
tion, the county court looked to the U.S. Supreme Court’s
opinion in United States v. Hayes, 1 which found that a domes-
tic relationship need not be a defining element of the predi-
cate offense under consideration when evaluating whether a
handgun certificate can properly be issued. Because Scalise
was convicted of third degree assault, which is a misdemeanor
under Neb. Rev. Stat. § 28-310 (Reissue 2016) that contains
elements of “[i]ntentionally, knowingly, or recklessly caus[ing]
bodily injury to another person” or “threatens another in a
menacing manner,” and because the adduced evidence showed
that Scalise and the victim of the assault were in a domestic
relationship, the court found the restrictions established by
§ 922(g)(9) apply to Scalise.
Scalise appealed to the district court, which entered an
opinion and order affirming the county court’s order and con-
cluding that the restrictions established by § 922(g)(9) apply
to Scalise, resulting in his ineligibility to obtain a handgun
certificate.
Scalise timely appealed, but the sheriff’s office declined to
file a brief in this appeal. We moved this case to our docket on
our own motion.
ASSIGNMENTS OF ERROR
Scalise assigns, consolidated, that the district court erred in
affirming the county court’s finding that Scalise’s third degree
assault conviction qualified as a predicate offense for the pur-
pose of a federal prohibition on firearms under § 922(g)(9).
Scalise also argues the court erred in failing to advise him that
if convicted, he would lose the right to bear arms. Scalise fur-
ther makes a number of constitutional arguments pertaining to
the Second Amendment to the U.S. Constitution, double jeop-
ardy, and due process.
1
United States v. Hayes, 555 U.S. 415, 129 S. Ct. 1079, 172 L. Ed. 2d 816
(2009).
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STANDARD OF REVIEW
[1-3] In an appeal from the county court general civil
docket, the district court acts as an intermediate appellate court
and not as a trial court. 2 Both the district court and a higher
appellate court generally review appeals from the county court
for error appearing on the record. 3 When reviewing a judgment
for errors appearing on the record, an appellate court’s inquiry
is whether the decision conforms to the law, is supported by
competent evidence, and is neither arbitrary, capricious, nor
unreasonable. 4
[4,5] We independently review questions of law in appeals
from the county court. 5 Statutory interpretation presents a
question of law, for which an appellate court has an obligation
to reach an independent conclusion irrespective of the determi-
nation made by the court below. 6
ANALYSIS
Applicable Federal Law
Scalise applied for his handgun certificate under § 69-2404.
However, § 69-2404 states that an applicant cannot obtain a
handgun certificate if the applicant is prohibited from pur-
chasing or possessing a handgun by § 922. Section 922(g)(9)
makes it unlawful for any person who has been convicted of a
“misdemeanor crime of domestic violence” to possess a fire-
arm. Under 18 U.S.C. § 921(a)(33)(A) (2018), the term “mis-
demeanor crime of domestic violence” means an offense that
(i) is a misdemeanor under Federal, State, or Tribal
law; and
(ii) has, as an element, the use or attempted use of
physical force, or the threatened use of a deadly weapon,
2
See In re Conservatorship of Mosel, 234 Neb. 86, 449 N.W.2d 220 (1989).
3
State v. Avey, 288 Neb. 233, 846 N.W.2d 662 (2014).
4
Id.
5
Id.
6
State v. Beitel, 296 Neb. 781, 895 N.W.2d 710 (2017).
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committed by a current or former spouse, parent, or
guardian of the victim, . . . by a person who is cohabiting
with or has cohabited with the victim as a spouse, parent,
or guardian, or by a person similarly situated to a spouse,
parent, or guardian of the victim.
[6] In Hayes, the U.S. Supreme Court simplified this
definition and determined that the most sensible reading of
§ 921(a)(33)(A) defines the term “misdemeanor crime of
domestic violence” as a misdemeanor offense that “(1) ‘has,
as an element, the use [of force],’ and (2) is committed by
a person who has a specified domestic relationship with the
victim.” 7 The Court emphasized that such definition does not
require the specified domestic relationship to be an element of
the predicate-offense statute. 8
In United States v. Castleman, 9 the U.S. Supreme Court
articulated the definition of the phrase “use of physical force”
for purposes of § 921(a)(33)(A). In Castleman, the appellant
pled guilty to “‘intentionally or knowingly caus[ing] bodily
injury’” to the mother of his child, in violation of Tennessee
state law. In a subsequent prosecution for being a prohib-
ited person in possession of a firearm, the appellant argued
his Tennessee conviction did not qualify as a “misdemeanor
crime of domestic violence” under § 922(g)(9), because it did
not have, as an element, the use of physical force. The U.S.
Supreme Court disagreed and held that the Tennessee statute
under which the appellant was convicted defined three types
of assault, one of which was “‘[i]ntentionally, knowingly or
recklessly caus[ing] bodily injury to another.’” 10 The Court
concluded that the appellant’s conviction qualified as a “‘mis-
demeanor crime of domestic violence’” because the appellant
7
Hayes, supra note 1, 555 U.S. at 426.
8
Id.
9
United States v. Castleman, 572 U.S. 157, 159, 134 S. Ct. 1405, 188 L.
Ed. 2d 426 (2014).
10
Id., 572 U.S. at 168 (quoting Tenn. Code Ann. § 39-13-101 (2006)).
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pleaded guilty to having “‘intentionally or knowingly cause[d]
bodily injury’” to the mother of his child and because the
knowing or intentional causation of bodily injury necessarily
involves the use of force. 11
Then, in Voisine v. United States, 12 the U.S. Supreme Court
extended the definition of the phrase “misdemeanor crime of
domestic violence” to include misdemeanor assault statutes
covering reckless conduct. In doing so, the Voisine Court held
that a statute which prohibits the reckless causing of bodily
injury also has, as an element, the use of physical force.
As such, in determining whether an applicant is prohibited
from possessing a firearm, a court must consider whether the
predicate conviction involved the use of force and whether the
offender and the victim were involved in a domestic relation-
ship. In making these determinations, a court is limited as to
what evidence can be considered.
Approaches
Federal courts have outlined three separate approaches a
court may employ in determining if a prior conviction qualifies
as a predicate offense to trigger a federal consequence. First,
the U.S. Supreme Court has developed and refined a method-
ology referred to as the “categorical approach” to determine
whether a person’s prior state conviction qualifies as a generic
federal offense described in the relevant statute. 13
Under the categorical approach, a court must determine only
whether the defendant was convicted under a criminal statute
11
Id., 572 U.S. at 169.
12
Voisine v. United States, 579 U.S. 686, 136 S. Ct. 2272, 195 L. Ed. 2d 736
(2016).
13
See, Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S. Ct. 815, 166
L. Ed. 2d 683 (2007) (considering generic federal offenses for purposes
of immigration law); Taylor v. United States, 495 U.S. 575, 110 S. Ct.
2143, 109 L. Ed. 2d 607 (1990) (considering generic federal offenses for
purposes of Armed Career Criminal Act of 1984). See, also, Orellana v.
Mayorkas, 6 F.4th 1034 (9th Cir. 2021).
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that categorically matches the generic federal offense, without
considering the particular facts underlying the defendant’s con-
viction. 14 In doing so, the court considers only the statutory
language of the criminal statute of conviction and the generic
federal offense, and may not consider any evidence relating to
the defendant’s conduct. 15
[7] However, for the limited purpose of “help[ing to] imple-
ment the categorical approach,” the U.S. Supreme Court has
recognized a narrow range of cases in which courts may apply
a different approach: the modified categorical approach. 16
Courts may use the modified categorical approach only where
the criminal statute of conviction is divisible. 17 A divisible
statute is a statute that sets out one or more elements of the
offense in the alternative. 18
Under this approach, a court must determine “‘which of
the [alternative] statutory offenses . . . formed the basis of
the defendant’s conviction.’” 19 To make this determination,
a court may look to only a narrow category of documents,
colloquially known as Shepard documents, 20 such as “‘the
indictment or information and jury instructions or, if a guilty
plea is at issue, . . . the plea agreement, plea colloquy or some
comparable judicial record of the factual basis for the plea.’” 21
However, a court may not look at other evidence, such as
14
Orellana, supra note 13 (citing Taylor, supra note 13).
15
Id.
16
Descamps v. United States, 570 U.S. 254, 263, 133 S. Ct. 2276, 186 L. Ed.
2d 438 (2013).
17
Id.
18
Descamps, supra note 16.
19
Orellana, supra note 13, 6 F.4th at 1039 (quoting Descamps, supra note
16).
20
Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205
(2005).
21
Orellana, supra note 13, 6 F.4th at 1040 (quoting Nijhawan v. Holder, 557
U.S. 29, 129 S. Ct. 2294, 174 L. Ed. 2d 22 (2009)).
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police reports or victim statements, to determine what crime
the defendant actually committed, because such review would
amount to a collateral trial and raise concerns pertaining to the
Sixth Amendment to the U.S. Constitution. 22
[8] More recently, in Nijhawan v. Holder, 23 the U.S.
Supreme court recognized a third approach: the “‘circum-
stance-specific’” approach. Such approach applies where the
underlying statute refers to specific circumstances, rather than
to generic crimes. This approach allows a court to look beyond
the elements of the prior offense and consider the “facts and
circumstances underlying an offender’s conviction.” 24 One
indication that a statute refers to specific circumstances rather
than to generic crimes is statutory language focusing on
“the conduct involved ‘in’” rather than “the elements of ” an
offense. 25 For example, the Nijhawan Court stated that the
Immigration and Nationality Act provides for the deporta-
tion of any alien convicted of an aggravated felony. Under
this act, the definition of “‘aggravated felony’” includes “‘an
offense that . . . involves fraud or deceit in which the loss
to the victim or victims exceeds $10,000.’” 26 In Nijhawan,
the U.S. Supreme Court determined that this particular pro-
vision in the Immigration and Nationality Act invoked the
circumstance-specific approach because the words “in which”
could refer to “the conduct involved ‘in’ the commission
of the offense of conviction, rather than to the elements of
the offense.” 27
A statute may also present a hybrid situation in which one
section of the statute is governed by one approach, while
22
See Orellana, supra note 13 (citing Shepard, supra note 20).
23
Nijhawan, supra note 21, 557 U.S. at 34.
24
Id. Accord U.S. v. White, 782 F.3d 1118 (10th Cir. 2015).
25
Nijhawan, supra note 21, 557 U.S. at 39. See, also, Bogle v. Garland, 21
F.4th 637 (9th Cir. 2021).
26
Nijhawan, supra note 21, 557 U.S. at 32.
27
Id., 557 U.S. at 39 (emphasis omitted).
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another is subject to a different approach. For example,
although not expressly stated, it appears that the Hayes Court
employed a hybrid approach by applying the circumstance-spe-
cific approach to the specific domestic relationship requirement
and the categorical approach to the “use of physical force”
requirement. 28
Further, in U.S. v. Doss, 29 the Ninth Circuit analyzed 18
U.S.C. § 3559(e)(1) (2018), which delineates federal sentenc-
ing guidelines for repeat sex offenders and provides for a man-
datory minimum life sentence for certain federal sex offenses
if the defendant has a “prior sex conviction in which a minor
was the victim.” Relying on the U.S. Supreme Court’s rea-
soning in Nijhawan, the Doss court concluded that § 3559(e)
presents a hybrid situation because while the phrase “a prior
sex offense conviction” requires application of the categorical
approach, the phrase “in which a minor was the victim” calls
for application of the circumstance-specific approach.
Thus, like § 3559(e), § 921(a)(33)(A)(ii) also implicates
the hybrid approach employed in Hayes and Doss. Here, as
mentioned earlier, § 921(a)(3)(A)(ii) can be broken into two
parts. One provision requires that the predicate offense be
committed by a current or former spouse, parent, or guard-
ian of the victim, by a person with whom the victim shares a
child in common, by a person who is cohabiting with or has
cohabited with the victim as a spouse, parent, or guardian, or
by a person similarly situated to a spouse, parent, or guardian
of the victim. Federal circuit courts generally agree that Hayes
can be construed as using a circumstance-specific approach to
28
See United States v. Hayes, supra note 1. See, also, U.S. v. Price, 777
F.3d 700 (4th Cir. 2015) (stating that Hayes Court reasoned that legislative
history supported use of factual analysis on specific issue of domestic
relationship); U.S. v. Gonzalez-Medina, 757 F.3d 425 (5th Cir. 2014)
(characterizing Hayes as holding that domestic relationship requirement
need not be element of predicate statute of conviction and could be
determined under circumstance-specific approach).
29
U.S. v. Doss, 630 F.3d 1181 (9th Cir. 2011).
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determine the existence of the specified domestic relationship
as required by § 921(a)(33)(A)(ii). In reaching these conclu-
sions, federal circuit courts considered the statutory language
(“committed by”), the broad Congressional purpose of the
law, and the fact that only one-third of states had criminal
statutes that specifically proscribed domestic violence when
the provision was enacted. 30
By contrast, the other provision in § 921(a)(3)(A)(ii) requires
that the predicate offense has, as an element, “the use or
attempted use of physical force.” Although the Hayes court
employed the categorical approach to the second provision,
such approach is not appropriate here, because § 28-310(1) is
a divisible statute.
Under § 28-310(1), a person commits third degree assault
under two enumerated alternatives: “(a) Intentionally, know-
ingly, or recklessly causes bodily injury to another person;
or (b) [t]hreatens another in a menacing manner.” Because
§ 28-310(1) sets out one or more elements of the offense in the
alternative, the statute is a divisible statute. Though a convic-
tion secured under alternative (a) may trigger the prohibition
on firearms under federal law, a conviction under alternative
(b) will not.
As such, when considering an appeal from the denial of
an application for a handgun certificate, Nebraska courts
should employ the circumstance-specific approach to the
specified domestic relationship requirement, but employ the
modified categorical approach to the “use of physical force”
requirement.
Application
In this matter, Scalise’s primary argument is that his third
degree assault conviction under § 28-310 does not qualify as a
misdemeanor crime of domestic violence because he was not
convicted of domestic assault under Neb. Rev. Stat. § 28-323
30
Gonzalez-Medina, supra note 28 (citing Hayes, supra note 1).
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(Reissue 2016) and because the sentencing court did not make
a finding of a domestic relationship.
In making this argument, Scalise fails to appreciate that
§ 921(a)(33)(A)(ii)’s definition of the phrase “misdemeanor
crime of domestic violence” does not require that the predicate
conviction be one of domestic assault or domestic violence.
Rather, the federal statute simply requires that the predicate
conviction have, as an element, the use of physical force and
be committed by a person who has a specified domestic rela-
tionship with the victim. 31 As such, a conviction under either
§ 28-310 or § 28-323 can satisfy the definition of a misde-
meanor crime of domestic violence depending on the circum-
stances of the offense. Further, to the extent Scalise argues that
§ 28-310 does not have a domestic relationship element, such
argument is negated by the fact that the circumstance-specific
approach, applicable to the domestic relationship requirement
of § 921(a)(33)(A)(ii), allows us to look beyond the elements
of § 28-310.
Specifically, the circumstance-specific approach allows this
court to go beyond the limited universe of Shepard docu-
ments 32 and to the facts and circumstances underlying Scalise’s
conviction for third degree assault. 33 Contrary to Scalise’s
claim that the evidence does not establish a domestic relation-
ship between himself and the victim, the police department’s
incident report, as well as the victim/witness statement, estab-
lishes that Scalise and the victim were in a dating relationship
for approximately 5 years, which included cohabitation for a
period of time.
Additionally, Scalise’s reliance on the definition of “intimate
partner” in § 28-323(8) to support his argument is misplaced
and erroneous. Section 28-323(8) states:
31
See Hayes, supra note 1.
32
Shepard, supra note 20.
33
See Lindo v. Secretary, U.S. Department of Homeland Security, 766 Fed.
Appx. 897 (11th Cir. 2019). See, also, Nijhawan, supra note 21.
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For purposes of this section, intimate partner means
a spouse; a former spouse; persons who have a child
in common whether or not they have been married or
lived together at any time; and persons who are or were
involved in a dating relationship. For purposes of this
subsection, dating relationship means frequent, intimate
associations primarily characterized by the expectation of
affectional or sexual involvement, but does not include
a casual relationship or an ordinary association between
persons in a business or social context.
(Emphasis supplied.) It is clear that § 28-323(8)’s definition
of “intimate partner” is for purposes of that particular statute
and has no bearing on our analysis under § 921(a)(33)(A)(ii).
Thus, the district court properly found that Scalise’s conviction
satisfies the domestic relationship requirement of § 921(a)(33).
This assignment of error is without merit.
In regard to the “use of physical force” requirement, Scalise
assigns that the “trial court failed to determine if [his] simple
assault conviction contained the necessary elements of know-
ingly or recklessly causing bodily injury.” However, in his
brief, he makes no arguments regarding this assigned error.
Instead, he focuses on the alleged errors as to his relation-
ship with the victim. In order to be considered by an appellate
court, an alleged error must be both specifically assigned and
specifically argued in the brief of the party asserting the error. 34
Accordingly, we will not address this argument.
Notice Requirement
Scalise further contends that the county court failed to give
him notice that his conviction could prevent him from pos-
sessing a handgun in the future as required by Neb. Rev. Stat.
§ 29-2291(1) (Reissue 2016). Section 29-2291(1) provides:
When sentencing a person convicted of a misdemeanor
crime of domestic violence as defined in 18 U.S.C.
34
Humphrey v. Smith, 311 Neb. 632, 974 N.W.2d 293 (2022).
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921(a)(33), as such section existed on July 18, 2008,
the court shall provide written or oral notification to the
defendant that it may be a violation of federal law for the
individual: To ship or transport in interstate or foreign
commerce, or possess in or affecting commerce, any fire-
arm or ammunition; or to receive any firearm or ammuni-
tion which has been shipped or transported in interstate or
foreign commerce.
The record before us clearly shows that the court gave
Scalise the requisite advisement pursuant to § 29-2291. As
such, this assignment of error is meritless.
Remaining Assignments of Error
Lastly, as previously mentioned, Scalise assigned as error
a number of constitutional arguments concerning the Second
Amendment, double jeopardy, and due process. We decline
to address these assignments of error because neither the
county court nor the district court addressed Scalise’s constitu-
tional claims. A constitutional issue not presented to or passed
upon by the trial court is not appropriate for consideration
on appeal. 35
CONCLUSION
For the foregoing reasons, the district court did not err
in affirming the county court’s denial of Scalise’s handgun
appeal.
Affirmed.
35
State v. Boche, 294 Neb. 912, 885 N.W.2d 523 (2016).
Stacy, J., concurring.
The majority opinion provides much‑needed guidance on the
requirement in Neb. Rev. Stat. § 69‑2404 (Reissue 2016) that
applicants who are “prohibited from purchasing or possess-
ing a handgun by 18 U.S.C. 922” shall not receive a handgun
certificate. I agree in all respects with the majority’s analysis
and disposition, but write separately to highlight some of the
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procedural questions that remain unanswered in appeals from
the denial of handgun certificates.
This appeal is authorized by Neb. Rev. Stat. § 69‑2406
(Reissue 2016), which provides, in full:
Any person who is denied a certificate, whose certifi-
cate is revoked, or who has not been issued a certificate
upon expiration of the three‑day period may appeal
within ten days of receipt of the denial or revocation to
the county court of the county of the applicant’s place
of residence. The applicant shall file with the court the
specific reasons for the denial or revocation by the chief
of police or sheriff and a filing fee of ten dollars in
lieu of any other filing fee required by law. The court
shall issue its decision within thirty days of the filing of
the appeal.
Although this statute affords individuals the right to appeal to
the county court from the denial or revocation of a handgun
certificate, it is largely silent on the procedure for such an
appeal. Who are the parties of record in such an appeal? Must
the chief of police or sheriff be served with a notice of the
appeal? What does the appellate record consist of and who has
the responsibility to prepare it? Is it appropriate to hold an evi-
dentiary hearing before the county court? Is the decision of the
chief of police or sheriff reviewed by the county court de novo,
reviewed for errors appearing on the record, or reviewed for an
abuse of discretion? What relief is the county court authorized
to order? 1 These procedural questions are not addressed in
§ 69‑2406, and they are not adequately addressed in any other
statute setting out default appeal procedures.
Neb. Rev. Stat. § 25‑1937 (Reissue 2016) addresses the
default procedure for appeals “[w]hen the Legislature enacts
1
Compare Neb. Rev. Stat. § 84‑917 (Reissue 2016) (providing that in
appeals under Administrative Procedure Act district court “may affirm,
reverse, or modify the decision of the agency or remand the case for
further proceedings”).
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a law providing for an appeal without providing the procedure
therefor . . . .” It provides that “the procedure for appeal to the
district court shall be the same as for appeals from the county
court to the district court in civil actions” and states that in
such appeals, “[t]rial in the district court shall be de novo upon
the issues made up by the pleadings in the district court.” 2
But § 25‑1937 does not describe the appellate procedure or
standard of review for appeals that are to be initiated in county
court, as set forth in § 69‑2406.
Neb. Rev. Stat. § 25‑2701 (Reissue 2016) provides a proce-
dure for county courts to follow when no other specific proce-
dure has been enumerated by the Legislature. It provides:
All provisions in the codes of . . . civil procedure govern-
ing actions and proceedings in the district court not in
conflict with statutes specifically governing procedure in
county courts and related to matters for which no specific
provisions have been made for county courts shall govern
and apply to all actions and proceedings in the county
court. 3
While helpful, § 25‑2701 does not fill the procedural void
created by § 69‑2406. This is so because the statutory proce-
dures for appeals before the district court either conflict with
the limited statutory procedures announced in § 69‑2406 4 or
do not fit the statutory scheme described by § 69‑2406, under
2
§ 25‑1937.
3
§ 25‑2701.
4
Compare § 69‑2406 (providing that applicant has 10 days to appeal from
decision or revocation and must “file with the court the specific reasons
for the denial or revocation,” as well as pay filing fee of $10) with Neb.
Rev. Stat. § 25‑2729 (Cum. Supp. 2020) (providing that appealing party
has 30 days after entry of county court judgment or final order to file
notice of appeal with clerk of county court and deposit docket fee), Neb.
Rev. Stat. § 25‑2733 (Reissue 2016) (providing that “the district court
shall review the case for error appearing on the record made in the county
court”), and § 25‑1937 (providing that “[t]rial in the district court shall be
de novo upon the issues made up by the pleadings in the district court”)
(emphasis supplied).
- 534 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCALISE V. DAVIS
Cite as 312 Neb. 518
which there is no judgment or final order from which to appeal.
Under the existing provisions of § 69‑2406, it is not even clear
whether the county court has a record to review beyond the
applicant’s description of the “specific reasons for the denial or
revocation by the chief of police or sheriff.” 5
Section 69‑2406 was intended to give applicants an expe-
dited appeal process when a handgun certificate is denied or
revoked by the chief of police or the sheriff. But until the
Legislature establishes a clear statutory procedure to govern
such appeals, there will be continued uncertainty and a lack of
uniformity in how these appeals are processed and resolved in
the county courts.
Cassel, J., joins in this concurrence.
5
See § 69‑2406. But, see, 272 Neb. Admin. Code, ch. 22, § 006.03 (2022)
(“[t]he agency to which an application was made will preserve evidence
of the reason(s) for denial or revocation for at least 30 days, should the
applicant appeal the denial or revocation”). Cf. Neb. Rev. Stat. § 69‑2414
(prescribing procedure for applicants denied right to purchase or receive
handgun to petition Nebraska State Patrol requesting “amendment of the
record pertaining to him or her”). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8494097/ | ORDER DENYING MOTION FOR DEFAULT JUDGMENT AND DISMISSING COMPLAINT
A. BRUCE CAMPBELL, Bankruptcy Judge.
This matter is before the Court on Plaintiffs Motion for Default Judgment (“Motion”) and the Supplemental Affidavit submitted by Plaintiff in support of its Motion. The determination of whether to enter judgment by default is left to the *530discretion of the Court. Gomes v. Williams, 420 F.2d 1364, 1366 (10th Cir.1970).
Rule 55(b)(2)1 allows the Court discretion to require proof of necessary facts to support a valid cause of action, and if such facts are lacking, the Court can choose not to enter default judgment. Peerless Industries, Inc. v. Herrin Illinois Cafe, Inc., 593 F.Supp. 1339, 1341 (D.C.Mo.1984), aff'd without opinion 774 F.2d 1172 (8th Cir.1985). A motion for default judgment must be supported with sworn verification of the underlying factual elements of each claim upon which the movant seeks judgment. In the Order to Show Cause issued by the Court on September 28, 2006, the Court stated that it could not grant Plaintiffs Motion because Plaintiff had failed to verify any of the factual elements of its claim for non-dischargeability for actual fraud under 11 U.S.C. § 523(a)(2)(A) and because it had failed to verify all of the elements entitling it to a presumption of fraud under 11 U.S.C. § 523(a)(2)(C).
In response to the Order to Show Cause, Plaintiff filed its Supplemental Affidavit which purports to address only the elements of the § 523(a)(2)(C) claim.2 The Supplemental Affidavit reflects that the Debtor obtained two “cash advances” from Plaintiff within the sixty day period prior to the filing of his Chapter 7 petition. The Supplemental Affidavit also reflects that the entire amount of each advance was paid to the Plaintiff to pay off two separate loans which the Debtor had previously obtained from Plaintiff. The first advance, in the amount of $6,484.62, was used by the Debtor to pay off the entire balance of his Reserve Line of Credit with Plaintiff. The second advance, in the amount of $3,962.45, was used by the Debtor to pay off his EquiLine Line of Credit with Plaintiff.
In order to be entitled to the presumption of non-dischargeability under § 523(a)(2)(C), Plaintiff must show that the Debtor obtained cash advances aggregating more than $1,225 that were extensions of consumer credit under an open end credit plan, within 60 days before his bankruptcy case was filed.3 The presumption of non-dischargeability which results from proof of these elements is an expression of Congress’ intent to discourage debtors from “loading up” by going “on a credit buying spree in contemplation of bankruptcy.” S.Rep. No. 65, 98th Cong., 1st Sess. 58 (1985). The presumption has been narrowly construed in favor of a fresh start for debtors. Chase Manhattan Bank v. Poor (In re Poor), 219 B.R. 332, 336 (Bankr.D.Maine 1998). It has been held to be inapplicable to extensions of credit which are used to pay off previous debts. Such a transaction is more properly viewed as a “balance transfer” or a “refinancing,” despite the fact that it may have been denominated a “cash advance” *531by the creditor. See, In re Poor, 219 B.R. at 337; In re Smith, 54 B.R. 299, 310-302 (Bankr.S.D.Iowa 1985); In re Cameron, 219 B.R. 531, 536 (Bankr.W.D.Mo.1998); In re Ashland, 307 B.R. 317 (Bankr.D.Mass.2004).
In all of these cases, as here, there was no increase in the overall amount of the debtors’ liabilities. This fact pattern is far from the abuse of credit cards which Congress, had in mind when § 523(a)(2)(C) was added to the Bankruptcy Code. To apply a presumption of fraud in such a situation, especially where, as here, the objecting creditor has received every penny of the challenged extension of credit, would be a distortion of the legislative purpose behind the creation of the presumption. Therefore, the Court determines that the funds at issue in this case were not “cash advances” within the meaning of § 523(a)(2)(C) and Plaintiff may not rely on “presumptive fraud” to establish that its debt is nondischargeable.
The Supplemental Affidavit did not purport to address the elements of “actual fraud” under § 523(a)(2)(A). Per Field v. Mans, 516 U.S. 59, 116 S.Ct. 437, 133 L.Ed.2d 351 (1995), the elements of a claim for fraud under this section are based upon the Restatement (Second) of Torts § 525, which states:
One who fraudulently makes a misrepresentation of.. .intention.. .for the purpose of inducing another to act in reliance on it, is [liable] to the other in deceit for pecuniary loss caused to him by his justifiable reliance on the misrepresentation.
It is apparent from the facts set forth in the Supplemental Affidavit that Plaintiff cannot establish all of the elements of fraud under § 523(a)(2)(A). In particular, Plaintiff cannot establish that it suffered any pecuniary loss from the credit it extended to the Debtor in September, 2005, since all of the funds it advanced were immediately repaid to it.
The undisputed facts of this case, as shown in Plaintiffs own Supplemental Affidavit, establish that Plaintiff cannot prevail on either of the claims in its Amended Complaint. It is accordingly
ORDERED that Plaintiffs Motion for Default Judgment is DENIED; and it is
FURTHER ORDERED that Plaintiffs Amended Complaint is DISMISSED.
. Rule 55(b)(2) provides, in pertinent part:
"if, in order to enable the court to enter judgment or to carry it into effect, it is necessary to ... establish the truth of any averment by evidence or to make an investigation of any other matter, the court may ... order such references as it deems necessary and proper!.]”
. Plaintiff has never submitted verification of any of the factual elements underlying its claim for actual fraud under 11 U.S.C. § 523(a)(2)(A), despite having moved for a default judgment on two occasions and having filed three affidavits purporting to verify the elements of the claims upon which it seeks default judgment.
.This case was filed on October 12, 2005, prior to the effective date of the BAPCPA amendments to the Bankruptcy Code, and is governed by the version of § 523(a)(2)(C) that was then in effect. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8494098/ | MEMORANDUM ORDER DENYING TRUSTEE’S MOTION FOR SUMMARY JUDGMENT (C.P.# 75) AND GRANTING IN PART O’CONNOR & TAYLOR DEVELOPMENT CORP.’S MOTION FOR SUMMARY JUDGMENT (C.P.# 78)
PAUL G. HYMAN, Bankruptcy Judge.
THIS MATTER came before the Court on May 15, 2006 upon Plaintiff Michael R. Bakst’s, Trustee, (“Trustee”) Motion for Summary Judgment Against Defendant O’Connor & Taylor Development Corp., a Florida Corporation (“Motion”) [C.P. # 75], and on May 19, 2006 upon Defendant O’Connor & Taylor Development Corp.’s (“OTDC”) Motion for Summary Judgment (“Cross-Motion”) [C.P.# 78]. Pursuant to the Court’s briefing orders, on June 6, 2006 OTDC filed its Reply to Plaintiffs Motion for Summary Judgment Against Defendant O’Connor & Taylor Development Corp. (“Response to Motion”) [C.P.# 87] and on June 19, 2006 Trustee filed a Reply to Response of Defendant O’Connor & Taylor Development Corp., to Plaintiffs Motion for Summary Judgment (“Reply to Motion”)[C.P. # 94]. Also pursuant to the Court’s briefing orders, on June 12, 2006 Trustee filed a Response to Defendant O’Connor & Taylor Development Corp.’s Motion for Summary Judgment (“Response to Cross-Motion”) [C.P. # 92], and on June 22, 2006 OTDC filed its Reply to Plaintiffs Response to Defendant O’Connor & Taylor Development Corp.’s Motion for Summary Judgment (“Reply to Cross-Motion”)[C.P.# 106]. The parties filed a Joint Stipulation of Facts for Hearing on Trustee’s Motion for Summary Judgment and On Defendant O’Connor & Taylor Development Corp. ’s Motion for Summary Judgment (“Joint Stipulation”) [C.P. ## 96 & 104].
*548
BACKGROUND
On April 18, 2005, Joseph Thomas Vilsack (“Debtor” or “Vilsaek”) filed a joint petition for relief under Chapter 7 of the Bankruptcy Code with his wife, Deborah Lynn Loving. Vilsaek is a licensed real estate sales associate within the State of Florida. On September 14, 2001, Vilsaek signed an Independent Contractor Agreement with defendant TBM Associates, Inc. (“TBM”), pursuant to which Vilsaek agreed to provide services as a real estate sales associate for licensed real estate broker TBM. The Independent Contractor Agreement provided that TBM would pay Vilsaek 95% of commission fees collected by TBM for brokerage services performed by Vilsaek. Vilsaek remained a sales associate with TBM as his licensed broker until March 31, 2004.
On February 13, 2004 an agreement was entered into (“BAP Contract”) for the sale of approximately 6.64 acres of land located on the Intracoastal Waterway in Jupiter Florida (“Jupiter Property”). The closing date for the sale of the Jupiter Property was November 3, 2005. Pursuant to the BAP Contract, TBM received commissions in the amount of $112,500.00. Vilsaek was the sales associate for this transaction.
On December 11, 2003, prior to February 13, 2004 execution of the BAP contract, Vilsaek signed a letter agreement (“Letter Agreement”) with OTDC. The Letter Agreement memorialized the agreement between Frank O’Connor, Joseph Taylor, and Vilsaek to create “a formal business/real estate development relationship.” Among other things the Letter Agreement provided for Vilsaek to contribute to OTDC all of his earned fees including real estate and leasing commissions. OTDC however has never been registered with the Florida Real Estate Commission as a licensed real estate broker or real estate sales associate. Joseph Taylor, an officer and director of OTDC, is a licensed real estate broker, but he was registered as a sole proprietor at the time of the Letter Agreement. On March 31, 2004, Vilsaek became licensed as a real estate sales associate with Joseph Taylor as his licensed broker.
On October 31, 2005, the Trustee filed a Verified Complaint for Declaratory Relief for Injunctive Relief; and for Turnover, Pursuant to Federal Rule of Bankruptcy Procedure 7001(1), (7) and (9) against defendants OTDC and TBM seeking turnover of the commission due to Vilsaek for the sale of the Jupiter Property.
On December 7, 2005, TBM and the Trustee entered into a Stipulation to Compromise Controversy (“Stipulation”) [C.P.# 3]. The Stipulation provided for the Trustee to receive $79,375.00 from the commission for the sale of the Jupiter Property, while TBM retained $5,625.00 as its share of the commission and $27,500.00 as a set off. Although the Stipulation was noticed to OTDC, OTDC did not file an objection to the Stipulation. On January 13, 2006, the Court entered an Order Approving Stipulation to Compromise Controversy and Dismissing Adversary Proceeding as to TBM Associates, Inc. [C.P.# 39].
On February 13, 2006, the Trustee filed an Amended Verified Complaint for Declaratory Relief, for Injunctive Relief; and for Turnover, Pursuant to Federal Rule of Bankruptcy Procedure 7001(1), (7) and (9); or in the Alternative to Avoid and Recover Fraudulent Transfers Pursuant to § 726, Florida Statutes. As a result of the sale of the Jupiter Property and the Stipulation with TBM, the Trustee is currently holding $79,375.00 which represents the commission that would have been due to the Debtor for the sale of the Jupiter Property. Both the Trustee and OTDC claim to be entitled to this money. *549OTDC’s clam of entitlement stems from the Letter Agreement. The Trustee alleges that the Letter Agreement is unenforceable under Florida law because it purports to pay real estate commissions to OTDC who is not licensed as a broker or sales associate. Alternatively, the Trustee argues that the transfer to OTDC of the right to receive commissions earned by the Debtor is avoidable as a fraudulent transfer for less than reasonably equivalent value.
CONCLUSIONS OF LAW
The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1334. This is a core proceeding under 28 U.S.C. § 157(b)(2)(A),(E) and (0).
I. Summary Judgment
Federal Rule of Civil Procedure 56(c), made applicable to bankruptcy proceedings by Federal Rule of Bankruptcy Procedure 7056(c), provides that “[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Rice v. Branigar Org., Inc., 922 F.2d 788 (11th Cir.1991); Rollins v. TechSouth, Inc., 833 F.2d 1525 (11th Cir.1987); In re Pierre, 198 B.R. 389 (Bankr.S.D.Fla.1996). Rule 56 is based upon the principle that if the court is made aware of the absence of genuine issues of material fact, the court should, upon motion, promptly adjudicate the legal questions which remain and terminate the case, thus avoiding the delay and expense associated with a trial. See United States v. Feinstein, 717 F.Supp. 1552 (S.D.Fla.1989).
In considering a motion for summary judgment, “the court’s responsibility is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party.” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987) (citing Anderson, 477 U.S. at 248, 106 S.Ct. 2505). “Summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy, and inexpensive determination of every action.’ ” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (citing Fed R. Civ. P. 1). “Summary judgment is appropriate when, after drawing all reasonable inference in favor of the party against whom summary judgment is sought, no reasonable trier of fact could find in favor of the non-moving party.” Murray v. National Broad. Co., 844 F.2d 988, 992 (2d Cir.1988).
The Court finds that disputed issues of material fact exist with respect to the transfer in this matter. Therefore, entitlement to the commission funds cannot be determined on motions for summary judgment.
II. The Letter Agreement Does Not Violate Fla. Stat. § 475 et. seq.
Trustee’s Motion argues that the Letter Agreement is unenforceable as a matter of Florida law because it purports to transfer real estate commissions earned by the Debtor to OTDC who is neither a licensed real estate broker nor a licensed real estate sales associate. Defendant *550OTDC’s Cross-Motion argues that the Letter Agreement is a valid assignment of Vilsack’s interest in proceeds from real estate commissions, not a contract for real estate commissions in exchange for brokerage services, and as such it does not violate Florida law.
The Letter Agreement provides in part: Based on our recent discussions regarding the creation of a formal business/real estate development relationship, the following is my understanding of the essential points of our agreement.
That Joe Vilsack, Frank O’Connor, and Joe Taylor desire to enter into a long-term business relationship that begins with Joe Vilsack as an outside contractor to [OTDC] and a partner in future business ventures where Joe Vilsack makes a material contribution. The various parties will individually negotiate each future business deal based on their contribution to the venture.
The Letter Agreement further provides for Vilsack to be compensated $4,000.00 per month as a consultant fee in exchange for development services, and to be provided a lease vehicle, reasonable office space and reasonable office support, for the initial (4) four month term of the agreement or the end of April, 2004. At the end of the initial four month term of the Letter Agreement, the parties were to re-evaluate the potential of the relationship and determine whether to proceed, alter or terminate the agreement.
The Letter Agreement also provides:
It is agreed, from the date of this agreement, that Joe Vilsack will contribute all earned fees to OTDC including; real estate and leasing commissions, consulting fees, fees for due diligence efforts, fees for feasibility studies, finder fees and commissions for the sourcing of funds to finance projects and other business income generated during the term of this Agreement.
It is Trustee’s position that this provision violates Florida Statutes § 475 et seq., thereby rendering the Letter Agreement unenforceable as a matter of law.
Fla. Stat. § 475.41 entitled, Contracts of unlicensed person for commissions invalid, states:
No contract for a commission or compensation for any act or service enumerated in § 475.01(3) is valid unless the broker or sales associate has complied with this chapter in regard to issuance and renewal of the license at the time the act or service was performed.
The Trustee argues that a plain reading of the statute determines that the Letter Agreement is invalid as a matter or law because OTDC is not, and has never been, a licensed broker or sales associate. OTDC relies upon Newcomer v. Rizzo, 163 So.2d 312 (Fla.3d DCA 1964) to argue that the Letter Agreement is a valid assignment of Vilsack’s interest in proceeds from a real estate commission earned by Vilsack and as such it does not violate Fla. Stat. § 475.41. For purposes of this matter, the Court must determine only whether the Letter Agreement violates Fla. Stat. § 475.41. The Court does not reach the issue of whether the Letter Agreement provides for a “valid” assignment of Vilsack’s interest in a real estate commission because it is irrelevant to the issue of whether the Letter Agreement violates Fla. Stat. § 475.41. In addition, the Court declines to comment on the “validity” of the assignment because that question impinges on the issue of whether the transfer was constructively fraudulent for less than reasonably equivalent value. For the reasons stated below, the Court finds that the Letter Agreement does not violate Fla. Stat. § 475.41.1
*551The BAP Contract for the sale of the Jupiter Property provided for payment of real estate commissions to TBM, a licensed broker. The Independent Contractor Agreement between Vilsack as a sales associate and TBM as his broker, provided for Vilsack to receive 95% of any fees as a commission for the performance by Vilsack of brokerage services for TBM. Since TBM and Vilsack were licensed in accordance with Florida law, the payment of a real estate commission pursuant to the BAP Contract and the Independent Con-' tractor Agreement does not violate Fla. Stat. § 475.41.
Unlike the BAP Contract and the Independent Contractor Agreement, the Letter Agreement is not a contract for payment of real estate commissions for services or acts enumerated in Fla. Stat. 475.01(3). The Letter Agreement purports to create a long term formal business/real estate development relationship. The Letter Agreement requires Vilsack to contribute real estate and leasing commissions as well as other types of business income, but it does not require OTDC to perform any of the services enumerated in section 475.01(3) in return for the contribution of Vilsack’s commission and other income. It is therefore immaterial that OTDC is unlicensed because the Letter Agreement is not a contract of the kind prohibited by Fla. Stat. § 475.41.
*552Since the Letter Agreement does not call for the performance of brokerage type services by OTDC, the case law relied upon by the Trustee is readily distinguished from the facts of this matter. In almost every case cited by the Trustee, the disputed contract was unenforceable because the unlicensed person sought to collect commissions for performance of the type of services enumerated in Fla. Stat. § 475.01(3). See Global Resorts, Inc., v. Famille, Inc., 478 So.2d 1179 (Fla.2d DCA 1985) (affirming lower court’s ruling that alleged oral contract for payment to unlicensed plaintiff for soliciting prospective buyers of time share units was unenforceable pursuant to Fla. Stat. § 475.41); Hanks v. Hamilton, 339 So.2d 1122 (Fla.4th DCA 1976) (affirming lower court ruling that written contract providing for payment, to an unlicensed person for services rendered, of a portion of commissions received by a broker in connection with the purchase and sale of real property violated Fla. Stat. § 475.41); Bradley v. Banks, 260 So.2d 256 (Fla.3d DCA 1972) (affirming lower court ruling that contract to pay a portion of commission to unlicensed person who secured property listing was void); Tobin v. Courshon, 155 So.2d 785 (Fla.1963) (determining that attorneys who were not licensed brokers could not share in brokerage commission paid to registered broker as compensation for cooperating with him in having effected the sale or real property); Meadows of Beautiful Bronson, Inc., v. E.G.L. Investment Corp., 353 So.2d 199, 200 (Fla.3d DCA 1978) (“Thus, the agreement required by its terms, the rendition of real estate brokerage services in Florida by appellees with others who were neither licensed nor registered real estate brokers or salesmen in Florida. Such a contract is, as a matter of public policy, void and unenforceable.”); In re Captran Creditors Trust, 94 B.R. 769 (Bankr.M.D.Fla.1988) (disallowing creditor’s claim for commissions for selling time-share units where creditor was never licensed as a real estate broker); First Equity Corp. of Fla., v. Riverside Real Estate Investment Trust, 307 So.2d 866 (Fla.3d DCA 1975) (affirming lower court ruling denying compensation to unlicensed broker corporation for performance of services in procuring lessee of real property).
The Trustee also cites Campbell v. Romfh Bros. Inc., 132 So.2d 466 (Fla.2d DCA 1961) in support of his position that an assignment of the right to receive commissions violates Florida law. The Campbell court determined that the attempted collection of a note made payable to both a licensed broker and a licensed salesman as co-payees for commissions for services rendered in connection with the sale of real property violated Fla. Stat. § 475.42(l)(d). Section 475.42(l)(d) prohibits an action to enforce a contract between a salesman and a client because only a broker can sue a client. The Campbell court determined that the subsequent assignment of the note by the salesman to his broker, without consideration, did not cure the initial illegality of the note. Unlike the note in Campbell, the BAP contract in this case does not violate Fla. Stat. §§ 475.42(l)(d) because the real estate commission at issue was paid to TBM who was a licensed broker under the BAP Contract. Furthermore unlike Campbell or the BAP Contract and the Independent Contractor Agreement in this case, the Letter Agreement is not a contract for payment of real estate commissions to OTDC, an unlicensed person, for services enumerated in § 475.01(3). Therefore the Court concludes that the Letter Agreement does not violate Fla. Stat. § 475.41.
III. Disputed Issues of Material Fact Exist Regarding the Alleged Fraudulent Transfer
Trustee alternatively argues that if the Court determines that the Letter Agree*553ment is enforceable, the transfer of the right to receive the commission from the sale of the Jupiter Property is fraudulent and should be avoided pursuant to 11 U.S.C. § 544 and Fla. Stat. § 726.105(l)(b) and 726.106(1).
“Under [11 U.S.C.] § 544, the Trustee may bring an action to avoid any transfer of an interest of the debtor in property which is ‘voidable by any actual unsecured creditor under state law.’ ” In re Seaway Int’l Transport, Inc. 341 B.R. 333, 334 (Bankr.S.D.Fla.2006) (citations omitted). “Consequently, the Trustee may utilize the state fraudulent conveyance statutes, which have a four-year statute of limitations.” Id. In this matter, the Trustee seeks to avoid the transfer under Florida’s constructive fraud statutes, sections 726.105(l)(b) and 726.106(1)
Fla Stat. § 726.105(l)(b) titled “Transfers fraudulent as to present and future creditors” states in pertinent part:
A transfer made or obligation incurred by a debtor is fraudulent as to a creditor, whether the creditor’s claim arose before or after the transfer was made or the obligation was incurred, if the debtor made the transfer or incurred the obligation:
íH $ & ❖ sfc #
(b) Without receiving a reasonably equivalent value in exchange for the transfer or obligation, and the debtor:
1. Was engaged or was about to engage in a business or a transaction for which the remaining assets of the debtor were unreasonably small in relation to the business or transaction; or
2. Intended to incur, or believed or reasonably should have believed that he or she would incur, debts beyond his or her ability to pay as they became due.
Fla Stat. § 726.106(1) titled “Transfers fraudulent as to present creditors” states in pertinent part:
A transfer made or obligation incurred by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made or the obligation was incurred if the debtor made the transfer or incurred the obligation without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation.
“These sections provide that a transfer may be fraudulent if the debtor made the transfer ‘[without receiving a reasonably equivalent value in exchange for the transfer.’ ” Profilet v. Cambridge Financial Corp., 231 B.R. 373, 382 (S.D.Fla.1999). However the statutes do not define “reasonably equivalent value.” In determining whether reasonably equivalent value was received in exchange for a transfer of property, courts consider many factors including the “good faith of the parties, the disparity between the fair value of the property and what the debtor actually received, and whether the transaction was at arm’s length.” Kapila v. WLN Family Ltd. Partnership (In re Leneve), 341 B.R. 53, 57 (citations omitted). “[I]n determining whether the debtor received reasonably equivalent value, the essential examination is a comparison of ‘what went out’ with ‘what was received’ ”. Id.
In this matter, the Trustee maintains that the Letter Agreement was in the nature of an employment agreement in which the Debtor was compensated $4,000 per month and provided with a leased vehicle, office space and office support in exchange for Debtor providing “development services.” It is the Trustee’s position that the transfer to OTDC of the right *554to receive real estate commissions earned by the Debtor was made without the Debt- or receiving reasonably equivalent value in exchange for the transfer. OTDC argues that the Debtor did indeed receive reasonably equivalent value given that the Letter Agreement was executed before there was a sales contract for the Jupiter Property and twenty-three months before that transaction closed. OTDC maintains that at the time the Letter Agreement was signed, the value of the Debtor’s interest in future real estate commissions was speculative at best. OTDC argues further that the transfer was intended to be, and was, a contemporaneous exchange for present value pursuant to Fla. Stat. § 726.104(3).
While the Court finds that the Letter Agreement does not violate Fla. Stat. § 475.41, the presence of disputed issues of material fact prevent the Court from determining in the context of summary judgment motions, whether the transfer of the right to receive real estate commissions by virtue of the Letter Agreement is a fraudulent transfer for less the reasonably equivalent value. A trial is therefore required for resolution of the disputed factual issues.
CONCLUSION
The Court finds that the Letter Agreement is not a contract for the payment of commissions to an unlicensed person for services of the type enumerated in Fla. Stat. § 475.01(3). Therefore the Letter Agreement is not invalid pursuant to Fla. Stat. § 475.41. The existence of disputed issues of material fact preclude entry of summary judgment for either side on the issue of whether the Trustee may avoid the allegedly fraudulent transfer of the right to receive commissions.
ORDER
The Court, having reviewed the submissions of the parties, the applicable law and being otherwise fully advised in the premises, hereby
ORDERS AND ADJUDGES that:
1. The Letter Agreement does not violate Florida Statutes § 475.41.
2. Trustee’s Motion for Summary Judgment is DENIED.
3. OTDC’S Cross-Motion for Summary Judgment is GRANTED IN PART insofar as the Court finds that the Letter Agreement does not violate Florida Statutes § 475.41, all other relief requested in OTDC’s Cross-Motion is DENIED.
. Florida Statutes § 475.41 references § 475.01(3) which in turn references the defi*551nition of "broker” found in § 475.01(l)(a).
Fla. Stat. 475.01(3) states:
Wherever the word “operate” or "operating” as a broker, broker associate, or sales associate appears in this chapter; in any order, rule, or regulation of the commission; in any pleading, indictment, or information under this chapter; in any court action or proceeding; or in any order or judgment of a court, it shall be deemed to mean the commission of one or more acts described in this chapter as constituting or defining a broker, broker associate, or sales associate, not including, however, any of the exceptions stated therein. A single such act is sufficient to bring a person within the meaning of this chapter, and each act, if prohibited herein, constitutes a separate offense.
Fla. Stat.475.01(l)(a) provides the definition of "broker”: "Broker” means a person who, for another, and for a compensation or valuable consideration directly or indirectly paid or promised, expressly or impliedly, or with an intent to collect or receive a compensation or valuable consideration therefor, appraises, auctions, sells, exchanges, buys, rents, or offers, attempts or agrees to appraise, auction, or negotiate the sale, exchange, purchase, or rental of business enterprises or business opportunities or any real property or any interest in or concerning the same, including mineral rights or leases, or who advertises or holds out to the public by any oral or printed solicitation or representation that she or he is engaged in the business of appraising, auctioning, buying, selling, exchanging, leasing, or renting business enterprises or business opportunities or real property of others or interests therein, including mineral rights, or who takes any part in the procuring of sellers, purchasers, lessors, or lessees of business enterprises or business opportunities or the real property of another, or leases, or interest therein, including mineral rights, or who directs or assists in the procuring of prospects or in the negotiation or closing of any transaction which does, or is calculated to, result in a sale, exchange, or leasing thereof, and who receives, expects, or is promised any compensation or valuable consideration, directly or indirectly therefor; and all persons who advertise rental property information or lists. A broker renders a professional service and is a professional within the meaning of s. 95.11(4)(a). Where the term "appraise” or "appraising” appears in the definition of the term "broker,” it specifically excludes those appraisal services which must be performed only by a state-licensed or state-certified appraiser, and those appraisal services which may be performed by a registered trainee appraiser as defined in part II. The term "broker” also includes any person who is a general partner, officer, or director of a partnership or corporation which acts as a broker. The term "broker” also includes any person or entity who undertakes to list or sell one or more timeshare periods per year in one or more timeshare plans on behalf of any number of persons, except as provided in ss. 475.011 and 721.20. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8494100/ | MEMORANDUM OF OPINION
ALLAN L. GROPPER, Bankruptcy Judge.
On February 2, 2005, Tower Automotive, Inc. and twenty-five of its subsidiaries and affiliates filed petitions under Chapter'll of the Bankruptcy Code. One of the filing entities was R.J. Tower Corporation (“RJ Tower”), a holding company that owns the stock of some or all of the group’s foreign subsidiaries and that is in turn owned by Tower Automotive, Inc. Some of the foreign subsidiaries filed under Chapter 11, but others did not.
On February 22, 2006, one of the foreign subsidiaries that did not file, Tower Automotive Mexico S. de R.L. de C.V. (“Tower Mexico”), commenced in this Court an adversary proceeding against Group Proeza, S.A. de C.V. (“Proeza”). The complaint alleges that Tower Mexico and Proeza are parties to a Joint Venture Agreement providing for the formation of a manufacturing operation in Mexico and containing a broad agreement to arbitrate disputes in Paris in accordance with the rules of the International Chamber of Commerce. The complaint further alleges that Proeza has attempted to subvert its agreement to arbitrate by commencing litigation in the Mexican courts in reliance on a provision in a Shareholders’ Agreement, also between Tower Mexico and Proeza, providing that disputes between the shareholders relating to the by-laws shall be heard by the courts of the City of Monterrey, Mexico. The adversary proceeding seeks to compel Proeza to honor its agreement to arbitrate and to terminate the Mexican litigation.
Proeza has moved to dismiss the adversary proceeding on multiple grounds, asserting that this Court lacks jurisdiction over the subject matter of this proceeding, that there is no personal jurisdiction over Proeza, and that even if there were jurisdiction, this Court should defer to ongoing proceedings in Mexico on comity principles or dismiss this case on grounds of forum non conveniens. Tower Mexico, on its own behalf and on behalf of the Debtors, has responded, and the Official Creditors Committee has moved to intervene in support of their position.
For the reasons stated below, this Court has no jurisdiction over the subject matter of this dispute, and the complaint must be dismissed on that basis. There is no occasion to reach any of Proeza’s other defenses or to decide the motion to intervene.
Jurisdiction over the Subject Matter
28 U.S.C. § 1334(b) provides in relevant part that the district courts (and by *600referral this Court) have original but not exclusive jurisdiction “of all civil proceedings arising under title 11, or arising in or related to cases under title 11.” There is no dispute that this Court’s jurisdiction arises, if at all, under the “related to” rubric of § 1334(b). The leading definition of “related to” jurisdiction is the formulation of the Third Circuit in Pacor, Inc. v. Higgins, 743 F.2d 984 (3d Cir.1984), where the Court held that a proceeding is “related to” a bankruptcy case if “the outcome of that proceeding could conceivably have any effect on the estate being administered in bankruptcy.” The Court continued:
Thus the proceeding need not necessarily be against the debtor or against the debtor’s property. An action is related to bankruptcy if the outcome could alter the debtor’s rights, liabilities, options, or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankruptcy estate.
743 F.2d at 994. The Supreme Court has cited this test with approval, although it did not expressly adopt the definition (referring among other things to the “slightly different test” utilized by the Second Circuit in In re Turner, 724 F.2d 338, 341 (2d Cir.1983)). Celotex Corp. v. Edwards, 514 U.S. 300, 308, n. 6, 115 S.Ct. 1493, 131 L.Ed.2d 403 (1995). However, the test has been adopted by the First, Fourth, Fifth, Sixth, Eighth, Ninth and Eleventh Circuits.1 In Publicker Indus. v. United States (In re Cuyahoga Equip. Corp.), 980 F.2d 110 (2d Cir.1992), decided after Celotex, the Second Circuit joined most of the other circuits in expressly accepting the Pacor test, holding that a proceeding falls within the Bankruptcy Court’s “related to” jurisdiction if it has a “significant connection” to the bankruptcy case, as formulated by In re Turner, 724 F.2d at 341, or if there is a “conceivable effect” on the estate, as set forth in Pacor. Although the dispute in Cuyahoga was between two non-debtors, the Circuit Court found that there was jurisdiction in the bankruptcy court to approve a settlement because the parties’ respective claims “bring into question the very distribution of the estate’s property and its allocation between a party asserting the status of constructive trustee and a first priority secured creditor.” 980 F.2d at 114. Since Cuyahoga, courts in this Circuit have found that there is no meaningful difference between the standards articulated by Turner and Pacor and that “the existence of a ‘conceivable effect’ on the bankruptcy now establishes ‘related to’ jurisdiction under Section 1334(b).” ML Media Partners, LP v. Century/ML Cable Venture (In re Adelphia Communications Corp.), 285 B.R. 127, 137 (Bankr.S.D.N.Y.2002).
The Debtors and the Creditors Committee embrace the Pacor definition and contend that the results of the adversary proceeding will have not only a “conceivable effect” on the RJ Tower estate but a very real impact on the distribution that its creditors can expect. The Court does not doubt the Debtors’ contention that Proeza’s ability to undo or terminate the Joint Venture through action in the Mexican courts would have a major impact on the projected distribution to the RJ Tower creditors. Nevertheless, the impact on the *601creditors of the RJ Tower estate will result only from a diminution in value of RJ Tower’s investment in the stock of its subsidiary, Tower Mexico. This is not enough to provide this Court with jurisdiction over a dispute between Tower Mexico, a non-filing subsidiary, and a third party.2
In Feldman v. Beck Industries, Inc. (In re Beck Industries, Inc.), 479 F.2d 410 (2d Cir.1973), the Second Circuit held that bankruptcy jurisdiction did not extend so far as to permit a referee to restrain state court proceedings against a wholly-owned subsidiary of the debtor, even though the value of the debtor’s stock holdings in the subsidiary would be directly impacted by the results of the state litigation. Quoting its prior decision in In re Gobel, Inc., 80 F.2d 849, 852 (2d Cir.1936), the Circuit Court held that “mere financial interest of a bankrupt estate in the outcome of the litigation pending in state courts does not authorize the issuance of an injunction against such prosecution.” 479 F.2d at 416. The only exception to this principle, according to the Beck Court, would be proof that the subsidiary “was a mere sham or conduit rather than a viable entity.” Id. There is no contention here that Tower Mexico is a “sham or conduit” or anything other than a viable and, apparently, valuable separate entity in its own right. The Debtors and Committee argue that Beck is not controlling because it was decided under the prior Bankruptcy Act and did not take account of the expansion of bankruptcy jurisdiction in the 1978 Code, as evidenced by the breadth of the Pacor definition of “related to” jurisdiction. Even though the 1978 Bankruptcy Code broadened the jurisdiction of this Court, bankruptcy jurisdiction is still limited, and there is no indication in the legislative history of the 1978 Code that the rule in Beck would be overruled. Since 1978 several courts in this circuit have expressly held that it was not. See Mego Intl., Inc. v. Packaging & Assembly Mfg. Corp. (In re Mego Intl., Inc.), 30 B.R. 479 (S.D.N.Y.1983); In re Stein & Day, Inc., 113 B.R. 157, 162 (Bankr.S.D.N.Y.1990) (“Beck is still good law even though decided under the old Bankruptcy Act.”).3 Courts that have long been governed by the Pacor formulation have also held that a lawsuit that impacts only the value of a debtor’s subsidiary is not within the “related to” jurisdiction of the bankruptcy court. See Equity Broadcasting Corp. v. Shubert (In re Winstar Communic., Inc.), 284 B.R. 40, 51 (Bankr.D.Del.2002), where the Court stated that an action which may have an impact on the value of a debtor’s subsidiary
does not alter the estate’s rights, liabilities, options or freedom of action. If the court were the find that this action was under the jurisdiction of the Bankruptcy Court, the decision would have the result of bringing every wholly owned subsidiary into every Bankruptcy case regardless of the circumstances and without the safeguards afforded by schedules, statements of financial affairs, notices to creditors, or meetings of creditors.
See also Fitzgeralds Sugar Creek, Inc. v. Kansas City Station Corp. (In re Fitzgeralds Gaming Corp.), 261 B.R. 1, 6-7 *602(Bankr.W.D.Mo.2001); 1 Norton Bankr L. & Prac. 2d § 4:113 (2005).
In any event, despite the breadth of the “conceivable impact” formulation in Pacor, there is nothing in that decision that suggests that a dispute that only indirectly impacts a bankruptcy estate — by affecting the value of one of its assets — comes within “related to” bankruptcy jurisdiction. The Pacor decision itself, as quoted above, held that “An action is related to bankruptcy if the outcome could alter the debt- or’s rights, liabilities, options or freedom of action (either positively or negatively) and which in any way impacts upon the handling and administration of the bankruptcy estate.” 743 F.2d at 994. The adversary proceeding at bar does not alter RJ Tower’s rights, liabilities, options or freedom of action, and it does not impact the handling and administration of the bankruptcy estate over which this Court has jurisdiction. Proeza has not claimed that any of the Debtors are liable to it and has not filed a proof of claim against any Debtor. Nor is there any indication that the results of the Mexican litigation will directly impact any of RJ Tower’s liabilities. The Debtors still own the stock of their subsidiary, and the fact that it may be worth less if they cannot compel Proeza to withdraw its Mexican lawsuit in favor of arbitration does not create jurisdiction that this Court would not otherwise have.
The Debtors have not been able to formulate any principled basis for a holding that a bankruptcy court has jurisdiction over a dispute involving a non-filed subsidiary without the court thereby acquiring jurisdiction over any dispute involving such subsidiary, so long as the resolution of that dispute could have a significant impact on the value of the entity. For example, a Chapter 7 debtor’s distributable assets might consist exclusively of the stock of a multinational corporation, but that happenstance would not give the bankruptcy court jurisdiction of a patent or antitrust dispute involving that corporation, no matter how important to its financial well-being.4
The Creditors Committee suggests that Proeza’s lawsuit in Mexico interferes with the collateral package provided to the Debtors’ lenders under the debtor in possession (DIP) financing arrangements approved by this Court at the outset of these eases. However, the lenders do not have a security interest in the Joint Venture or in any of the property of Tower Mexico. They have a lien on the stock of Tower Mexico that is the property of RJ Tower, but even the extensive litany of protections given them in the DIP financing order does not guarantee them that the stock will have any particular value. The Mexican litigation may dimmish the value of that stock to the disadvantage of the DIP *603lenders as well as RJ Tower and all of its other creditors, but that does not provide a basis for § 1334 “related to” jurisdiction.
It is a basic principle of bankruptcy law that each separate individual or corporate entity must file a separate bankruptcy petition and that each entity is treated separately unless grounds for substantive consolidation are demonstrated. See Federal Deposit Ins. Corp. v. Colonial Realty Co., 966 F.2d 57, 58 (2d Cir.1992). Tower Mexico has remained out of bankruptcy, allowing it to continue in business free of the burdens of the Bankruptcy Code, to pay its separate creditors and to maintain its business relationships without bankruptcy entanglement.5 As a necessary concomitant, under the facts of this case, the Debtors cannot bring into this Court a third-party dispute such as the controversy with Proeza under the rubric of § 1334(b) jurisdiction. The complaint must be dismissed for lack of subject matter jurisdiction.
Proeza is directed to settle an order on five days’ notice.
. See In re G.S.F. Corp., 938 F.2d 1467, 1475 (1st Cir.1991); A.H. Robins Co. v. Piccinin, 788 F.2d 994, 1002, n. 11 (4th Cir. 1986), cert denied, 479 U.S. 876, 107 S.Ct. 251, 93 L.Ed.2d 177 (1986); Wood v. Wood (In re Wood), 825 F.2d 90, 93 (5th Cir. 1987); Robinson v. Michigan Consol. Gas Co., 918 F.2d 579, 583-84 (6th Cir.1990); In re Dogpatch U.S.A., Inc., 810 F.2d 782, 786 (8th Cir.1987); In re Fietz, 852 F.2d 455, 457 (9th Cir.1988); In re Gardner, 913 F.2d 1515, 1518 (10th Cir.1990); In re Lemco Gypsum, Inc., 910 F.2d 784, 788 (11th Cir.1990).
. R.J. Tower was apparently an original party to the Joint Venture Agreement in Mexico, but it assigned its rights to Tower Mexico years ago and no longer has a direct interest therein. The Debtors do not base jurisdiction on the argument that one of the Debtors was once a party to the Joint Venture Agreement.
. Just as the courts in this Circuit have continued to follow the Beck principle after adoption of the Bankruptcy Code, Judge Friendly's pre-Code formulation of jurisdiction in Turner ("significant impact”) has continued to be good law.
. The Debtors rely on three cases in this Circuit, none of which discusses Beck and each of which is distinguishable. In In re Adelphia Communic. Corp., 285 B.R. at 138-39, one of the debtors was a direct party to the joint venture agreement at issue and two of the debtors would be jointly and severally liable for damages and expenses depending on results of the litigation. In Carver v. Brecher (In re Carver), 144 B.R. 643, 647 (S.D.N.Y.1992), the debtor was general partner of the partnership at issue in the litigation and the results of the case would directly impact his personal liabilities. In In re Lawrence, 233 B.R. 248, 252-53 (N.D.N.Y.1999), the issue was costs and fees for opposing removal and whether the Bankruptcy Court's jurisdiction was "arguable.'' The Committee also cites Anderson v. HSN (In re Donovan), 2005 Bankr.LEXIS 481 (Bankr.N.D.Ga. Feb. 9, 2005), where the Court sustained jurisdiction based on the impact a dispute would have on the assets of a non-filing subsidiary. Donovan did not have to consider the effect of the Beck decision and does not explain how any substantial dispute involving a debtor’s subsidiary would not come within bankruptcy jurisdiction under its rationale.
. Contrary to the Committee's argument, the litigation in Mexico does not implicate the automatic stay of § 362 of the Bankruptcy Code because Tower Mexico is not a debtor. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8494101/ | ORDER DENYING OBJECTION TO DISCHARGEABILITY OF DEBTS
DAVID R. DUNCAN, Bankruptcy Judge.
THIS MATTER is before the Court on complaints of Arrow Concrete Co. (“Plaintiff’ or “Arrow”) seeking a determination that the debts owed it by John R. Kautter (“Kautter”) and Douglas L. Bleam (“Bleam”)(hereinafter Kautter and Bleam are jointly referred to as “Defendants” or “Debtors”) not be discharged in the bankruptcy cases filed by the Debtors. Arrow’s claim is that Defendants failed to ensure that their construction business paid Arrow’s claim for materials supplied for construction jobs undertaken by the business, that Defendants are personally liable for the debt under South Carolina law, and that the failure to pay the debt is a defalcation by Defendants while in a fiduciary capacity with Arrow. The complaint seeks an exception from discharge pursuant to 11 U.S.C. §§ 523(a)(2), (a)(4) and (a)(6)1 of a debt in the amount of $38,560.05. The issues are joined and the parties have presented the case by stipulated facts and briefs.
STIPULATION OF FACTS
The facts admitted by the pleadings are:
1. Arrow is a foreign company licensed to do business in the State of South Carolina with all fees and a license paid. It is otherwise entitled to bring these actions.
2. Bleam filed a petition for relief under chapter 7 of the Bankruptcy Code on December 22, 2005. His case was subsequently converted to chapter 13 on Bleam’s notice of conversion and reconverted to chapter 7 on a finding that the debtor was not eligible for chapter 13 relief due to the debt limitations of 11 U.S.C. § 109(e). Kautter filed a petition for relief under chapter 7 of the Bankruptcy Code on January 13, 2006.
3. That this court has jurisdiction and that these proceedings are core proceedings.
4. Plaintiff is a creditor in the bankruptcy proceedings of the Debtors.
5. Bleam and Kautter are officers and/or directors of Concrete Impressions of the Lowcountry, Inc. (hereinafter “Concrete Impressions”), a South Carolina corporation.
6. Bleam, Kautter, and/or Concrete Impressions received payment or other compensation for the services, labor, and/or material provided by the Plaintiff and failed to remit to the Plaintiff payment for same.
7. During and after the times mentioned in the complaint, Defendants remitted no payment(s) to the Plaintiff.
8. By obtaining and/or accepting an extension of credit from Plaintiff and incurring charges on the account, Defendants as officers and/or directors of Concrete Impressions represented an intention to repay the amounts charged.
The parties also stipulated the following facts (omitting the parenthetical specifications of abbreviated further reference and substituting others to achieve consistency and to avoid confusion):
*6469. Douglas L. Bleam and John R. Kautter, were the shareholders, directors, and principals of Concrete Impressions, a South Carolina corporation engaged in the construction trade.
10. As principals of Concrete Impressions, both individuals were responsible for overseeing the accounting and bookkeeping for Concrete Impressions.
11. The Debtors were further responsible for hiring and routing payment to laborers, subcontractors, and material-men utilized by Concrete Impressions in its construction business.
12. In maintaining the accounting and bookkeeping for Concrete Impressions, the Debtors neither maintained nor required the maintenance of separate job cost ledgers or tallies for each construction project undertaken by Concrete Impressions.
13. The Debtors, and accordingly Concrete Impressions, failed to maintain separate accounting records for each project or job site.
14. Neither the Debtors nor Concrete Impressions have any way to demonstrate the extent, if any, to which laborers, subcontractors, and materialmen were paid out of the proceeds received from the particular projects undertaken by Concrete Impressions as required by the laws of South Carolina.
15. Arrow, was a materialman that supplied materials totaling Thirty-eight Thousand Five Hundred Sixty and 55/100 Dollars ($38,560.55) in value on a variety of construction jobs undertaken by Concrete Impressions.
16. Concrete Impressions received payments for work performed on the various construction jobs and projects which it undertook.
17. Concrete Impressions utilized the funds received from the various jobs and project to meet various expenses and expenditures unrelated to the claimant.
18. Concrete Impressions, operating under the control of Debtors, failed to remit any payment to the Claimant out of funds received from some of the underlying construction projects.
19. Due to the failure of maintaining job cost accounting records for Concrete Impressions’ business, the Debtors are unable to determine how much money was received on each job on which the Claimant was involved or determine the amounts incurred with other laborers, subcontractors, or materialmen for such projects.
20. No effort has been taken, or presently can be taken, to allocate the monies received amongst all the laborers, subcontractors or materialmen associated with each project.
ISSUES
Arrow maintains that South Carolina law creates a first lien on and a trust in money received by a contractor in connection with the erection or repair of a building in favor of material suppliers and others, in proportion to the respective claims of the unpaid laborers, subcontractors and suppliers. Arrow further contends that state law renders the failure to pay these claims a misdemeanor and that it also supplies a remedy for non-payment in tort. Arrow argues that corporate officers and directors are or can be personally culpable for the misdemeanor and civilly liable for the injury. Finally, Arrow argues that the debt should be excepted from the discharge in these cases pursuant to § 523(a)(4). Defendants’ answer to Arrow’s complaint admits Arrow’s status as a creditor of the individual debtors. Their brief suggests that this liability is by virtue of “a standard personal guarantee” which is not before the Court. Defendants deny *647that they individually are “contractors” within the meaning of the South Carolina construction lien statute and deny that they are fiduciaries or that their acts were a defalcation within the meaning of the Bankruptcy Code
CONCLUSIONS OF LAW
The plaintiff has the burden of proving an objection to discharge under § 727 or an exception from dischargeability under § 523 by a preponderance of the evidence. Grogan v. Garner, 498 U.S. 279, 111 S.Ct. 654, 112 L.Ed.2d 755 (1991); Farouki v. Emirates Bank Int’l, Ltd., 14 F.3d 244 (4th Cir.1994). The party chal lenging the dischargeability of a debt bears the burden of proof. Robb v. Robb (In re Robb), 23 F.3d 895 (4th Cir.1994). Once the plaintiff makes a prima facie case, the burden of proof shifts to the debtor to offer credible evidence to satisfactorily explain his or her conduct. Farouki, 14 F.3d at 249-50. “The exceptions to discharge were not intended and must not be allowed to swallow the general rule favoring discharge.” In re Cross, 666 F.2d 873 (5th Cir.1982). Thus, exceptions to discharge are narrowly construed.
The Court turns first to the Plaintiffs claims pursuant to §§ 523(a)(2) and (a)(6). The Plaintiffs brief does not mention these sections and it appears to have abandoned these causes of action. The Defendants’ answers to the complaints included motions to dismiss these claims for relief pursuant to Fed.R.Civ.P. 12(b)(6). In dismissing claims for failure to state a cause of action a court must construe the allegations in the light most favorable to the plaintiff and assume the facts alleged in the complaint to be true. If it is clear as a matter of law that no relief could be granted under any set of facts that could be proved consistent with the allegations of the complaint then the offending causes of action must be dismissed. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).
The plaintiffs refers to § 523(a)(2) without noting or differentiating its two subsections, which require significantly different proof. To establish a claim under § 523(a)(2)(A), “[a] creditor must establish five elements ... (1) that the debtor made a representation, (2) that at the time the representation was made, the debtor knew it was false, (3) that the debtor made the false representation with the intention of defrauding the creditor, (4) that the creditor justifiably relied upon the representation, and (5) that the creditor was damaged as the proximate result of the false representation.” See Foley & Lardner v. Biondo (In re Biondo), 180 F.3d 126, 134 (4th Cir.1999); MBNA Am. v. Simos (In re Simos), 209 B.R. 188, 191 (Bankr.M.D.N.C.1997). On the other hand, § 523(a)(2)(B) requires a false written statement respecting the financial condition of a debtor or insider. In re Blackwell, 702 F.2d 490, 492 (4th Cir.1983). No set of facts could be proven under the complaint to support a cause of action under § 523(a)(2) in that there is no allegation of making a representation with the intent of defrauding the creditor, justifiable reliance, or a written statement. The cause of action under § 523(a)(2) is .dismissed.
The plaintiff refers to § 523(a)(6) in its complaint, but nowhere in the complaint is there notice by allegation of any basis for a claim of willful and malicious injury to plaintiff or its property. The cause of action under § 523(a)(6) is likewise dismissed.
Turning to the remaining cause of action, § 523(a)(4) requires proof of three elements. These are that a defendant was obligated to a plaintiff in a fiduciary capac*648ity, that the defendant committed fraud or defalcation while acting in that capacity, and that the debt due plaintiff is from the fraud or defalcation. See Pahlavi v. Ansari (In re Ansari), 113 F.3d 17, 20 (4th Cir.1997)(“In order to prove a debt is nondischargeable under § 523(a)(4) of the Bankruptcy Code, a creditor must prove the debtor committed ‘[1] fraud or defalcation {2} while acting in a fiduciary capacity.’ ”) The statute itself provides the third element. It precludes discharge of a debt arising from enumerated conduct.
“ ‘Fraud’ for purposes of this exception has generally been interpreted as involving intentional deceit, rather than implied or constructive fraud.” 4 Collier on Bankruptcy, ¶ 523.10 at pg. 523-70 (15th ed. rev.2006). The plaintiff here argues defalcation and not fraud. Judge Learned Hand broadly discussed the term defalcation and his definition of the term serves as the starting point for many courts. He supplied the definition in the context of the predecessor section under the Bankruptcy Act to what is now § 523(a)(4):
“[Defalcation” may demand some portion of misconduct; we will assume arguendo that it does. All we decide is that when a fiduciary takes money upon a conditional authority which may be revoked and knows at the time that it may, he is guilty of a “defalcation” though it may not be a “fraud” or an “embezzlement” or perhaps not even a “misappropriation.”
Central Hanover Bank & Trust Co. v. Herbst, 93 F.2d 510, 512 (2d Cir.1937).
Three lines of authority have emerged; extending from the view that an innocent mistake in fully accounting for funds is a defalcation, to requiring negligence, or even reckless conduct as a prerequisite to the finding. See ¿ Collier on Bankruptcy, pg. 523-71. This Court gave a detailed explanation of the term defalcation in an early case under the Bankruptcy Code.
The case law interpreting the term “defalcation” has given it a broad definition. “Generally, defalcation is a failure to account for money or property that has been entrusted to one.” American Metals Corp. v. Cowley (In re Cowley), 35 B.R. 523[526], 529 (Bankr.D.Kan.1983). Treacher v. Duttenhofer (In re Duttenhofer), 12 B.R. 926, 7 B.C.D. 1187 (Bankr.C.D.Cal.1981); See Kansas State Bank and Trust Co. v. Vickers (In re Vickers), 577 F.2d 683 (10th Cir.1978). A mere deficit resulting from the debt- or’s misconduct, even if the debtor’s conduct does not benefit him, may be “defalcation.” In re Cowley, 35 B.R. at 529; Aetna Insurance Co. v. Byrd (In re Byrd), 15 B.R. 154, 8 B.C.D. 436 (Bankr.E.D.Pa.[Va.]1981). “Defalcation” is the slightest misconduct, and it need not be intentional misconduct; negligence or ignorance may be “defalcation.” In re Cowley, 35 B.R. at 529. See, In re Duttenhofer, supra.; Baugh v. Matheson (In re Matheson), 10 B.R. 652, 7 B.C.D. 643 (Bankr.S.D.Ala.1981).
Landvest Assoc. v. Owens (In re Owens), 54 B.R. 162, 165 (Bankr.D.S.C.1984).
Given the underlying principles of balanced relief for honest debtors, recovery by creditors from property not necessary for a fresh start, and the narrow construction of discharge exceptions, some degree of culpability or slight misconduct on the part of a debtor should be required before determining a debt not dischargeable. Schwager v. Fallas (Matter of Schwager), 121 F.3d 177, 184 (5th Cir.1997). The showing need not involve scienter and the conduct need not rise to the level of fraud, embezzlement or misappropriation. Based on the stipulations of the parties, the conduct of the debtors in failing to account meets the broad definí*649tion of defalcation. However, an actionable defalcation for purposes of applying § 523(a)(4) arises only in the context of a fiduciary relationship and apart from its existence within the bounds of a fiduciary relationship, defalcation has no meaning under the Bankruptcy Code.
We turn then to the meaning of “fiduciary capacity.” The definition of “fiduciary” in a dischargeability action is a matter of federal law. In re Heilman, 241 B.R. 137 (Bankr.D.Md.1999). The Bankruptcy Code does not define “fiduciary capacity,” however, the term is narrowly or strictly construed in dischargeability actions. Davis v. Aetna Acceptance Co., 293 U.S. 328, 55 S.Ct. 151, 79 L.Ed. 393 (1934)(The sale of an automobile out of trust was not a defalcation in a fiduciary capacity under the Bankruptcy Act of 1898, § 17(4)); In re Duiser, 12 B.R. 538, 539 (Bankr.W.D.Va.1981). Courts generally hold that the relationship must arise from a pre-existing express or technical trust. In re Murphy, 9 B.R. 167, 173 (Bankr.E.D.Va.1981). It may also arise from a statutory trust. See In re Snyder, 184 B.R. 473 (D.Md.1995)(Trust under Perishable Agricultural Commodities Act, 7 U.S.C. § 499e(c)). The trust relationship must not spring from conduct as in the case of a constructive or resulting trust. “It is not enough that by the very act of wrongdoing out of which the contested debt arose, the bankrupt has become chargeable as trustee ex maleficio. He must have been a trustee before the wrong and without reference to the wrong.” Davis, at 333, 55 S.Ct. 151. This narrow construction begins with interpretations of the Bankruptcy Act of 1841 in the case Chapman v. Forsyth, 43 U.S. 202, 2 How. 202, 11 L.Ed. 236 (1844)(A factor is not a fiduciary).
If the act embrace such a debt, it will be difficult to limit its application. It must include all debts arising from agencies; and indeed all cases where the law implies an obligation from the trust reposed in the debtor. Such a construction would have left but few debts on which the law could operate. In almost all the commercial transactions of the country, confidence is reposed in the punctuality and integrity of the debtor, and a violation of these is, in a commercial sense, a disregard of a trust. But this is not the relation spoken of in the first section of the act. The cases enumerated, ‘the defalcation of a public officer,’ ‘executor,’ ‘administrator,’ ‘guardian,’ or ‘trustee,’ are not cases of implied but special trusts, and the ‘other fiduciary capacity’ mentioned, must mean the same class of trusts. The act speaks of technical trusts, and not those which the law implies from the contract. A factor is not, therefore, within the act.
Id., at 208.
The courts are deeply divided in applying § 523(a)(4) to attorneys, corporate directors, officers and shareholders, general partners, limited partners, joint venturers, property managers, insurance agents, lottery agents, contractors, subcontractors, and homebuilders. See generally cases collected, Heilman, at 152-56. In the building industry context “[a] variety of trust relationships do not meet the ‘fiduciary’ test of § 523(a)(4).” 3 Bruner & O’Connor, Construction Law § 8:45.
While the definition of defalcation and fiduciary capacity are found in federal law, resort to state law is necessary to establish the extent and existence of the party’s relationship. In re Martin, 161 B.R. 672 (9th Cir. BAP 1993). The plaintiff relies on S.C.Code Ann. §§ 29-7-10 & 20 (1976, as amended) to establish the relationship of Arrow and Concrete Impressions. The statutes provide:
*650Any contractor or subcontractor in the erection, alteration, or repairing of buildings in this State shall pay all laborers, subcontractors, and materialmen for their lawful services and material furnished out of the money received for the erection, alteration, or repairs of buildings upon which such laborers, subcontractors, and materialmen are employed or interested and such laborers, as well as all subcontractors and persons who shall furnish material for any such building, shall have a first lien on the money received by such contractor for the erection, alteration, or repair of such building in proportion to the amount of their respective claims. Any person providing private security guard services at the site of the building during its erection, alteration, or repair shall be deemed to be a laborer within the meaning of this section. Nothing herein contained shall make the owner of the building responsible in any way and nothing contained in this section shall be construed to prevent any contractor or subcontractor from borrowing money on any such contract. “Person” as used in this section shall mean any individual, corporation, partnership, proprietorship, firm, enterprise, franchise, association, organization, or other such entity.
§ 29-7-10 Code of Laws of S.C. (1976, as amended).
A contractor or subcontractor who, for other purposes than paying the money loaned upon such contract, transfers, invests or expends and fails to pay to a laborer, subcontractor, or materialman out of the money received as provided in Section 29-7-10 is guilty of a misdemeanor and, upon conviction, when the consideration for the work and material exceeds the value of one hundred dollars must be fined not less than five hundred dollars nor more than one thousand dollars or imprisoned not less than three months nor more than six months and when such consideration does not exceed the value of one hundred dollars must be fined not more than five hundred dollars or imprisoned not longer than thirty days.
§ 29-7-20(1) Code of Laws of S.C. (1976, as amended).
The indebtedness of Defendants to Arrow is admitted, at least in some form. Arrow argues that the defalcation arises from the Defendants’ failure to pay or cause the payment of Arrow’s claim. Plaintiff claims that Defendants may incur criminal liability under the construction lien statute and State v. Hill, 286 S.C. 283, 333 S.E.2d 789 (1985). The State’s interest in prosecution of crimes for fraudulent failure to pay is distinguished from collection of debt considerations and may be pursued independently; even in the bankruptcy context. See § 362(b)(1). Arrow also argues in its brief that the Defendants have personal liability for the debt by virtue of their participation as director or officer “in the commission of a tort (such as a breach of trust or of a fiduciary duty)” under BPS, Inc. v. Worthy, 362 S.C. 319, 608 S.E.2d 155 (S.C.App.2005). The statute at issue begins with requiring payment of laborers and suppliers from money received on a project and turns to creating a lien in the same sentence.
The general rule that “fiduciary capacity” requires the showing of an express trust is altered or ignored by some courts in applying § 523(a)(4) in the context of construction lien statutes. “The application of § 523(a)(4) to construction trust fund laws is, by no means, uniform.” 3 Bruner and O’Conner, Construction Law § 8:45. Many states have similar laws requiring payment of laborers, subcontractors and material suppliers, creating a lien in favor of the unpaid party and providing *651criminal sanctions for failing to pay. Many of these statutes create a specific trust or use the term trust in the body of the statute; South Carolina’s does not. Among those states with statutes specifically raising a trust in favor of the unpaid subcontractors and suppliers, there is a split of authority as to whether § 523(a)(4) precludes discharge, even within the same circuit. See In re Faulkner, 213 B.R. 660, 665 (Bankr.W.D.Tex.1997); In re Nicholas, 956 F.2d 110 (5th Cir.1992). The cases often turn on a construction of state law. The problem with relying on state law to too great an extent is that it considers practically every agent to be a fiduciary. Heilman, at 157.
South Carolina law does not create a trust, express or otherwise, in the construction lien statute. It may create some generalized duty in agency and in debtor — creditor law to pay the debt. This may even be termed a fiduciary relationship under state law. The Bankruptcy Code does not recognize every trust as creating “fiduciary capacity,” but rather it envisions and requires more. There must be an intention of the parties to abide in a trust relationship. Here the parties have an ordinary commercial relationship, albeit, one secured by statutory lien with an attendant duty to pay and potential criminal implications. Nevertheless, it is a contractual relationship and the liability of the Defendants is, at its root, for materials supplied. The relationship created by the provision of materials for the construction project is that of debtor and secured party, not trustee and beneficiary. No true trust relationship is imposed by the South Carolina construction lien statute sufficient to create a “fiduciary capacity” for purposes of federal law and dischargeability under the Bankruptcy Code. That the statute fails to mention a trust and put the parties on notice of the relationship supports hewing to the narrow construction.
The bankruptcy jurisprudence of “fiduciary capacity” extends back to the Act of 1841. See Matter of Angelle, 610 F.2d 1335 (5th Cir.1980); Hamby v. St. Paul Mercury Indemnity Co., 217 F.2d 78 (4th Cir.1954). Congress has shown no intention of overruling this long line of precedent by continuing to employ the term “fiduciary capacity” in the discharge provisions of the current bankruptcy law. While the Courts have not followed the straightest of lines in interpreting the statute, the majority rule favors the more narrow construction.
The objection to the discharge of the debt owed by Bleam and Kautter to Arrow is denied.
AND IT IS SO ORDERED.
. Further reference to sections of the Bankruptcy Code, 11 U.S.C. § 101 et. seq. is by section number only. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487152/ | Correction of an Error in a Note to the Case of King vs. Kilbride, page 119.In the note referred to the description of the mortgage debt in the complaint was by mistake given, instead of its description in the mortgage deed. To make the matter plain the following is substituted for the entire note as it appears on page 119.The point decided in the last paragraph of the opinion will not be understood without a statement of the facts upon which the question of the insufficiency of the description of the debt in the mortgage is made. The debt is thus described in the mortgage:—‘ The condition of this deed is such, that whereas the said grantor is justly indebted to the said grantee in the sum of fifteen hundred dollars, as evidenced by his promissory note of even date herewith, payable to said grantee or order, as therein appears, with interest at six per cent per annum, payable semiannually ; now therefore, if said note shall be well and truly paid according to its tenor, then this deed shall be void, otherwise to remain in full force and effect.”The note, was as follows : | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487154/ | Argued May 7thdecided June 11th, 1902.
No error. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487155/ | Submitted on briefs June 4thSummary process brought before a justice of the peace and *727transferred to the City Court of Waterbury, where it was tried to the jury (Cowell, J".). Judgment for plaintiff, and appeal by defendants for alleged error in the charge of the court.
No error. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487156/ | decided May 12th, 1903.Action in the nature of an appeal from an assessment of • benefits and damages on account of a local public improvement, brought to the Superior Court in New Haven County and tried to the court, Robinson, J.; facts found and judgment rendered for the plaintiffs for $1,800 damages, and appeal by the defendant.
No error. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487158/ | Banks, J.
The plaintiff J. Warren Upson is administrator upon the estate of Francesca DiBlasi, having been appointed as such in the place of Salvatore DiBlasi, the original plaintiff in this action. The complaint alleged that on July 19th, 1921, Francesca DiBlasi gave a certain power of attorney to the defendant Frank DiBlasi, that she was the owner of certain real estate on Griggs Street in Waterbury, that she died on January 30th, 1924, and that on February 16th, 1926, Frank DiBlasi, purporting to act as her agent under the power of attorney, transferred the Griggs Street property without consideration to his *541wife, the defendant Anna DiBlasi; that the transfer was made with knowledge on the part of both defendants that he had no authority to make it, and with intent to cheat and defraud the estate of Francesca DiBlasi, and that the property was necessary assets of her estate for the payment of debts and administration expenses. In a third defense in their answer the defendants alleged that Salvatore and Francesca DiBlasi, who were husband and wife, and their two sons, Frank and Carmelo, were partners in business under the firm name of Salvatore DiBlasi & Sons, that they had an agreement among themselves that Frank was to be the owner of, and have the title to, the Griggs Street property, and that the power of attorney was given him by Francesca for the purpose of carrying out that agreement, and ultimately vesting in him the title to that property. These allegations were repeated in a fourth defense coupled with the further allegation that by virtue of such agreement Frank became entitled to an interest in the property, and that in connection with such agreement the power of attorney constituted an authority coupled with an interest in the premises in his favor which was not affected by the death of Francesca. The allegations of the third defense were again repeated in a counterclaim in which it was asked to have the affairs of the partnership wound up and its assets distributed. In response to plaintiff’s motion for a more specific statement, the defendants alleged that the agreement set out in the third defense was in writing only in so far as expressed in the power of attorney. The plaintiff filed identical demurrers to the third and fourth defenses and the counterclaim, upon the ground that it appeared that the agreement alleged therein was one for the transfer of the title to real estate, and was not in writing, and that the power of attorney was not *542a memorandum of the terms of such agreement. These demurrers were sustained (Baldwin, ./.), and the defendants filed an amendment to the third defense alleging an agreement by Francesca DiBlasi to transfer the property to Frank, that the power of attorney was executed by her with the intention of conveying title to him, and that they both understood that it would have that effect, to which the plaintiff again demurred on the ground that it appeared that the agreement to transfer the property was not in writing, and the demurrer was sustained (Ells, /.). The defendants then filed a further pleading labeled “Amended Counterclaim,” in which the allegations of the third and fourth defenses as to the partnership, and the agreement for the transfer of this property, were repeated, with a further allegation that the title to this property was taken in the name of Francesca under an agreement that it was to be held by her for Salvatore, Frank and Carmelo until the partnership should be dissolved and a division of the partnership assets made. The plaintiff again demurred to this pleading on the ground that the agreement for the transfer of the property to Frank was not in writing, and on the further ground that the settlement of the affairs of a partnership, one of whose members was not a party to this action, could not be had in this action, and this demurrer was sustained (Wolfe, /.).
The defense of the statute of frauds may be raised upon demurrer when it appears from the pleadings that it will be impossible for a party alleging an agreement required by the statute to be in writing to offer any competent evidence of the existence of the necessary memorandum, and in such case the pleading making such allegation will be held insufficient upon demurrer. Jacobson v. Hendricks, 83 Conn. 120, 75 Atl. 83. Concededly, the power of attorney executed by Francesca *543DiBlasi, which authorized Frank DiBlasi to “execute necessary documents to convey any property which I may be possessed of,” was revoked by her death unless it granted a power coupled with an interest. Mansfield v. Mansfield, 6 Conn. 559; Organized Charities Asso. v. Mansfield, 82 Conn. 504, 74 Atl. 781. It is alleged in the fourth defense and the amended counterclaim that the power of attorney, in connection with the alleged oral agreement that the property was to be transferred to Frank, constituted an authority coupled with an interest in the property which was not affected by the death of Francesca prior to the conveyance of the property by virtue of the power of atí; ney. The power of attorney itself does not purpo.’ to convey any interest in the property to Frank. It is clear that Frank’s claimed interest in the property arises, if at all, out of the alleged oral agreement that it was to be transferred to him by his mother. Proof of this oral agreement is therefore an essential part of the defenses alleged, and the situation falls within the rule that a contract upon which the legislature says no action can be maintained cannot be used to defeat a claim otherwise legal and just. Simons v. New Britain Trust Co., 80 Conn. 263, 267, 67 Atl. 883. To meet the contention that this agreement is within the statute of frauds, the defendants apparently advance two claims as to the effect of the power of attorney, (1) that it was a part performance of the oral agreement, and (2) that it constituted a sufficient memorandum of the terms of the agreement to remove the bar of the statute. It needs no argument to demonstrate that both of these claims are entirely untenable. The power of attorney given by Francesca to Frank authorizing him to execute any documents necessary to convey her property could not possibly be an act of part performance of an agree*544ment to convey property to him. Andrews v. New Britain National Bank, 113 Conn. 467, 474, 155 Atl. 838. Nor does it purport to contain the terms of the alleged oral agreement, or of any agreement contemplating the vesting of the title to the property in him. It is a document of an entirely different character, from which would arise no suggestion of the existence of the oral agreement alleged in the pleadings demurred to. The amendment to the third defense and the amended counterclaim repeated the allegations of the original answer, and were likewise demurrable as alleging an oral agreement for the transfer of real property. The rulings upon these demurrers are to be tested by the allegations of the pleadings demurred to, and are not affected by the subsequent finding of the trial court that, at the time of the execution of the power of attorney, Francesca DiBlasi’s interest in the property in question was that of a mortgagee. The allegations in these pleadings as to the existence of a partnership are immaterial upon the issues here involved, since it is not questioned that the legal title to the property was vested in Francesca, and the defendants themselves, in the amendment to their third defense, base their claim to the property upon an alleged agreement of Francesca to transfer the property to Frank, which they claim she intended to do when she gave him the power of attorney. The allegation in the amendment to the third defense as to the understanding of the parties of the legal effect of the power of attorney was the allegation of an immaterial fact, since the legal effect of the instrument cannot be altered by proof of what the parties understood that legal effect to be. Hartford Bldg. & Loan Asso. v. Goldreyer, 71 Conn. 95, 103, 41 Atl. 659.
In the first defense of their answer, the defendants alleged that the original plaintiff, Salvatore DiBlasi, *545had no right to bring this action as administrator of the estate of Francesca DiBlasi, and in their assignment of errors claimed that the court erred in not holding that the Court of Probate had no jurisdiction to appoint an administrator upon her estate, since it appeared that she had made a will which was in existence. The court found that, on the date of the execution of the power of attorney, Francesca DiBlasi also executed a will, which she took with her to Italy, where she died; that after her death her son Carmelo got possession of the will; that Salvatore, before probating his wife’s estate, attempted to obtain the will from Carmelo, who denied that he had possession of it, and that a carbon copy of the typewritten part of the original will was produced in evidence upon the trial. Upon these facts it does not appear that the Court of Probate was without jurisdiction to appoint an administrator upon the estate of Francesca DiBlasi. It is not found that, when application was made to the Court of Probate for the appointment of an administrator, there was a valid will in existence, nor did the production upon the trial of this action of a carbon copy of a portion of a will establish the existence of a valid will. If, in proper proceedings in the Court of Probate, it shall appear that Francesco DiBlasi did leave a valid will, that court has the power to revoke the letters of administration to this plaintiff and his predecessor, but this will not affect the validity of their acts done in good faith in the settlement of the estate. General Statutes, § 4900.
The discussion in defendants’ brief of the claim of the defendant Frank to an interest in this property as an heir at law of his mother is beside the point, since his rights as such heir are not within the issues of this case, and will undoubtedly be fully protected in the *546proceedings for the settlement of his mother’s estate in the Court of Probate.
On September 11th, 1930, Salvatore, Frank, Carmelo and Anna DiBlasi signed a paper which was claimed by the defendants to be binding upon Salvatore as an arbitration agreement relative to the division of the estate of Francesca DiBlasi. It was not binding upon the present plaintiff (Upson), who was then administrator upon the estate of Francesca, and, furthermore, the conclusion of the trial court that there was no meeting of the minds of the parties as to its provisions is supported by the subordinate facts found.
The defendant Anna DiBlasi was asked upon her direct examination by counsel for the plaintiff if she remembered that certain questions were asked of her in connection with a demand made upon her by the plaintiff, and in each case answered that she did not remember what questions were asked her. In view of the nature of the answer, the ruling admitting these questions could not have harmed the defendants.
The assignments of error based upon the refusal of the trial court to correct the finding are not properly before us as none of the evidence has been certified.
There is no error.
In this opinion the other judges concurred. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487123/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/18/2022 08:06 AM CST
- 518 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCALISE V. DAVIS
Cite as 312 Neb. 518
Nicholas N. Scalise, appellant, v.
Jeffrey L. Davis and the Sarpy County
Sheriff’s Office, appellees.
___ N.W.2d___
Filed September 30, 2022. No. S-21-031.
1. Courts: Appeal and Error. In an appeal from the county court general
civil docket, the district court acts as an intermediate appellate court and
not as a trial court.
2. ____: ____. Both the district court and a higher appellate court gener-
ally review appeals from the county court for error appearing on the
record.
3. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable.
4. Appeal and Error. An appellate court independently reviews questions
of law in appeals from the county court.
5. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach an
independent conclusion irrespective of the determination made by the
court below.
6. Misdemeanors. For purposes of 18 U.S.C. § 921(a)(33)(A) (2018), a
misdemeanor crime of domestic violence is a misdemeanor offense that
(1) has, as an element, the use of force and (2) is committed by a person
who has a specified domestic relationship with the victim.
7. Statutes: Words and Phrases. A divisible statute is a statute that sets
out one or more elements of the offense in the alternative.
8. Criminal Law: Statutes: Convictions. The circumstance-specific
approach applies where the underlying statute refers to specific circum-
stances rather than to generic crimes and allows a court to look beyond
the elements of the prior offense and consider the facts and circum-
stances underlying an offender’s conviction.
- 519 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCALISE V. DAVIS
Cite as 312 Neb. 518
Appeal from the District Court for Sarpy County, Stefanie
A. Martinez, Judge, on appeal thereto from the County
Court for Sarpy County, Todd J. Hutton, Judge. Judgment of
District Court affirmed.
Hugh I. Abrahamson, of Abrahamson Law Office, and
Phillip G. Wright for appellant.
No appearance for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Funke, J.
INTRODUCTION
In 2020, the Sarpy County, Nebraska, sheriff’s office denied
Nicholas N. Scalise’s application for a certificate to possess a
handgun. In doing so, the sheriff determined that Scalise’s prior
conviction for third degree assault qualified as a “misdemeanor
crime of domestic violence” under 18 U.S.C. § 922(g)(9)
(2018). Scalise filed a handgun appeal with the county court,
arguing that he had never been convicted of a crime of domes-
tic violence. The county court denied Scalise’s relief, as did
the district court on appeal. For reasons set forth herein, we
affirm the order of the district court, affirming the order of the
county court.
BACKGROUND
In 2018, Scalise was arrested and charged with strangulation
from an incident arising out of an argument with the victim.
Pursuant to a plea agreement, an amended criminal complaint
was filed, which charged Scalise with third degree assault, a
Class I misdemeanor, and alleged that Scalise “did intention-
ally, knowingly or recklessly cause bodily injury to, and/or
did threaten [the victim] in a menacing manner, in violation
of Section 28-310(1).” Scalise pled guilty to the amended
complaint and was sentenced to a term of probation. After
successfully completing probation in 2020, Scalise attempted
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCALISE V. DAVIS
Cite as 312 Neb. 518
to purchase a handgun, but was advised by the retailer that
he needed to obtain a permit from the Sarpy County sher-
iff’s office.
The Sarpy County sheriff’s office denied Scalise’s appli-
cation for a handgun certificate pursuant to Neb. Rev. Stat.
§ 69-2404 (Reissue 2016) and 18 U.S.C. 922(g)(9), finding
that Scalise’s conviction for third degree assault met the cri-
teria for domestic violence under federal law. Scalise then
filed an appeal pursuant to Neb. Rev. Stat. § 69-2406 (Reissue
2016) in the county court for Sarpy County, asserting that he
had never been convicted of domestic violence or a crime of
domestic violence.
At the hearing before the county court, the sheriff’s office
offered exhibit 1, which contained the following documents: the
amended complaint charging Scalise with third degree assault,
the order placing Scalise on probation, Scalise’s request for sat-
isfactory discharge from probation, the order releasing Scalise
from probation, incident reports from the Papillion, Nebraska,
police department, and the victim/witness statement.
Scalise offered exhibits 2, 3, and 4, which consisted of
the criminal complaint charging him with strangulation; the
amended complaint charging him with third degree assault; the
journal entry and order showing his entry of a guilty plea to
the amended charge; the complete transcript from the January
24, 2019, sentencing hearing; the order placing him on proba-
tion; his request for satisfactory discharge from probation; the
order releasing him from probation; the sheriff’s denial of his
application for a handgun certificate; and a copy of his hand-
gun appeal.
After the hearing, the county court issued an order deny-
ing the appeal and finding that the sheriff’s office acted in
accordance with state and federal law. In its order, the court
explained that § 922(g)(9) “prohibits any person who has been
convicted in any court of a misdemeanor crime of domestic
violence to . . . possess in or affecting commerce, any firearm
or ammunition.”
- 521 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCALISE V. DAVIS
Cite as 312 Neb. 518
In discussing what constitutes a domestic violence convic-
tion, the county court looked to the U.S. Supreme Court’s
opinion in United States v. Hayes, 1 which found that a domes-
tic relationship need not be a defining element of the predi-
cate offense under consideration when evaluating whether a
handgun certificate can properly be issued. Because Scalise
was convicted of third degree assault, which is a misdemeanor
under Neb. Rev. Stat. § 28-310 (Reissue 2016) that contains
elements of “[i]ntentionally, knowingly, or recklessly caus[ing]
bodily injury to another person” or “threatens another in a
menacing manner,” and because the adduced evidence showed
that Scalise and the victim of the assault were in a domestic
relationship, the court found the restrictions established by
§ 922(g)(9) apply to Scalise.
Scalise appealed to the district court, which entered an
opinion and order affirming the county court’s order and con-
cluding that the restrictions established by § 922(g)(9) apply
to Scalise, resulting in his ineligibility to obtain a handgun
certificate.
Scalise timely appealed, but the sheriff’s office declined to
file a brief in this appeal. We moved this case to our docket on
our own motion.
ASSIGNMENTS OF ERROR
Scalise assigns, consolidated, that the district court erred in
affirming the county court’s finding that Scalise’s third degree
assault conviction qualified as a predicate offense for the pur-
pose of a federal prohibition on firearms under § 922(g)(9).
Scalise also argues the court erred in failing to advise him that
if convicted, he would lose the right to bear arms. Scalise fur-
ther makes a number of constitutional arguments pertaining to
the Second Amendment to the U.S. Constitution, double jeop-
ardy, and due process.
1
United States v. Hayes, 555 U.S. 415, 129 S. Ct. 1079, 172 L. Ed. 2d 816
(2009).
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCALISE V. DAVIS
Cite as 312 Neb. 518
STANDARD OF REVIEW
[1-3] In an appeal from the county court general civil
docket, the district court acts as an intermediate appellate court
and not as a trial court. 2 Both the district court and a higher
appellate court generally review appeals from the county court
for error appearing on the record. 3 When reviewing a judgment
for errors appearing on the record, an appellate court’s inquiry
is whether the decision conforms to the law, is supported by
competent evidence, and is neither arbitrary, capricious, nor
unreasonable. 4
[4,5] We independently review questions of law in appeals
from the county court. 5 Statutory interpretation presents a
question of law, for which an appellate court has an obligation
to reach an independent conclusion irrespective of the determi-
nation made by the court below. 6
ANALYSIS
Applicable Federal Law
Scalise applied for his handgun certificate under § 69-2404.
However, § 69-2404 states that an applicant cannot obtain a
handgun certificate if the applicant is prohibited from pur-
chasing or possessing a handgun by § 922. Section 922(g)(9)
makes it unlawful for any person who has been convicted of a
“misdemeanor crime of domestic violence” to possess a fire-
arm. Under 18 U.S.C. § 921(a)(33)(A) (2018), the term “mis-
demeanor crime of domestic violence” means an offense that
(i) is a misdemeanor under Federal, State, or Tribal
law; and
(ii) has, as an element, the use or attempted use of
physical force, or the threatened use of a deadly weapon,
2
See In re Conservatorship of Mosel, 234 Neb. 86, 449 N.W.2d 220 (1989).
3
State v. Avey, 288 Neb. 233, 846 N.W.2d 662 (2014).
4
Id.
5
Id.
6
State v. Beitel, 296 Neb. 781, 895 N.W.2d 710 (2017).
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
SCALISE V. DAVIS
Cite as 312 Neb. 518
committed by a current or former spouse, parent, or
guardian of the victim, . . . by a person who is cohabiting
with or has cohabited with the victim as a spouse, parent,
or guardian, or by a person similarly situated to a spouse,
parent, or guardian of the victim.
[6] In Hayes, the U.S. Supreme Court simplified this
definition and determined that the most sensible reading of
§ 921(a)(33)(A) defines the term “misdemeanor crime of
domestic violence” as a misdemeanor offense that “(1) ‘has,
as an element, the use [of force],’ and (2) is committed by
a person who has a specified domestic relationship with the
victim.” 7 The Court emphasized that such definition does not
require the specified domestic relationship to be an element of
the predicate-offense statute. 8
In United States v. Castleman, 9 the U.S. Supreme Court
articulated the definition of the phrase “use of physical force”
for purposes of § 921(a)(33)(A). In Castleman, the appellant
pled guilty to “‘intentionally or knowingly caus[ing] bodily
injury’” to the mother of his child, in violation of Tennessee
state law. In a subsequent prosecution for being a prohib-
ited person in possession of a firearm, the appellant argued
his Tennessee conviction did not qualify as a “misdemeanor
crime of domestic violence” under § 922(g)(9), because it did
not have, as an element, the use of physical force. The U.S.
Supreme Court disagreed and held that the Tennessee statute
under which the appellant was convicted defined three types
of assault, one of which was “‘[i]ntentionally, knowingly or
recklessly caus[ing] bodily injury to another.’” 10 The Court
concluded that the appellant’s conviction qualified as a “‘mis-
demeanor crime of domestic violence’” because the appellant
7
Hayes, supra note 1, 555 U.S. at 426.
8
Id.
9
United States v. Castleman, 572 U.S. 157, 159, 134 S. Ct. 1405, 188 L.
Ed. 2d 426 (2014).
10
Id., 572 U.S. at 168 (quoting Tenn. Code Ann. § 39-13-101 (2006)).
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SCALISE V. DAVIS
Cite as 312 Neb. 518
pleaded guilty to having “‘intentionally or knowingly cause[d]
bodily injury’” to the mother of his child and because the
knowing or intentional causation of bodily injury necessarily
involves the use of force. 11
Then, in Voisine v. United States, 12 the U.S. Supreme Court
extended the definition of the phrase “misdemeanor crime of
domestic violence” to include misdemeanor assault statutes
covering reckless conduct. In doing so, the Voisine Court held
that a statute which prohibits the reckless causing of bodily
injury also has, as an element, the use of physical force.
As such, in determining whether an applicant is prohibited
from possessing a firearm, a court must consider whether the
predicate conviction involved the use of force and whether the
offender and the victim were involved in a domestic relation-
ship. In making these determinations, a court is limited as to
what evidence can be considered.
Approaches
Federal courts have outlined three separate approaches a
court may employ in determining if a prior conviction qualifies
as a predicate offense to trigger a federal consequence. First,
the U.S. Supreme Court has developed and refined a method-
ology referred to as the “categorical approach” to determine
whether a person’s prior state conviction qualifies as a generic
federal offense described in the relevant statute. 13
Under the categorical approach, a court must determine only
whether the defendant was convicted under a criminal statute
11
Id., 572 U.S. at 169.
12
Voisine v. United States, 579 U.S. 686, 136 S. Ct. 2272, 195 L. Ed. 2d 736
(2016).
13
See, Gonzales v. Duenas-Alvarez, 549 U.S. 183, 127 S. Ct. 815, 166
L. Ed. 2d 683 (2007) (considering generic federal offenses for purposes
of immigration law); Taylor v. United States, 495 U.S. 575, 110 S. Ct.
2143, 109 L. Ed. 2d 607 (1990) (considering generic federal offenses for
purposes of Armed Career Criminal Act of 1984). See, also, Orellana v.
Mayorkas, 6 F.4th 1034 (9th Cir. 2021).
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that categorically matches the generic federal offense, without
considering the particular facts underlying the defendant’s con-
viction. 14 In doing so, the court considers only the statutory
language of the criminal statute of conviction and the generic
federal offense, and may not consider any evidence relating to
the defendant’s conduct. 15
[7] However, for the limited purpose of “help[ing to] imple-
ment the categorical approach,” the U.S. Supreme Court has
recognized a narrow range of cases in which courts may apply
a different approach: the modified categorical approach. 16
Courts may use the modified categorical approach only where
the criminal statute of conviction is divisible. 17 A divisible
statute is a statute that sets out one or more elements of the
offense in the alternative. 18
Under this approach, a court must determine “‘which of
the [alternative] statutory offenses . . . formed the basis of
the defendant’s conviction.’” 19 To make this determination,
a court may look to only a narrow category of documents,
colloquially known as Shepard documents, 20 such as “‘the
indictment or information and jury instructions or, if a guilty
plea is at issue, . . . the plea agreement, plea colloquy or some
comparable judicial record of the factual basis for the plea.’” 21
However, a court may not look at other evidence, such as
14
Orellana, supra note 13 (citing Taylor, supra note 13).
15
Id.
16
Descamps v. United States, 570 U.S. 254, 263, 133 S. Ct. 2276, 186 L. Ed.
2d 438 (2013).
17
Id.
18
Descamps, supra note 16.
19
Orellana, supra note 13, 6 F.4th at 1039 (quoting Descamps, supra note
16).
20
Shepard v. United States, 544 U.S. 13, 125 S. Ct. 1254, 161 L. Ed. 2d 205
(2005).
21
Orellana, supra note 13, 6 F.4th at 1040 (quoting Nijhawan v. Holder, 557
U.S. 29, 129 S. Ct. 2294, 174 L. Ed. 2d 22 (2009)).
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police reports or victim statements, to determine what crime
the defendant actually committed, because such review would
amount to a collateral trial and raise concerns pertaining to the
Sixth Amendment to the U.S. Constitution. 22
[8] More recently, in Nijhawan v. Holder, 23 the U.S.
Supreme court recognized a third approach: the “‘circum-
stance-specific’” approach. Such approach applies where the
underlying statute refers to specific circumstances, rather than
to generic crimes. This approach allows a court to look beyond
the elements of the prior offense and consider the “facts and
circumstances underlying an offender’s conviction.” 24 One
indication that a statute refers to specific circumstances rather
than to generic crimes is statutory language focusing on
“the conduct involved ‘in’” rather than “the elements of ” an
offense. 25 For example, the Nijhawan Court stated that the
Immigration and Nationality Act provides for the deporta-
tion of any alien convicted of an aggravated felony. Under
this act, the definition of “‘aggravated felony’” includes “‘an
offense that . . . involves fraud or deceit in which the loss
to the victim or victims exceeds $10,000.’” 26 In Nijhawan,
the U.S. Supreme Court determined that this particular pro-
vision in the Immigration and Nationality Act invoked the
circumstance-specific approach because the words “in which”
could refer to “the conduct involved ‘in’ the commission
of the offense of conviction, rather than to the elements of
the offense.” 27
A statute may also present a hybrid situation in which one
section of the statute is governed by one approach, while
22
See Orellana, supra note 13 (citing Shepard, supra note 20).
23
Nijhawan, supra note 21, 557 U.S. at 34.
24
Id. Accord U.S. v. White, 782 F.3d 1118 (10th Cir. 2015).
25
Nijhawan, supra note 21, 557 U.S. at 39. See, also, Bogle v. Garland, 21
F.4th 637 (9th Cir. 2021).
26
Nijhawan, supra note 21, 557 U.S. at 32.
27
Id., 557 U.S. at 39 (emphasis omitted).
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another is subject to a different approach. For example,
although not expressly stated, it appears that the Hayes Court
employed a hybrid approach by applying the circumstance-spe-
cific approach to the specific domestic relationship requirement
and the categorical approach to the “use of physical force”
requirement. 28
Further, in U.S. v. Doss, 29 the Ninth Circuit analyzed 18
U.S.C. § 3559(e)(1) (2018), which delineates federal sentenc-
ing guidelines for repeat sex offenders and provides for a man-
datory minimum life sentence for certain federal sex offenses
if the defendant has a “prior sex conviction in which a minor
was the victim.” Relying on the U.S. Supreme Court’s rea-
soning in Nijhawan, the Doss court concluded that § 3559(e)
presents a hybrid situation because while the phrase “a prior
sex offense conviction” requires application of the categorical
approach, the phrase “in which a minor was the victim” calls
for application of the circumstance-specific approach.
Thus, like § 3559(e), § 921(a)(33)(A)(ii) also implicates
the hybrid approach employed in Hayes and Doss. Here, as
mentioned earlier, § 921(a)(3)(A)(ii) can be broken into two
parts. One provision requires that the predicate offense be
committed by a current or former spouse, parent, or guard-
ian of the victim, by a person with whom the victim shares a
child in common, by a person who is cohabiting with or has
cohabited with the victim as a spouse, parent, or guardian, or
by a person similarly situated to a spouse, parent, or guardian
of the victim. Federal circuit courts generally agree that Hayes
can be construed as using a circumstance-specific approach to
28
See United States v. Hayes, supra note 1. See, also, U.S. v. Price, 777
F.3d 700 (4th Cir. 2015) (stating that Hayes Court reasoned that legislative
history supported use of factual analysis on specific issue of domestic
relationship); U.S. v. Gonzalez-Medina, 757 F.3d 425 (5th Cir. 2014)
(characterizing Hayes as holding that domestic relationship requirement
need not be element of predicate statute of conviction and could be
determined under circumstance-specific approach).
29
U.S. v. Doss, 630 F.3d 1181 (9th Cir. 2011).
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determine the existence of the specified domestic relationship
as required by § 921(a)(33)(A)(ii). In reaching these conclu-
sions, federal circuit courts considered the statutory language
(“committed by”), the broad Congressional purpose of the
law, and the fact that only one-third of states had criminal
statutes that specifically proscribed domestic violence when
the provision was enacted. 30
By contrast, the other provision in § 921(a)(3)(A)(ii) requires
that the predicate offense has, as an element, “the use or
attempted use of physical force.” Although the Hayes court
employed the categorical approach to the second provision,
such approach is not appropriate here, because § 28-310(1) is
a divisible statute.
Under § 28-310(1), a person commits third degree assault
under two enumerated alternatives: “(a) Intentionally, know-
ingly, or recklessly causes bodily injury to another person;
or (b) [t]hreatens another in a menacing manner.” Because
§ 28-310(1) sets out one or more elements of the offense in the
alternative, the statute is a divisible statute. Though a convic-
tion secured under alternative (a) may trigger the prohibition
on firearms under federal law, a conviction under alternative
(b) will not.
As such, when considering an appeal from the denial of
an application for a handgun certificate, Nebraska courts
should employ the circumstance-specific approach to the
specified domestic relationship requirement, but employ the
modified categorical approach to the “use of physical force”
requirement.
Application
In this matter, Scalise’s primary argument is that his third
degree assault conviction under § 28-310 does not qualify as a
misdemeanor crime of domestic violence because he was not
convicted of domestic assault under Neb. Rev. Stat. § 28-323
30
Gonzalez-Medina, supra note 28 (citing Hayes, supra note 1).
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(Reissue 2016) and because the sentencing court did not make
a finding of a domestic relationship.
In making this argument, Scalise fails to appreciate that
§ 921(a)(33)(A)(ii)’s definition of the phrase “misdemeanor
crime of domestic violence” does not require that the predicate
conviction be one of domestic assault or domestic violence.
Rather, the federal statute simply requires that the predicate
conviction have, as an element, the use of physical force and
be committed by a person who has a specified domestic rela-
tionship with the victim. 31 As such, a conviction under either
§ 28-310 or § 28-323 can satisfy the definition of a misde-
meanor crime of domestic violence depending on the circum-
stances of the offense. Further, to the extent Scalise argues that
§ 28-310 does not have a domestic relationship element, such
argument is negated by the fact that the circumstance-specific
approach, applicable to the domestic relationship requirement
of § 921(a)(33)(A)(ii), allows us to look beyond the elements
of § 28-310.
Specifically, the circumstance-specific approach allows this
court to go beyond the limited universe of Shepard docu-
ments 32 and to the facts and circumstances underlying Scalise’s
conviction for third degree assault. 33 Contrary to Scalise’s
claim that the evidence does not establish a domestic relation-
ship between himself and the victim, the police department’s
incident report, as well as the victim/witness statement, estab-
lishes that Scalise and the victim were in a dating relationship
for approximately 5 years, which included cohabitation for a
period of time.
Additionally, Scalise’s reliance on the definition of “intimate
partner” in § 28-323(8) to support his argument is misplaced
and erroneous. Section 28-323(8) states:
31
See Hayes, supra note 1.
32
Shepard, supra note 20.
33
See Lindo v. Secretary, U.S. Department of Homeland Security, 766 Fed.
Appx. 897 (11th Cir. 2019). See, also, Nijhawan, supra note 21.
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For purposes of this section, intimate partner means
a spouse; a former spouse; persons who have a child
in common whether or not they have been married or
lived together at any time; and persons who are or were
involved in a dating relationship. For purposes of this
subsection, dating relationship means frequent, intimate
associations primarily characterized by the expectation of
affectional or sexual involvement, but does not include
a casual relationship or an ordinary association between
persons in a business or social context.
(Emphasis supplied.) It is clear that § 28-323(8)’s definition
of “intimate partner” is for purposes of that particular statute
and has no bearing on our analysis under § 921(a)(33)(A)(ii).
Thus, the district court properly found that Scalise’s conviction
satisfies the domestic relationship requirement of § 921(a)(33).
This assignment of error is without merit.
In regard to the “use of physical force” requirement, Scalise
assigns that the “trial court failed to determine if [his] simple
assault conviction contained the necessary elements of know-
ingly or recklessly causing bodily injury.” However, in his
brief, he makes no arguments regarding this assigned error.
Instead, he focuses on the alleged errors as to his relation-
ship with the victim. In order to be considered by an appellate
court, an alleged error must be both specifically assigned and
specifically argued in the brief of the party asserting the error. 34
Accordingly, we will not address this argument.
Notice Requirement
Scalise further contends that the county court failed to give
him notice that his conviction could prevent him from pos-
sessing a handgun in the future as required by Neb. Rev. Stat.
§ 29-2291(1) (Reissue 2016). Section 29-2291(1) provides:
When sentencing a person convicted of a misdemeanor
crime of domestic violence as defined in 18 U.S.C.
34
Humphrey v. Smith, 311 Neb. 632, 974 N.W.2d 293 (2022).
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921(a)(33), as such section existed on July 18, 2008,
the court shall provide written or oral notification to the
defendant that it may be a violation of federal law for the
individual: To ship or transport in interstate or foreign
commerce, or possess in or affecting commerce, any fire-
arm or ammunition; or to receive any firearm or ammuni-
tion which has been shipped or transported in interstate or
foreign commerce.
The record before us clearly shows that the court gave
Scalise the requisite advisement pursuant to § 29-2291. As
such, this assignment of error is meritless.
Remaining Assignments of Error
Lastly, as previously mentioned, Scalise assigned as error
a number of constitutional arguments concerning the Second
Amendment, double jeopardy, and due process. We decline
to address these assignments of error because neither the
county court nor the district court addressed Scalise’s constitu-
tional claims. A constitutional issue not presented to or passed
upon by the trial court is not appropriate for consideration
on appeal. 35
CONCLUSION
For the foregoing reasons, the district court did not err
in affirming the county court’s denial of Scalise’s handgun
appeal.
Affirmed.
35
State v. Boche, 294 Neb. 912, 885 N.W.2d 523 (2016).
Stacy, J., concurring.
The majority opinion provides much‑needed guidance on the
requirement in Neb. Rev. Stat. § 69‑2404 (Reissue 2016) that
applicants who are “prohibited from purchasing or possess-
ing a handgun by 18 U.S.C. 922” shall not receive a handgun
certificate. I agree in all respects with the majority’s analysis
and disposition, but write separately to highlight some of the
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procedural questions that remain unanswered in appeals from
the denial of handgun certificates.
This appeal is authorized by Neb. Rev. Stat. § 69‑2406
(Reissue 2016), which provides, in full:
Any person who is denied a certificate, whose certifi-
cate is revoked, or who has not been issued a certificate
upon expiration of the three‑day period may appeal
within ten days of receipt of the denial or revocation to
the county court of the county of the applicant’s place
of residence. The applicant shall file with the court the
specific reasons for the denial or revocation by the chief
of police or sheriff and a filing fee of ten dollars in
lieu of any other filing fee required by law. The court
shall issue its decision within thirty days of the filing of
the appeal.
Although this statute affords individuals the right to appeal to
the county court from the denial or revocation of a handgun
certificate, it is largely silent on the procedure for such an
appeal. Who are the parties of record in such an appeal? Must
the chief of police or sheriff be served with a notice of the
appeal? What does the appellate record consist of and who has
the responsibility to prepare it? Is it appropriate to hold an evi-
dentiary hearing before the county court? Is the decision of the
chief of police or sheriff reviewed by the county court de novo,
reviewed for errors appearing on the record, or reviewed for an
abuse of discretion? What relief is the county court authorized
to order? 1 These procedural questions are not addressed in
§ 69‑2406, and they are not adequately addressed in any other
statute setting out default appeal procedures.
Neb. Rev. Stat. § 25‑1937 (Reissue 2016) addresses the
default procedure for appeals “[w]hen the Legislature enacts
1
Compare Neb. Rev. Stat. § 84‑917 (Reissue 2016) (providing that in
appeals under Administrative Procedure Act district court “may affirm,
reverse, or modify the decision of the agency or remand the case for
further proceedings”).
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a law providing for an appeal without providing the procedure
therefor . . . .” It provides that “the procedure for appeal to the
district court shall be the same as for appeals from the county
court to the district court in civil actions” and states that in
such appeals, “[t]rial in the district court shall be de novo upon
the issues made up by the pleadings in the district court.” 2
But § 25‑1937 does not describe the appellate procedure or
standard of review for appeals that are to be initiated in county
court, as set forth in § 69‑2406.
Neb. Rev. Stat. § 25‑2701 (Reissue 2016) provides a proce-
dure for county courts to follow when no other specific proce-
dure has been enumerated by the Legislature. It provides:
All provisions in the codes of . . . civil procedure govern-
ing actions and proceedings in the district court not in
conflict with statutes specifically governing procedure in
county courts and related to matters for which no specific
provisions have been made for county courts shall govern
and apply to all actions and proceedings in the county
court. 3
While helpful, § 25‑2701 does not fill the procedural void
created by § 69‑2406. This is so because the statutory proce-
dures for appeals before the district court either conflict with
the limited statutory procedures announced in § 69‑2406 4 or
do not fit the statutory scheme described by § 69‑2406, under
2
§ 25‑1937.
3
§ 25‑2701.
4
Compare § 69‑2406 (providing that applicant has 10 days to appeal from
decision or revocation and must “file with the court the specific reasons
for the denial or revocation,” as well as pay filing fee of $10) with Neb.
Rev. Stat. § 25‑2729 (Cum. Supp. 2020) (providing that appealing party
has 30 days after entry of county court judgment or final order to file
notice of appeal with clerk of county court and deposit docket fee), Neb.
Rev. Stat. § 25‑2733 (Reissue 2016) (providing that “the district court
shall review the case for error appearing on the record made in the county
court”), and § 25‑1937 (providing that “[t]rial in the district court shall be
de novo upon the issues made up by the pleadings in the district court”)
(emphasis supplied).
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which there is no judgment or final order from which to appeal.
Under the existing provisions of § 69‑2406, it is not even clear
whether the county court has a record to review beyond the
applicant’s description of the “specific reasons for the denial or
revocation by the chief of police or sheriff.” 5
Section 69‑2406 was intended to give applicants an expe-
dited appeal process when a handgun certificate is denied or
revoked by the chief of police or the sheriff. But until the
Legislature establishes a clear statutory procedure to govern
such appeals, there will be continued uncertainty and a lack of
uniformity in how these appeals are processed and resolved in
the county courts.
Cassel, J., joins in this concurrence.
5
See § 69‑2406. But, see, 272 Neb. Admin. Code, ch. 22, § 006.03 (2022)
(“[t]he agency to which an application was made will preserve evidence
of the reason(s) for denial or revocation for at least 30 days, should the
applicant appeal the denial or revocation”). Cf. Neb. Rev. Stat. § 69‑2414
(prescribing procedure for applicants denied right to purchase or receive
handgun to petition Nebraska State Patrol requesting “amendment of the
record pertaining to him or her”). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487125/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/18/2022 08:06 AM CST
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HEIST V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 480
Robert J. Heist II, appellant, v. Nebraska
Department of Correctional
Services et al., appellees.
___ N.W.2d ___
Filed September 23, 2022. No. S-20-813.
1. Summary Judgment: Appeal and Error. An appellate court affirms a
lower court’s grant of summary judgment if the pleadings and admitted
evidence show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts and that
the moving party is entitled to judgment as a matter of law.
2. ____: ____. An appellate court reviews the district court’s grant of sum-
mary judgment de novo, viewing the record in the light most favorable
to the nonmoving party and drawing all reasonable inferences in that
party’s favor.
3. Immunity: Jurisdiction. Sovereign immunity is jurisdictional in nature,
and courts have a duty to determine whether they have subject matter
jurisdiction over a matter.
4. Jurisdiction: Statutes. Subject matter jurisdiction and statutory inter-
pretation present questions of law.
5. Judgments: Appeal and Error. An appellate court independently
reviews questions of law decided by a lower court.
6. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question
which does not involve a factual dispute is determined by an appellate
court as a matter of law, which requires the appellate court to reach a
conclusion independent from the lower court’s decision.
7. Sentences: Statutes: Time. The good time law to be applied to a
defendant’s sentence is the law in effect at the time the defendant’s sen-
tence becomes final.
8. Jurisdiction: Appeal and Error. Where a lower court lacks subject
matter jurisdiction to adjudicate the merits of a claim, issue, or question,
an appellate court also lacks the power to determine the merits of the
claim, issue, or question presented to the lower court.
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9. Administrative Law: Immunity: Waiver: Jurisdiction: Declaratory
Judgments. The Administrative Procedure Act provides a limited statu-
tory waiver of the State’s sovereign immunity and confers subject matter
jurisdiction for a declaratory judgment action seeking a determination
regarding the validity of a state agency’s rule or regulation.
10. Administrative Law: Words and Phrases. The Administrative
Procedure Act defines a “rule or regulation” as any standard of general
application adopted by an agency in accordance with the authority con-
ferred by statute.
11. Administrative law. Under the Administrative Procedure Act, a rule or
regulation shall not include internal procedural documents which pro-
vide guidance to staff on agency organization and operations, lacking
the force of law, and not relied upon to bind the public.
12. Administrative Law: Jurisdiction: Declaratory Judgments: Statutes.
The Administrative Procedure Act does not confer jurisdiction for
declaratory relief concerning judicial interpretation of a statute.
13. Declaratory Judgments: Immunity: Waiver. Nebraska’s Uniform
Declaratory Judgments Act does not waive the State’s sovereign
immunity.
14. Declaratory Judgments: Public Officers and Employees: Immunity.
A declaratory judgment action against a state officer or agent seeking
relief from an invalid act or an abuse of authority by an officer or agent
is not a suit against the State and is therefore not barred by the prin-
ciples of sovereign immunity.
15. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
16. Statutes: Legislature: Intent. Components of a series or collection of
statutes pertaining to a certain subject matter are in pari materia and
should be conjunctively considered and construed to determine the
intent of the Legislature, so that different provisions are consistent, har-
monious, and sensible.
17. ____: ____: ____. In order for a court to inquire into a statute’s legisla-
tive history, that statute in question must be open to construction, and a
statute is open to construction when its terms require interpretation or
may reasonably be considered ambiguous.
18. Statutes. The statutory canon of expressio unius est exclusio alterius
recognizes that an expressed object of a statute’s operation excludes the
statute’s operation on all other objects unmentioned by the statute.
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19. Sentences. Where a mandatory minimum sentence is involved, an
inmate’s parole eligibility date is calculated by subtracting the manda-
tory minimum sentence from the court’s minimum sentence, halving the
difference, and adding that difference to the mandatory minimum.
20. Statutes: Legislature: Presumptions: Intent. In construing a statute,
it is presumed that the Legislature intended a sensible, rather than an
absurd, result.
21. Statutes. Under the absurd results doctrine, a court may deviate from
the plain language of the statutory text if application of the plain lan-
guage would lead to manifest absurdity.
22. ____. The absurd results doctrine does not include substantive errors
arising from a drafter’s failure to appreciate the effect of certain statu-
tory provisions.
Appeal from the District Court for Lancaster County: John
A. Colborn, Judge. Affirmed.
Robert J. Heist II, pro se.
Douglas J. Peterson, Attorney General, and Scott R. Straus
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ., and Steinke, District Judge.
Funke, J.
I. INTRODUCTION
Robert J. Heist II, an inmate in the Nebraska Department of
Correctional Services (DCS) system, appeals the dismissal of
his petition for declaratory judgment under the Administrative
Procedure Act (APA) and Nebraska’s Uniform Declaratory
Judgments Act (UDJA). Heist argues that good time credit
earned pursuant to Neb. Rev. Stat. § 83-1,107(2)(b) (Cum.
Supp. 2020) applies to an inmate’s parole eligibility date
(PED). In affirming the decision of the district court, we con-
clude that good time earned pursuant to § 83-1,107(2)(b) is
applicable only to reduce an inmate’s maximum sentence and,
accordingly, has no applicability to an inmate’s PED.
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II. BACKGROUND
1. Factual Background
On April 4, 2016, Heist was sentenced to imprisonment
for a minimum of 11 years (with a mandatory minimum of 3
years) and a maximum of 25 years in the DCS system for child
enticement. According to DCS records, Heist’s PED is March
30, 2023, and DCS’ brief on appeal gives his tentative release
date (TRD) as February 10, 2030.
Since his incarceration, Heist has been earning good time
credit under § 83-1,107. It is undisputed that the reductions
of Heist’s sentence under § 83-1,107 have been, and continue
to be, deducted from the maximum term of his sentence to
calculate the date when discharge from state custody becomes
mandatory. It further appears that, currently, no reductions have
been applied to Heist’s minimum sentence, mandatory mini-
mum sentence, or PED.
2. DCS Policy 104.08
DCS has adopted “Policy 104.08,” which is titled “Inmate
Time Calculations and Sentencing.” The stated purpose of
DCS’ Policy 104.08 is to “outlin[e] methodology for calcu-
lating inmate’s sentences.” As to procedures for inmate time
computations, Policy 104.08 notes that there are seven separate
Nebraska laws that govern the release of all inmates commit-
ted to DCS and explains that “[t]hese statutes, along with the
opinions of Nebraska courts and the state Attorney General’s
office, form the basis of all time calculations.” The first
Nebraska law identified is 2011 Neb. Laws, L.B. 191, which
Policy 104.08 describes as follows:
A. Effective March 16, 2011, LB 191 amended sections
83-1,107 and 83-1,108
1. LB 191 added an opportunity [for a committed
offender] to earn additional good time based on institu-
tional behavior. [DCS] will reduce the term of a commit-
ted inmate by three days on the first day of each month,
following a 12-month period of incarceration within
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[DCS], during which the inmate has not been found guilty
of a Class I or Class II offense, or more than three Class
III offenses under [DCS’] disciplinary code. Reductions
earned pursuant to LB 191 shall not be subject to forfeit
or withholding by [DCS].
3. Procedural Facts
Heist filed a petition against DCS, Scott Frakes in his offi-
cial capacity as DCS director, Mickie Baum in her official
capacity as DCS records administrator, and Candace Bottorf
in her official capacity as DCS agency legal counsel (here-
inafter collectively DCS) for declaratory judgment under
the APA and the UDJA. Heist alleged that Policy 104.08
improperly withholds L.B. 191 good time from PEDs. He
also argued that Policy 104.08 is a rule or regulation for pur-
poses of the APA and is not authorized by the language of
§ 83-1,107 and Neb. Rev. Stat. § 83-1,110 (Reissue 2014).
DCS filed a motion to dismiss which, by agreement and
notice to both parties, was converted to a motion for sum-
mary judgment. Heist subsequently filed a cross-motion for
summary judgment.
In October 2020, the district court entered an order sustain-
ing DCS’ motion, overruling Heist’s motion, and dismissing
Heist’s complaint. The court concluded that it lacked jurisdic-
tion over Heist’s APA claim, because Policy 104.08 was not a
rule or regulation as defined by Neb. Rev. Stat. § 84-901 (Cum.
Supp. 2020) and the State did not waive its sovereign immu-
nity. The court further concluded that DCS was entitled to
summary judgment on the UDJA claim, because Policy 104.08
accurately outlines how sentences are to be calculated pursu-
ant to Nebraska law and Heist’s PED was correctly calculated.
Heist appeals.
Heist filed a petition to bypass review by the Nebraska
Court of Appeals, asserting the case involves an issue of first
impression in Nebraska. We granted the petition to bypass and
moved the case to our docket.
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III. ASSIGNMENTS OF ERROR
Heist assigns, restated and consolidated, that the district
court erred in (1) finding that DCS Policy 104.08 is an internal
procedural document and thus concluding that it lacked subject
matter jurisdiction over his APA claim; (2) granting summary
judgment in favor of DCS on his UDJA claim, when Nebraska
law requires application of good time credit earned under
§ 83-1,107(2)(b) to PEDs; and (3) finding that 62 inmates hav-
ing a PED after their respective TRD, which is colloquially
referred to as an “inverted sentence,” is not so absurd that the
Legislature could not have intended § 83-1,107 to be inter-
preted as applying only to the maximum sentence.
IV. STANDARD OF REVIEW
[1,2] An appellate court affirms a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter
of law. 1 An appellate court reviews the district court’s grant of
summary judgment de novo, viewing the record in the light
most favorable to the nonmoving party and drawing all reason-
able inferences in that party’s favor. 2
[3-5] Sovereign immunity is jurisdictional in nature, and
courts have a duty to determine whether they have subject mat-
ter jurisdiction over a matter. 3 Subject matter jurisdiction and
statutory interpretation present questions of law. 4 An appellate
court independently reviews questions of law decided by a
lower court. 5
[6] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter of
1
Lassalle v. State, 307 Neb. 221, 948 N.W.2d 725 (2020).
2
Id.
3
Burke v. Board of Trustees, 302 Neb. 494, 924 N.W.2d 304 (2019).
4
In re Estate of Brinkman, 308 Neb. 117, 953 N.W.2d 1 (2021).
5
Id.
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law, which requires the appellate court to reach a conclusion
independent from the lower court’s decision. 6
V. ANALYSIS
[7] As an initial matter, we note that the good time law to be
applied to a defendant’s sentence is the law in effect at the time
the defendant’s sentence becomes final. 7 Because Heist was
sentenced in 2016, L.B. 191 is the applicable law governing
his sentence. Prior to the enactment of L.B. 191, § 83-1,107
reduced an inmate’s sentence by 6 months for each year of
the inmate’s term. L.B. 191 amended § 83-1,107 to allow an
inmate to earn additional good time at the rate of 3 days per
month after completion of 1 year of incarceration so long as
the offender did not commit certain offenses under DCS’ disci-
plinary code. Section 83-1,107(2) now reads as follows:
(a) [DCS] shall reduce the term of a committed offender
by six months for each year of the offender’s term and
pro rata for any part thereof which is less than a year.
(b) In addition to reductions granted in subdivision
(2)(a) of this section, [DCS] shall reduce the term of a
committed offender by three days on the first day of each
month following a twelve-month period of incarceration
within [DCS] during which the offender has not been
found guilty of (i) a Class I or Class II offense or (ii)
more than three Class III offenses under [DCS’] discipli
nary code. Reductions earned under this subdivision shall
not be subject to forfeit or withholding by [DCS].
(c) The total reductions under this subsection shall be
credited from the date of sentence, which shall include
any term of confinement prior to sentence and com-
mitment as provided pursuant to section 83-1,106, and
shall be deducted from the maximum term, to determine
the date when discharge from the custody of the state
becomes mandatory.
6
US Ecology v. State, 258 Neb. 10, 601 N.W.2d 775 (1999).
7
State v. Nollen, 296 Neb. 94, 892 N.W.2d 81 (2017).
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L.B. 191 also amended Neb. Rev. Stat. § 83-1,108 (Reissue
2014) to require that the Board of Parole reduce a parolee’s
parole term for good conduct while under parole by 10 days
for each month. Such reduction shall be deducted from the
maximum term, less good time granted pursuant to § 83-1,107,
to determine the date when discharge from parole becomes
mandatory.
As briefly discussed above, DCS inmates may accrue two
different good time credits under § 83-1,107. However, the
central issue in this case involves good time credits earned
pursuant to § 83-1,107(2)(b). As such, we decline to dis-
cuss the implications of good time credits earned pursuant to
§ 83-1,107(2)(a).
1. APA Claim
[8] Before reaching the legal import of § 83-1,107(2)(b)
and Policy 104.08, it is our duty to determine whether we
have jurisdiction over this matter. 8 Where a lower court lacks
subject matter jurisdiction to adjudicate the merits of a claim,
issue, or question, an appellate court also lacks the power to
determine the merits of the claim, issue, or question presented
to the lower court. 9
Heist argues that the district court erred in determining that
Policy 104.08 is not a rule or regulation and, thus, also in
determining that it lacked jurisdiction to adjudicate whether
the policy exceeds DCS’ statutory authority. Specifically, Heist
maintains Policy 104.08 is a rule or regulation because it
prescribes penalties, affects private rights, and sets its own
standards for calculating good time. He also maintains it has
the force of law, as shown by DCS’ “[p]ast practice” in releas-
ing approximately 300 inmates prematurely. 10 DCS disagrees,
arguing that Policy 104.08 is an internal procedural document
8
See Butler Cty. Landfill v. Butler Cty. Bd. of Supervisors, 299 Neb. 422,
908 N.W.2d 661 (2018).
9
Id.
10
Brief for appellant at 11.
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that repeats the relevant statutory language about calculating
inmate sentences “nearly verbatim,” rather than sets its own
standards. 11 DCS also asserts that any past misapplication of
good time does not establish the policy has the force of law.
We find no error in the district court’s determination that
Policy 104.08 is not a rule or regulation and hold that we, like
the district court, lack subject matter jurisdiction to consider
Heist’s APA claims.
[9-11] This court has repeatedly recognized that under Neb.
Rev. Stat. § 84-911 (Reissue 2014), the APA provides a limited
statutory waiver of the State’s sovereign immunity and confers
subject matter jurisdiction for a declaratory judgment action
seeking a determination regarding the validity of a state agen-
cy’s rule or regulation. 12 This waiver applies only to a “rule
or regulation,” which the APA defines to mean “any standard
of general application adopted by an agency in accordance
with the authority conferred by statute.” 13 The APA further
provides that the term “rule or regulation” shall not include
“internal procedural documents which provide guidance to
staff on agency organization and operations, lacking the force
of law, and not relied upon to bind the public.” 14 However, it
also provides that “every standard which prescribes a penalty
shall be presumed to have general applicability and any stan-
dard affecting private rights, private interests, or procedures
available to the public is presumed to be relied upon to bind
the public.” 15
Specifically, Heist asserts that language in sections I.B.3,
I.D.3, I.E.3, I.F.5, I.G.3, and I.H.5 of Policy 104.08, calling for
good time reductions to be forfeited or withheld for miscon-
duct, prescribes penalties, and as such, he maintains that Policy
104.08 is a rule or regulation. He similarly maintains that
11
Brief for appellees at 11.
12
See Engler v. State, 283 Neb. 985, 814 N.W.2d 387 (2012).
13
§ 84-901(2).
14
Id.
15
Id.
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language in sections I.A.1, I.F.6, I.G.3, and I.H.5, regarding
how good time can be earned and how lost good time can be
restored, affects private rights and, as such, means that Policy
104.08 must be a rule or regulation and cannot be an internal
procedural document.
Of the various sections of Policy 104.08 cited by Heist,
however, only section I.A.1 involves L.B. 191 good time. The
other sections pertain to good time under earlier statutes whose
application Heist does not challenge. As such, we focus our
discussion on section I.A.1.
Section I.A.1 essentially restates § 83-1,107(2)(b) when it
calls for inmates’ terms to be reduced by 3 days on the first
day of each month, following a 12-month period of incarcera-
tion within DCS, during which the inmate has not been found
guilty of a Class I or II offense, or more than three Class III
offenses, under DCS’ disciplinary code, and provides that any
such good time shall not be subject to forfeiture or withholding
by DCS. The only differences between the policy here and the
statute are immaterial; for example, section I.A.1 uses “NDCS”
and “will,” while the statute uses “the department” and “shall.”
Aside from these minute differences, DCS neither added any-
thing to nor removed anything from the statutory language
when restating it in the policy. As such, the purported penalties
and provisions affecting private rights that Heist points to do
not mean that Policy 104.08 is a rule or regulation. In fact, to
the contrary, they indicate that Policy 104.08 is a prototypical
internal procedural document insofar as it provides guidance to
staff by summarizing the seven statutes relevant to the release
of all DCS inmates and explaining their effect.
[12] Allowing Heist to challenge Policy 104.08 under the
APA simply because it restates statutory language that could be
seen to prescribe penalties or affect private rights would negate
our holding in Perryman v. Nebraska Dept. of Corr. Servs. 16
16
Perryman v. Nebraska Dept. of Corr. Servs., 253 Neb. 66, 568 N.W.2d 241
(1997), disapproved on other grounds, Johnson v. Clarke, 258 Neb. 316,
603 N.W.2d 373 (1999).
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The plaintiff in Perryman was an inmate whom DCS initially
credited with good time when computing his PED and TRD,
even though he was sentenced to a mandatory minimum
term. 17 However, DCS later revoked these credits after the
Nebraska Attorney General indicated that DCS’ practice was
contrary to the governing statute. 18 The plaintiff sued, seek-
ing a judicial determination as to whether DCS could take
this action based on the Attorney General’s memorandum.
However, the district court found it lacked jurisdiction under
the APA, because “‘the conflict is simply one of statutory
interpretation.’” 19 We affirmed, noting that the memoran-
dum “involve[d] a matter of statutory interpretation” and that
§ 84-911’s limited waiver of sovereign immunity “does not
confer jurisdiction for declaratory relief concerning judicial
interpretation of a statute.” 20
Heist attempts to distinguish his case from Perryman by
arguing that Policy 104.08 is not a memorandum, applies to
all inmates, “does prescribe a penalty,” and exceeds the DCS’
statutory authority. 21 However, these arguments are unavail-
ing. Nothing in the APA’s definition of “rule or regulation”
suggests that a document’s denomination as a “policy” or
“memorandum” is dispositive. The same is true as to whether
the document affects all inmates or a subset of inmates.
Moreover, as we have already noted, the policy merely restates
good time calculations set forth in the statute; it does not pre-
scribe a penalty. Further, the question of whether the policy
exceeds DCS’ statutory authority is an argument on the merits
which cannot be reached under Heist’s APA claim, because
we lack subject matter jurisdiction. Thus, we agree with the
district court and conclude that Policy 104.08 is not a rule or
17
Id.
18
Id.
19
Id. at 69, 568 N.W.2d at 244.
20
Id. at 70, 568 N.W.2d at 245.
21
Brief for appellant at 12.
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regulation, because it merely recites Nebraska statute. The
limited waiver of sovereign immunity does not confer juris-
diction for declaratory relief concerning judicial interpretation
of a statute. Accordingly, the district court correctly found
that it lacked subject matter jurisdiction under the APA in
Heist’s petition against DCS, because the State did not waive
its sovereign immunity.
2. UDJA Claim
Heist also argues that the district court erred in grant-
ing summary judgment in favor of DCS on his UDJA claim,
because Nebraska law requires that good time credit earned
under § 83-1,107(2)(b) apply to PEDs. DCS counters that the
plain language of § 83-1,107(2)(c) clearly indicates that good
time earned under § 83-1,107(2)(b) is only to be deducted from
an inmate’s maximum term to determine when discharge from
state custody becomes mandatory.
[13,14] As an initial matter, we note that although the UDJA
itself does not waive the State’s sovereign immunity, a declara-
tory judgment action against a state officer or agent seeking
relief from an invalid act or an abuse of authority by an offi-
cer or agent is not a suit against the State and is therefore not
barred by the principles of sovereign immunity. 22 Heist’s peti-
tion for declaratory relief named, in addition to DCS, Frakes,
Baum, and Bottorf in their official capacities as respondents,
and asserted that each was improperly “withholding the good
time implemented by LB 191 . . . by applying LB 191 Good
Time only to [TRDs] and not to [PEDs].” As such, like the
district court, we have jurisdiction to consider the merits of
Heist’s UDJA claim, which he brought as an alternative to his
APA claim. However, upon consideration of this claim, we find
no error by the district court.
22
See, Logan v. Department of Corr. Servs., 254 Neb. 646, 578 N.W.2d
44 (1998); County of Lancaster v. State, 247 Neb. 723, 529 N.W.2d 791
(1995). See, also, Burke, supra note 3.
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(a) § 83-1,107
[15,16] In considering the parties’ arguments concerning
the interpretation of § 83-1,107, we apply our familiar prin-
ciples of statutory interpretation, which we briefly review
here. Two basic principles of statutory interpretation control. 23
First, statutory language is to be given its plain and ordinary
meaning, and an appellate court will not resort to interpreta-
tion to ascertain the meaning of statutory words which are
plain, direct, and unambiguous. 24 Second, components of a
series or collection of statutes pertaining to a certain subject
matter are in pari materia and should be conjunctively consid-
ered and construed to determine the intent of the Legislature,
so that different provisions are consistent, harmonious, and
sensible. 25
[17] Ordinarily, we look no further than the text. 26 In order
for a court to inquire into a statute’s legislative history, that
statute in question must be open to construction, and a statute
is open to construction when its terms require interpretation or
may reasonably be considered ambiguous. 27
Here, like the district court, we find that § 83-1,107 unam-
biguously provides that good time reductions are deducted
from the maximum term. Subsection (2)(c) of § 83-1,107 spe-
cifically states:
The total reductions under this subsection shall be cred-
ited from the date of sentence, which shall include any
term of confinement prior to sentence and commitment
as provided pursuant to section 83-1,106, and shall be
deducted from the maximum term, to determine the date
when discharge from the custody of the state becomes
mandatory.
23
State v. McGuire, 301 Neb. 895, 921 N.W.2d 77 (2018).
24
Id.
25
Id.
26
Id.
27
Id.
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(Emphasis supplied.) Admittedly, subsection (2)(c) does not
expressly state that good time shall only be deducted from the
maximum term, and subsection (2)(b) uses the word “term”—
rather than “maximum term”—when discussing how L.B. 191
good time may be accrued. However, contrary to Heist’s sug-
gestion, neither factor renders § 83-1,107 ambiguous.
Subsection (2)(c) of § 83-1,107 plainly states that the total
reductions shall be deducted from the maximum term. It does
not state reductions should be made from the minimum term
or the mandatory minimum term, which is tantamount to say-
ing that the reductions shall be from only the maximum term.
Moreover, subsection (2)(c) expressly states that it applies to
all “reductions under this subsection,” including those under
subsection (2)(b).
[18] The district court buttressed its conclusion regarding
the plain meaning of § 83-1,107 by referencing the statutory
canon of expressio unius est exclusio alterius, which recog-
nizes that “an expressed object of a statute’s operation excludes
the statute’s operation on all other objects unmentioned by
the statute.” 28 Specifically, it noted that § 83-1,107(2)(c)’s
provisions for deductions from the maximum term necessarily
excludes § 83-1,107(2)(b) from operating on an inmate’s mini-
mum term and, by extension, PED.
Heist maintains that this was erroneous and that the district
court should instead have adopted his interpretation, based
on the canon of in pari materia. He maintains that the district
court’s approach “creates conflict” between the various provi-
sions of the Nebraska Treatment and Corrections Act, while his
approach “harmonizes” them. 29
The district court considered Heist’s proposed interpreta-
tion based on in pari materia and properly rejected it. Heist’s
argument seems to be that because § 83-1,110(1) states that
“[e]very committed offender shall be eligible for parole when
28
Pfizer v. Lancaster Cty. Bd. of Equal., 260 Neb. 265, 272, 616 N.W.2d
326, 335 (2000).
29
Brief for appellant at 17.
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the offender has served one-half the minimum term of his or
her sentence as provided in sections 83-1,107 and 83-1,108,”
good time credit accrued under § 83-1,107(2)(b) must be con-
sidered when determining PEDs. Heist similarly maintains
that not counting L.B. 191 good time toward PEDs “creates
conflict” between §§ 83-1,107 and other provisions of the
Nebraska Treatment and Corrections Act, specifically Neb.
Rev. Stat. §§ 83-170(7) and 83-1,109 (Cum. Supp. 2020)
and 83-1,110.
[19] Heist’s arguments are unpersuasive. Section 83-170(7)
merely defines “good time” as any reduction of a sentence
granted pursuant to §§ 83-1,107 and 83-1,108 and makes
no reference to an inmate’s PED. Section 83-1,109 merely
requires DCS to manage information relevant to parole eligi-
bility, as well as good time credits, but makes no reference to
how to calculate an inmate’s PED. 30 Section 83-1,110 specifi-
cally provides that where a mandatory minimum sentence is
involved, as is the case here, an inmate’s PED is calculated
by subtracting the mandatory minimum sentence from the
court’s minimum sentence, halving the difference, and add-
ing that difference to the mandatory minimum. 31 Under these
provisions, good time reductions taken under § 83-1,107(2)(b)
would not affect an inmate’s PED unless they can be applied
to an inmate’s minimum or mandatory minimum sentence,
something which is not possible under the plain meaning
of § 83-1,107(2)(c), as we have previously discussed. Thus,
the language of § 83-1,107 can be adequately understood
when considered in pari materia with other statutes in the
Nebraska Treatment and Corrections Act. Further, although we
do not find any conflict between §§ 83-1,107 and 83-1,110,
we agree with the district court that even if conflict did exist,
the specific language of § 83-1,107(2)(c) would control over
the general language of § 83-1,110. To the extent conflict
30
See, generally, Gray v. Frakes, 311 Neb. 409, 973 N.W.2d 166 (2022).
31
State v. Castillas, 285 Neb. 174, 826 N.W.2d 255 (2013), disapproved on
other grounds, State v. Lantz, 290 Neb. 757, 861 N.W.2d 728 (2015).
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exists between two statutes, the specific statute controls over
the general. 32
Additionally, Heist directs us to Neb. Rev. Stat
§ 29-2204(6)(a) (Reissue 2016), which requires a court, when
imposing an indeterminate sentence, to advise the offender of
the time the offender will serve on his or her minimum term
before attaining parole eligibility and the time the offender will
serve on his or her maximum term before attaining mandatory
release, assuming that no good time for which the offender will
be eligible is lost. However, Heist’s argument that this statute
“assume[s] good time is used to calculate parole eligibility” is
also unpersuasive. 33 Section 29-2204(6)(a) merely requires a
court to give certain advisements to an offender when imposing
an indeterminate sentence upon that offender; it neither states
nor assumes that good time reductions are applicable to an
inmate’s minimum sentence. Thus, Heist’s assignments of error
regarding the interpretation of § 83-1,107 are without merit.
Additionally, we acknowledge that Heist urges this court
to look at the legislative history of L.B. 191 to ascertain the
Legislature’s intent and that the district court did so. However,
in order for a court to inquire into a statute’s legislative his-
tory, that statute in question must be open to construction, and
a statute is open to construction when its terms require inter-
pretation or may reasonably be considered ambiguous. 34 As
discussed above, the language of § 83-1,107 is not ambiguous
and therefore not open to construction. As such, we decline
Heist’s invitation to consider the legislative history behind
L.B. 191.
(b) Nebraska Law
Heist also maintains that the district court erred because
its interpretation of § 83-1,107 “violates” three of our earlier
32
State v. Street, 306 Neb. 380, 945 N.W.2d 450 (2020).
33
Brief for appellant at 15.
34
McGuire, supra note 23.
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decisions, “which all state good time reductions are used to
calculate PEDs.” 35 However, a closer examination of each of
these decisions reveals otherwise.
Heist first directs us to our decision in Adams v. State. 36 In
Adams, a DCS inmate brought a declaratory judgment action
against the Board of Parole, seeking a determination that
§ 83-1,110(1) unconstitutionally usurped the board’s authority
and a declaration that he was eligible for parole. 37 In discuss-
ing § 83-1,110(1), we stated, “The Legislature has declared that
‘[e]very committed offender shall be eligible for parole when
the offender has served one-half the minimum term of his or
her sentence . . . ,’ as adjusted for good time.” 38 Heist argues
that this language indicates this court’s “clear interpretation
that the one-half reduction to the minimum term is for good
time.” 39 We disagree.
First, the plain language of § 83-1,110 makes it clear that
the phrase “one-half the minimum term” refers to the point at
which an inmate shall be eligible for parole, not to a reduc-
tion in an inmate’s minimum sentence. Second, to the extent
§ 83-1,110 references good time reductions, the plain language
of the statute states that such reductions are not applicable to
a sentence imposing a mandatory minimum term, as is the
case here. Third, and most important, our opinion in Adams
discussed § 83-1,110(1) under the conditions clause of the
Nebraska Constitution. A case is not authority for any point not
necessary to be passed on to decide the case or not specifically
raised as an issue addressed by the court. 40 In other words, our
use of the phrase “as adjusted for good time” in Adams is dicta
and is not to be interpreted as meaning this court has opined
35
Brief for appellant at 16.
36
Adams v. State, 293 Neb. 612, 879 N.W.2d 18 (2016).
37
Id.
38
Id. at 618, 879 N.W.2d at 22.
39
Brief for appellant at 14.
40
Mach v. County of Douglas, 259 Neb. 787, 612 N.W.2d 237 (2000).
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that good time reductions apply to an inmate’s minimum sen-
tence or PED.
Heist also argues that the district court erred in its reliance
on Caton v. State 41 and State v. Castillas 42 to conclude that
good time reductions are not used to calculate an inmate’s
PED. We note, however, that the district court only refer-
enced Castillas and Caton to recite how PEDs and TRDs are
calculated in Nebraska. Additionally, though Heist is correct
that both cases “deal with calculating mandatory minimums
. . . and neither addresses [L.B.] 191 good time,” 43 he fails to
appreciate that those cases did not discuss L.B. 191 good time,
because the sentences at issue in those cases occurred prior
to the enactment of L.B. 191. Therefore, L.B. 191 good time
reductions would not have been available to the petitioners in
Castillas and Caton, and as such, it was not necessary for us to
discuss such reductions there.
(c) Impact of § 83-1,107(2)
Heist further argues that the district court erred in find-
ing that § 83-1,107(2) unambiguously provides that L.B. 191
good time applies only to reductions in the maximum term,
because this approach results in the “anomalous, unusual,
or absurd result” of 62 inmates currently having inverted
sentences. 44 In support of his argument, Heist points to our
decisions in Castillas and Johnson v. Kenney. 45 In Castillas,
we recognized that one of the purposes behind § 83-1,107
was to “ensure that no one would reach mandatory discharge
before reaching parole eligibility.” 46 Then, in Johnson, we
explained that it would not serve the legislative intent if a
41
Caton v. State, 291 Neb. 939, 869 N.W.2d 911 (2015).
42
Castillas, supra note 31.
43
Brief for appellant at 15.
44
Id. at 20.
45
Johnson v. Kenney, 265 Neb. 47, 654 N.W.2d 191 (2002).
46
Castillas, supra note 31, 285 Neb. at 189, 826 N.W.2d at 267.
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defendant could be mandatorily discharged before being eli-
gible for parole. 47
[20,21] In construing a statute, it is presumed that the
Legislature intended a sensible, rather than an absurd, result. 48
When possible, an appellate court will try to avoid a statu-
tory construction that would lead to an absurd result. 49 Under
the absurd results doctrine, a court may deviate from the
plain language of the statutory text if application of the plain
language would lead to manifest absurdity. 50 In that situa-
tion, a court may correct an error in a provision if failing to
do so would result in a disposition that no reasonable person
could approve. 51 However, the bar of manifest absurdity is
not easily cleared, and we have refused to apply the doctrine
if the result dictated by the plain language is not “‘so absurd
that the Legislature could not possibly have intended it.’” 52
Additionally, the absurdity must be able to be corrected by
changing or supplying a particular word or phrase whose
inclusion or omission was obviously a technical or ministe-
rial error. 53 The doctrine does not justify judicial revision of
a statute simply to make the statute more reasonable in the
judges’ view. 54
Though the current version of § 83-1,107(2)(c) makes clear
that good time is deducted only from the maximum sentence,
earlier versions of the statute had no such language. In fact,
prior to 1995, the statute specifically directed that good time
47
Johnson, supra note 45.
48
State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005).
49
Thomas v. Peterson, 307 Neb. 89, 948 N.W.2d 698 (2020).
50
Parks v. Hy-Vee, 307 Neb. 927, 951 N.W.2d 504 (2020).
51
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 234-39 (2012), citing Cernauskas v. Fletcher, 211 Ark. 678,
201 S.W.2d 999 (1947).
52
Parks, supra note 50, 307 Neb. at 945, 951 N.W.2d at 518.
53
Scalia & Garner, supra note 51.
54
Id.
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HEIST V. NEBRASKA DEPT. OF CORR. SERVS.
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was to be deducted from the minimum term to determine the
date an inmate was eligible for parole and from the maximum
term to determine when discharge from the state became man-
datory. 55 However, in 1995, the Legislature passed 1995 Neb.
Laws, L.B. 371, which explicitly removed any reference to
good time being deducted from an inmate’s minimum sentence,
as well as any reference to parole. Since 1995, § 83-1,107 has
been amended on numerous occasions, but the Legislature
has never again referred to good time being applied to reduce
an inmate’s minimum sentence. Thus, the omission of those
phrases from the statute appears intentional and not a techni-
cal or ministerial error; and the absurdity Heist complains of
cannot be corrected by simply supplying the words “minimum
sentence” or “parole eligibility date” into the language of
§ 83-1,107.
[22] Further, although L.B. 191 has caused some inmates
to incur inverted sentences, such result appears to be an unin-
tended consequence of L.B. 191. The absurd results doctrine
does not include substantive errors arising from a drafter’s
failure to appreciate the effect of certain statutory provisions. 56
Thus, conceding that the DCS interpretation of § 83-1,107(2),
of which Heist complains, has produced the allegedly absurd
result of 62 inmates with inverted sentences, this falls far short
of meeting the high bar of manifest absurdity.
We are not the only court to take this view. In Chung Fook
v. White, 57 the U.S. Supreme Court upheld a provision in the
Immigration Act of 1917, which exempted wives and children
of naturalized citizens from mandatory detention upon entering
the country if they were found to be affected with a contagious
disease, but made no such provisions for wives and children of
native-born citizens. In so doing, the Court noted the oddness
55
See § 83-1,107. See, also, Von Bokelman v. Sigler, 186 Neb. 378, 183
N.W.2d 267 (1971).
56
See Scalia & Garner, supra note 51.
57
Chung Fook v. White, 264 U.S. 443, 44 S. Ct. 361, 68 L. Ed. 781 (1924).
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of such disparate treatment, insofar as “it cannot be supposed
that Congress intended to accord to a naturalized citizen a right
and preference beyond that enjoyed by a native-born citizen.” 58
Nonetheless, it found that because the statute plainly refers to
only the wives and children of naturalized citizens, it could not
read the words “native-born citizen” into the statute without
usurping the legislative function. 59 The Court concluded that
any remedy lies with Congress, and not the courts, if the statute
unjustly discriminates against native-born citizens or is cruel or
inhuman in its results. 60
The U.S. Supreme Court has taken a similar view in other
decisions, including one decision where it specifically noted
that laws enacted with good intentions, when put to the test,
frequently, and to the surprise of the lawmaker, turn out to be
mischievous, absurd, or otherwise objectionable. 61 But in such
a case, the remedy lies with the lawmaking authority, and not
with the courts. 62
Here, L.B. 191 was enacted to allow inmates an opportunity
to earn additional good time credit. However, the application
of L.B. 191 has created inverted sentences for some inmates.
Nevertheless, because § 83-1,107(2)(c) plainly states that good
time is to be applied to reduce an inmate’s maximum sen-
tence, we cannot interpolate the words “minimum sentence” or
“parole eligibility date” without usurping the legislative func-
tion. As such, the district court did not err in failing to find
absurdity in the practical effects of L.B. 191.
VI. CONCLUSION
Policy 104.08 is not a rule or regulation for purposes of the
APA, and thus, the district court and this court lack jurisdiction
58
Id., 264 U.S. at 445.
59
Id.
60
Chung Fook, supra note 57.
61
Crooks v. Harrelson, 282 U.S. 55, 51 S. Ct. 49, 75 L. Ed. 156 (1930).
62
Id.
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over Heist’s APA claim. Moreover, the plain, direct, and unam-
biguous language of § 83-1,107 makes it clear that good time
reductions earned under this section apply to an inmate’s maxi-
mum sentence, not to an inmate’s minimum sentence and, thus,
not to an inmate’s PED. Further, to the extent Heist argues L.B.
191 has produced an unintended result, the resolution of such
unintended result is within the province of the Legislature, not
with this court. Accordingly, Heist’s assignments of error are
without merit.
Affirmed.
Freudenberg, J., not participating. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487119/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/18/2022 08:06 AM CST
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MILLARD GUTTER CO. V. FARM BUREAU PROP. & CAS. INS. CO.
Cite as 312 Neb. 629
Millard Gutter Company, a corporation
doing business as Millard Roofing and
Gutter, appellant, v. Farm Bureau
Property & Casualty Insurance
Company, appellee.
___ N.W.2d ___
Filed October 14, 2022. No. S-19-1089.
1. Motions to Dismiss: Pleadings: Appeal and Error. A district court’s
grant of a motion to dismiss on the pleadings is reviewed de novo by
an appellate court, accepting the factual allegations in the complaint as
true and drawing all reasonable inferences of law and fact in favor of the
nonmoving party.
2. Actions: Parties: Standing: Judgments: Jurisdiction: Appeal and
Error. Whether a party who commences an action has standing and is
therefore the real party in interest presents a jurisdictional issue. When a
jurisdictional question does not involve a factual dispute, determination
of the issue is a matter of law which requires an appellate court to reach
a conclusion independent from the trial court.
3. Pleadings: Appeal and Error. An order of the district court requiring a
complaint to be made more definite will be sustained on appeal unless it
clearly appears that the court abused its discretion.
4. Judges: Words and Phrases. A judicial abuse of discretion exists when
the reasons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just results in mat-
ters submitted for disposition.
5. Standing: Jurisdiction: Parties. Standing is a jurisdictional component
of a party’s case, and courts must address it as a threshold matter.
6. Motions to Dismiss: Jurisdiction: Pleadings. When a motion to dis-
miss raises both subject matter jurisdiction and failure to state a claim
as grounds for dismissal, the court should consider the jurisdictional
grounds first and should consider whether the complaint states a claim
for relief only if it has determined that it has subject matter jurisdiction.
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7. Standing: Pleadings: Evidence: Words and Phrases. When standing
is challenged at the pleadings stage, before an evidentiary hearing and
before any evidence outside of the pleadings is admitted, it is deemed a
facial challenge.
8. Standing: Pleadings: Proof. When considering a facial challenge to
standing, the trial court will typically review only the pleadings to
determine whether the plaintiff has alleged sufficient facts to estab-
lish standing.
9. Insurance: Parties: Standing. Only a policyholder has standing to
bring a first‑party bad faith claim against an insurer.
10. Torts: Assignments. The proceeds from personal injury tort actions may
be validly assigned, but the right to prosecute the tort action cannot.
11. ____: ____. The right to prosecute a tort action for first‑party bad faith
cannot be validly assigned.
12. Pleadings: Rules of the Supreme Court. The purpose of a motion for a
more definite statement under Neb. Ct. R. Pldg. § 6‑1112(e) is to enable
movants to obtain the information reasonably needed to frame a respon-
sive pleading.
13. Pleadings: Rules of the Supreme Court: Pretrial Procedure. Motions
for a more definite statement under Neb. Ct. R. Pldg. § 6‑1112(e) should
not be used as a substitute for discovery; but if additional detail is
needed to make a vague complaint intelligible, or to enable the movant
to determine the availability of an affirmative defense, the fact that such
detail can be obtained through discovery should not preclude providing
it in response to a motion for a more definite statement, so long as the
detail is reasonably needed to frame a responsive pleading.
14. Pleadings: Rules of the Supreme Court. One moving for a more
definite statement under Neb. Ct. R. Pldg. § 6‑1112(e) must identify the
alleged deficiencies in the pleading, specify the details being requested,
and assert the inability to prepare a responsive pleading without the
requested details. These requirements are designed to enable the trial
court to test the propriety of the motion so that an order can be entered
consistent with the limited purpose of such motions.
15. ____: ____. Motions for more definite statements under Neb. Ct. R.
Pldg. § 6‑1112(e) are addressed to the sound discretion of the trial court.
16. Pleadings: Dismissal and Nonsuit: Time. The failure to file an
amended pleading within the time specified by the court’s order is a
basis for dismissing the action without prejudice under Neb. Rev. Stat.
§ 25‑601(5) (Reissue 2016). Not only may a court sua sponte dismiss an
action without prejudice under § 25‑601(5), but a defendant may file a
motion to dismiss under that subsection.
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MILLARD GUTTER CO. V. FARM BUREAU PROP. & CAS. INS. CO.
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17. Courts: Dismissal and Nonsuit. In addition to the statutory authority
under Neb. Rev. Stat. § 25‑601 (Reissue 2016), trial courts have the
inherent authority to dismiss an action for violation of a court order.
18. Pleadings: Rules of the Supreme Court: Dismissal and Nonsuit:
Time. When an order to make more definite is not obeyed within
the time fixed by the court, Neb. Ct. R. Pldg. § 6‑1112(e) authorizes
a trial court to strike the pleading or make such order as it deems
just. Dismissal is an available sanction under such a provision and is
reviewed for an abuse of discretion.
Petition for further review from the Court of Appeals,
Pirtle, Chief Judge, and Moore and Riedmann, Judges, on
appeal thereto from the District Court for Douglas County,
Kimberly Miller Pankonin, Judge. Judgment of Court of
Appeals affirmed in part, and in part reversed and remanded
with directions.
Theodore R. Boecker, Jr., of Boecker Law, P.C., L.L.O., for
appellant.
Michael T. Gibbons and Raymond E. Walden, of Woodke &
Gibbons, P.C., L.L.O., for appellee.
Heavican, C.J., Miller‑Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
In connection with a 2013 storm, Millard Gutter Company
(Millard Gutter) obtained assignments of the right to insur-
ance proceeds due under policies issued by Farm Bureau
Property & Casualty Insurance Company (Farm Bureau).
Millard Gutter then filed suit against Farm Bureau in its own
name, as assignee, seeking to recover damages for breach of
the insurance contracts and for first‑party bad faith in fail-
ing to settle the insurance claims. In response to preanswer
motions, the district court dismissed the claims of first‑party
bad faith for lack of standing and ordered Millard Gutter to
file an amended complaint providing additional detail on the
remaining claims. When no amended complaint was filed, the
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MILLARD GUTTER CO. V. FARM BUREAU PROP. & CAS. INS. CO.
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court sua sponte entered an order dismissing the entire action
without prejudice.
Millard Gutter appealed, and the Nebraska Court of Appeals
reversed. 1 We granted Farm Bureau’s petition for further
review. Consistent with our opinion released today in Millard
Gutter Co. v. Shelter Mut. Ins. Co. (Shelter), 2 we now in part
reverse the Court of Appeals’ decision and remand the matter
to the Court of Appeals with directions to affirm the district
court’s dismissal of the first‑party bad faith claims for lack
of standing. We otherwise affirm the decision of the Court
of Appeals.
I. BACKGROUND
1. Original Complaint and
Preanswer Motions
On April 9, 2018, Millard Gutter filed a complaint against
Farm Bureau in the district court for Douglas County. The
complaint alleged that Millard Gutter was bringing the action
as “the assignee of various insured property owners, who pur-
chased insurance from [Farm Bureau].” Without identifying the
policyholders or the policies, the complaint alleged that “due
to a storm occurring in 2013,” various property owners sus-
tained property loss that was covered under the Farm Bureau
policies. It alleged that the property owners “assigned their
right to any proceeds under policies of insurance” to Millard
Gutter. The assignments were not attached to the complaint,
and neither the date of the storm nor the dates of the assign-
ments were alleged.
According to the complaint, Farm Bureau was given cop-
ies of the assignments, and claims were made for insurance
proceeds owed under the policies. The complaint alleged that
Farm Bureau “breached the policies by failing to pay Millard
1
Millard Gutter Co. v. Farm Bureau Prop. & Cas. Ins. Co., 29 Neb. App.
678, 958 N.W.2d 440 (2021).
2
Millard Gutter Co. v. Shelter Mut. Ins. Co., ante p. 606, ___ N.W.2d ___
(2022).
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[Gutter] all benefits due and owing under the policies.” It also
alleged that Farm Bureau “wrongfully retained money due
to Millard [Gutter] and engaged in an unreasonable delay of
payment” and that “[a]s a direct and proximate result of the
bad faith conduct of Farm Bureau,” Millard Gutter sustained
harm. The complaint sought general and special damages in
an unspecified amount, as well as attorney fees and prejudg-
ment interest.
Farm Bureau responded to the complaint by filing several
preanswer motions, none of which were included in the appel-
late record. However, as relevant to the issues on appeal, other
portions of the record indicate that Farm Bureau filed (1) a
motion to dismiss the bad faith claims for lack of standing and
(2) a motion for a more definite statement regarding the breach
of contract claims.
2. Amended Complaint
On the same day the hearing was held on Farm Bureau’s
preanswer motions, Millard Gutter filed an amended complaint.
Our record indicates that all of Farm Bureau’s preanswer
motions were deemed to relate to the amended complaint. The
amended complaint was nearly identical to the original com-
plaint, except it identified, by name and street address, 20 Farm
Bureau policyholders in Omaha, Nebraska. It alleged these
policyholders suffered property damage in a hailstorm occur-
ring on April 9, 2013, after which they “assigned their right to
any proceeds under policies of insurance” to Millard Gutter “in
consideration for [Millard Gutter’s] agreeing to perform nec-
essary repair work, which was accomplished . . . thereafter.”
None of the assignments were attached.
3. Hearing and Order on
Preanswer Motions
Our appellate record does not include the bill of exceptions
from the hearing held on Farm Bureau’s preanswer motions. As
such, the arguments advanced by the parties can be discerned
only to the extent they are referenced in the court’s written
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order ruling on the motions. That order does not reference any
evidence adduced at the hearing, so we necessarily assume the
court confined its analysis to the face of the amended com-
plaint. We limit our review accordingly.
(a) Standing to Assert First‑Party
Bad Faith Claims
Farm Bureau moved to dismiss the first‑party bad faith
claims for lack of standing. According to the written order,
Farm Bureau argued that Millard Gutter lacked standing to
assert first‑party bad faith claims because (1) only policyhold-
ers have standing to assert first‑party bad faith claims under
Nebraska law and (2) the assignments did not create standing
to assert claims of first‑party bad faith because, even if such
claims could be validly assigned, the complaint contained
no factual allegations suggesting the assignments from Farm
Bureau’s policyholders included a present interest in such
claims. Farm Bureau also argued the complaint contained
insufficient factual allegations to state claims for first‑party
bad faith.
The district court’s order addressed only the standing argu-
ments. First, it recited the rule from Braesch v. Union Ins. Co. 3
that only policyholders have standing to assert a first‑party bad
faith claim. Because Millard Gutter had not alleged it was a
Farm Bureau policyholder, the district court concluded Millard
Gutter lacked “standing to assert a traditional first‑party bad
faith claim” under Nebraska law.
Next, the court considered whether Millard Gutter had suffi-
ciently alleged standing, as an assignee, to assert first‑party bad
faith claims against Farm Bureau. It observed that this court
“has not explicitly ruled on the assignability of bad faith claims
nor on the requirements for such an assignment,” and it also
observed the general rule that only a “‘present interest’” can
3
Braesch v. Union Ins. Co., 237 Neb. 44, 464 N.W.2d 769 (1991),
disapproved on other grounds, Wortman v. Unger, 254 Neb. 544, 578
N.W.2d 413 (1998).
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be validly assigned. 4 It then examined the face of the amended
complaint and noted allegations that the right to “proceeds
under policies of insurance” had been assigned, but it found
no allegations suggesting that any policyholder had a present
interest in a tort action for first‑party bad faith, or had assigned
such an interest to Millard Gutter. The court therefore con-
cluded that Millard Gutter had not sufficiently alleged it had
standing to assert any first‑party bad faith claims as assignee,
and it dismissed such claims without prejudice.
(b) Motion for More Definite Statement
According to the district court’s order, Farm Bureau’s motion
to make more definite was directed only to the breach of con-
tract claims. The court granted that motion, stating:
Farm Bureau also seeks an order requiring Millard
Gutter to make a more definite and certain statement as
to the date of the alleged breaches of contract so that
Farm Bureau can assess any potential statute of limita-
tions defenses. This motion is sustained. Millard Gutter
is ordered to file [a second] amended complaint within
30 days from the date this order is filed including a more
definite statement as to when the alleged breach of con-
tract is claimed to have occurred as to each insured.
It is undisputed that Millard Gutter did not file a second
amended complaint within 30 days or at any other point during
the pendency of the case.
4. Sua Sponte Order of Dismissal
In October 2019, almost 6 months after ordering Millard
Gutter to file a second amended complaint, the court entered
4
See, Krohn v. Gardner, 248 Neb. 210, 533 N.W.2d 95 (1995) (holding
assignment must transfer present interest in debt, fund, or subject matter);
Craig v. Farmers Mut. Ins. Co., 239 Neb. 271, 273, 476 N.W.2d 529, 532
(1991) (holding transaction is assignment only when assignor intends “‘to
transfer a present interest in the debt or fund or subject matter’”). See,
also, Neb. Rev. Stat. § 25‑304 (Reissue 2016) (“[a]ssignees of choses
in action assigned for the purpose of collection may sue on any claim
assigned in writing”).
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MILLARD GUTTER CO. V. FARM BUREAU PROP. & CAS. INS. CO.
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an order, sua sponte, dismissing the entire action without preju-
dice. In doing so, the order recited the procedural history of the
case, and it noted that Millard Gutter had been ordered to file
a second amended complaint and had failed to do so within the
time fixed by the court. 5 Millard Gutter did not move to vacate
the dismissal and reinstate the case, and instead, it timely
appealed from the order of dismissal.
5. Court of Appeals
Before the Court of Appeals, Millard Gutter assigned,
restated, that the district court erred by (1) dismissing the
first‑party bad faith claims for lack of standing, (2) granting
the motion to make more definite and ordering Millard Gutter
to file a second amended complaint alleging the dates of the
alleged breaches of contract, and (3) sua sponte dismissing the
amended complaint without notice or a hearing.
In its analysis, the Court of Appeals agreed with the district
court that because Millard Gutter was not a policyholder and
had no contractual relationship with Farm Bureau, it lacked
standing under Braesch to assert a “traditional first‑party bad
faith claim against Farm Bureau.” 6 It also agreed with the
district court that, to the extent Millard Gutter was claiming
it had standing to assert the bad faith claims by virtue of the
assignments, no Nebraska appellate court had yet “ruled on
the assignability of bad faith claims or on the requirements for
such an assignment.” 7 But the Court of Appeals determined it
was not necessary to conclusively decide the assignability issue
in this case, reasoning that under Nebraska’s liberal notice
pleading standards, Millard Gutter had stated a plausible claim
for first‑party bad faith. It ultimately determined the allegations
5
See, generally, Neb. Rev. Stat. § 25‑601 (Reissue 2016) (“action may
be dismissed without prejudice to a future action . . . by the court for
disobedience by the plaintiff of an order concerning the proceedings in the
action”).
6
Millard Gutter Co., supra note 1, 29 Neb. App. at 683, 958 N.W.2d at 445.
7
Id.
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MILLARD GUTTER CO. V. FARM BUREAU PROP. & CAS. INS. CO.
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of the amended complaint were sufficient to withstand a motion
to dismiss, reasoning:
Upon our de novo review, accepting the allegations in
the amended complaint as true and drawing all reasonable
inferences in favor of Millard Gutter, we determine that
for the purposes of a motion to dismiss, Millard Gutter
has sufficiently pled a bad faith claim under Nebraska
law. The amended complaint specifically alleges that
Farm Bureau failed to make payments for the insureds’
losses, failed to recognize the validity of the assignments,
and failed to act in good faith. These pleadings are suf-
ficient to give Farm Bureau fair notice of the claims
asserted against it. . . .
The district court correctly ascertained that at this point
in the case, it is unclear whether the alleged assignments
to Millard Gutter specifically include any tort claims or
interest in the homeowners’ insurance policies. However,
this information can be determined during the discov-
ery process. If at some point in the future, Farm Bureau
learns that some or all of the insureds at issue did not
validly assign to Millard Gutter the right to pursue bad
faith tort claims related to their insurance policies, then an
appropriate motion may be filed at that time.
Therefore, we conclude that the district court erred in
granting Farm Bureau’s motion to dismiss the bad faith
claims. 8
The Court of Appeals also found merit in Millard Gutter’s
second assignment of error, which argued the district court
abused its discretion by requiring Millard Gutter to amend the
complaint to specify the dates on which the alleged breaches of
contract occurred. The Court of Appeals disagreed with the dis-
trict court’s conclusion that the additional detail was necessary
to allow Farm Bureau to identify potential statute of limitations
defenses when framing its responsive pleading. It noted the
8
Id. at 684, 958 N.W.2d at 445‑46.
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limitations period for breach of contract claims is 5 years, 9 and
Millard Gutter’s operative complaint alleged the storm dam-
age occurred on April 9, 2013. Millard Gutter’s lawsuit was
filed on April 9, 2018‑‑exactly 5 years after the alleged storm
damage occurred. Reasoning that none of the alleged breaches
could possibly have occurred before the storm, the Court of
Appeals concluded that no breach would “fall outside the stat-
ute of limitations period.” 10 It thus determined the district court
had abused its discretion in granting the motion to make more
definite and requiring Millard Gutter to file an amended com-
plaint identifying the dates on which Farm Bureau breached the
insurance agreements.
Because of its disposition on Millard Gutter’s first two
assignments of error, the Court of Appeals deemed it unnec-
essary to consider the final assignment of error. It therefore
reversed the district court’s order and remanded the matter for
further proceedings consistent with its opinion.
We granted Farm Bureau’s petition for further review and
ordered supplemental briefing at the discretion of the parties.
Only Farm Bureau filed a supplemental brief.
II. ASSIGNMENTS OF ERROR
On further review, Farm Bureau assigns, restated, that the
Court of Appeals erred in (1) reversing the district court’s dis-
missal of Millard Gutter’s bad faith claims for lack of stand-
ing and (2) finding it was an abuse of discretion to grant the
motion for a more definite statement regarding the dates of the
alleged breaches of the insurance contracts.
III. STANDARD OF REVIEW
[1] A district court’s grant of a motion to dismiss on the
pleadings is reviewed de novo by an appellate court, accepting
the factual allegations in the complaint as true and drawing all
9
See Neb. Rev. Stat. § 25‑205 (Reissue 2016).
10
Millard Gutter Co., supra note 1, 29 Neb. App. at 686, 958 N.W.2d at 446.
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reasonable inferences of law and fact in favor of the nonmov-
ing party. 11
[2] Whether a party who commences an action has standing
and is therefore the real party in interest presents a jurisdic-
tional issue. 12 When a jurisdictional question does not involve
a factual dispute, determination of the issue is a matter of law
which requires an appellate court to reach a conclusion inde-
pendent from the trial court. 13
[3,4] An order of the district court requiring a complaint to
be made more definite will be sustained on appeal unless it
clearly appears that the court abused its discretion. 14 A judicial
abuse of discretion exists when the reasons or rulings of a trial
judge are clearly untenable, unfairly depriving a litigant of a
substantial right and denying just results in matters submitted
for disposition. 15
IV. ANALYSIS
1. Standing to Assert Claim
of First‑Party Bad Faith
When reviewing the district court’s dismissal of the
first‑party bad faith claims, the Court of Appeals focused on
whether Millard Gutter’s amended complaint alleged a plau-
sible claim of first‑party bad faith under Nebraska’s liberal
notice pleading rules. But we begin our analysis by focusing on
whether Millard Gutter is the real party in interest with stand-
ing to assert such a claim.
11
SID No. 67 v. State, 309 Neb. 600, 961 N.W.2d 796 (2021).
12
See Valley Boys v. American Family Ins. Co., 306 Neb. 928, 947 N.W.2d
856 (2020).
13
Id.
14
See Christianson v. Educational Serv. Unit No. 16, 243 Neb. 553, 501
N.W.2d 281 (1993).
15
George Clift Enters. v. Oshkosh Feedyard Corp., 306 Neb. 775, 947
N.W.2d 510 (2020).
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MILLARD GUTTER CO. V. FARM BUREAU PROP. & CAS. INS. CO.
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[5,6] Standing is a jurisdictional component of a party’s
case, and courts must address it as a threshold matter. 16 When a
motion to dismiss raises both lack of subject matter jurisdiction
and failure to state a claim as grounds for dismissal, the court
should consider the jurisdictional grounds first and should con-
sider whether the complaint states a claim for relief only if it
has determined that it has subject matter jurisdiction. 17 In other
words, before considering whether Millard Gutter sufficiently
pled claims of first‑party bad faith, we must first determine
whether Millard Gutter is the proper party to assert such claims
under the substantive law. 18
[7,8] As noted, Farm Bureau’s challenge to Millard Gutter’s
standing was raised and resolved at the pleading stage. When
standing is challenged at the pleadings stage, before an evi-
dentiary hearing and before any evidence outside of the plead-
ings is admitted, it is deemed a “‘facial challenge.’” 19 When
considering a facial challenge to standing, the trial court will
typically review only the pleadings to determine whether the
plaintiff has alleged sufficient facts to establish standing. 20
When the Court of Appeals issued its opinion in this case,
it did not have the benefit of our recent decision in Shelter. 21
In that case, as in this one, Millard Gutter obtained assignments
of the right to insurance proceeds from various policyholders,
and then it filed suit against the insurer in its own name, as
16
See, Continental Resources v. Fair, 311 Neb. 184, 971 N.W.2d 313 (2022);
In re Guardianship of Nicholas H., 309 Neb. 1, 958 N.W.2d 661 (2021);
Egan v. County of Lancaster, 308 Neb. 48, 952 N.W.2d 664 (2020).
17
See, SID No. 67, supra note 11; Anderson v. Wells Fargo Fin. Accept., 269
Neb. 595, 694 N.W.2d 625 (2005).
18
See Egan, supra note 16. See, also, Neb. Ct. R. Pldg. § 6‑1109(a) (rev.
2008) (“[i]t is not necessary to aver the capacity . . . or the authority of a
party to sue . . . except to the extent required to show the jurisdiction of
the court”).
19
SID No. 67, supra note 11, 309 Neb. at 606, 961 N.W.2d at 802.
20
Id.
21
Shelter, supra note 2.
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assignee, seeking to recover damages for breaches of the insur-
ance contracts and for first‑party bad faith in failing to settle
the insurance claims. The district court in Shelter dismissed
the bad faith claims for lack of standing, and we affirmed that
dismissal on appeal.
[9] In Shelter, we noted that under Nebraska case law, only
a policyholder has standing to bring a first‑party bad faith
claim. 22 Millard Gutter did not claim to be a policyholder;
instead, it asserted that it had standing to bring the first‑party
bad faith claims by virtue of the postloss assignments from the
policyholders. We thus framed the issue in Shelter as whether a
policyholder could validly assign, to a policyholder, a cause of
action for the tort of first‑party bad faith. To answer that ques-
tion, we turned to our case law governing the assignability of
tort claims generally.
[10,11] Shelter explained that under the rule announced in
Mutual of Omaha Bank v. Kassebaum, 23 the proceeds from per-
sonal injury tort actions may be validly assigned, but the right
to control such an action cannot. Applying this rule in Shelter,
we held that even assuming without deciding that the proceeds
from a cause of action for first‑party bad faith could be validly
assigned, the right to prosecute such an action could not. 24 As
such, the policyholders in Shelter remained the real parties
in interest under the substantive law and were the only ones
with standing to assert claims of first‑party bad faith against
the insurer.
Here, just as in Shelter, regardless of their validity for other
purposes, the assignments from Farm Bureau’s policyholders
could not, as a matter of law, give Millard Gutter standing
to prosecute any tort actions for first‑party bad faith against
Farm Bureau. We thus agree with the district court that Millard
22
See Braesch, supra note 3.
23
Mutual of Omaha Bank v. Kassebaum, 283 Neb. 952, 814 N.W.2d 731
(2012).
24
Shelter, supra note 2.
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Gutter’s amended complaint did not contain sufficient factual
allegations to establish that it was the real party in interest with
standing to assert the first‑party bad faith claims. We reverse
the Court of Appeals’ decision on this issue and remand the
matter with directions to affirm the district court’s dismissal of
the first‑party bad faith claims for lack of standing.
2. More Definite Statement on
Breach of Contract Claims
On further review, Farm Bureau also argues the Court of
Appeals erred when it found the district court abused its dis-
cretion by sustaining the motion for a more definite statement.
Motions for a more definite statement are governed by Neb. Ct.
R. Pldg. § 6‑1112(e), which states:
If a pleading to which a responsive pleading is permitted
is so vague or ambiguous that a party cannot reasonably
be required to frame a responsive pleading, the party
may move for a more definite statement before interpos-
ing a responsive pleading. The motion shall point out
the defects complained of and the details desired. If the
motion is granted and the order of the court is not obeyed
within 10 days or within such time as the court may fix,
the court may strike the pleading or make such order as
it deems just.
[12,13] The purpose of a motion for a more definite state-
ment is to enable movants to obtain the information reason-
ably needed to frame a responsive pleading. 25 Motions for a
more definite statement should not be used as a substitute for
discovery; but if additional detail is needed to make a vague
complaint intelligible, or to enable the movant to determine the
availability of an affirmative defense, the fact that such detail
can be obtained through discovery should not preclude provid-
ing it in response to a motion for a more definite statement,
25
See, 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1376 (3d ed. 2004 & Supp. 2022); John P. Lenich, Nebraska
Civil Procedure § 11:10 (2022).
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so long as the detail is reasonably needed to frame a respon-
sive pleading. 26
[14,15] One moving for a more definite statement must
identify the alleged deficiencies in the pleading, specify the
details being requested, and assert the inability to prepare
a responsive pleading without the requested details. 27 These
requirements are designed to enable the trial court to test the
propriety of the motion so that an order can be entered consist
ent with the limited purpose of such motions. 28 Motions for
more definite statements are addressed to the sound discretion
of the trial court. 29
As noted, Farm Bureau’s motion for a more definite state-
ment was not included in our appellate transcript and no party
requested preparation of a bill of exceptions. All we have avail-
able to review is the district court’s written order, which recited
that Farm Bureau’s motion sought “a more definite and certain
statement as to the date of the alleged breaches of contract so
that Farm Bureau can assess any potential statute of limitations
defenses.” To the extent Farm Bureau may have identified
other deficiencies in its motion, or offered other reasons during
the hearing for why it needed to know the dates of the alleged
breaches to frame a responsive pleading, such matters are out-
side the limited record presented for our review.
On this record, the Court of Appeals concluded the district
court abused its discretion by ordering Farm Bureau to amend
the complaint within 30 days to provide “a more definite state-
ment as to when the alleged breach of contract is claimed to
have occurred as to each insured.” It reasoned that even with-
out the additional detail requested, Farm Bureau could assess
any potential statute of limitations defenses because the earli-
est date that any of the breach of contract claims could have
26
See, id.
27
See 5C Wright & Miller, supra note 25, § 1378.
28
Id.
29
Vodehnal v. Grand Island Daily Independent, 191 Neb. 836, 218 N.W.2d
220 (1974).
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accrued was the date of the storm that caused the property
damage (alleged to be April 9, 2013, as to each policyholder),
and suit was filed within 5 years of that date. As such, the
Court of Appeals concluded that even though Millard Gutter’s
breach of contract claims may span a period of several years,
none of those claims could have accrued more than 5 years
before suit was commenced.
We agree with the Court of Appeals that the allegations of
the amended complaint were sufficient to allow Farm Bureau
to assess whether it had a statute of limitations defense to the
breach of contract claims. Our record on appeal does not con-
tain any other rationale advanced for requiring Millard Gutter
to file a second amended complaint specifying the dates of the
alleged breaches. We thus agree it was an abuse of discretion to
sustain the motion for a more definite statement on the grounds
the additional detail was necessary for Farm Bureau to frame a
responsive pleading. Farm Bureau’s arguments to the contrary
are without merit.
3. Millard Gutter’s Remaining
Assignment of Error
Before the Court of Appeals, Millard Gutter assigned error
to the district court’s sua sponte dismissal of the entire action.
The Court of Appeals declined to consider this assignment,
reasoning that its disposition of the other assignments of error
made it unnecessary.
On further review, we have discretion to consider, as we
deem appropriate, some or all of the assignments of error the
Court of Appeals did not reach. 30 We think it is appropriate to
briefly address the dismissal order and to reverse it in part to
facilitate further proceedings on remand.
As we read the sua sponte dismissal order, it was premised
exclusively on Millard Gutter’s failure to obey the order to
make more definite within the time fixed by the court, and it
dismissed the entire action on that basis. To the extent Millard
30
See Signal 88 v. Lyconic, 310 Neb. 824, 969 N.W.2d 651 (2022).
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Gutter argues on appeal that trial courts lack the authority
to sua sponte dismiss a case under such circumstances, it
is incorrect.
[16‑18] The failure to file an amended pleading within the
time specified by the court’s order is a basis for dismissing the
action without prejudice under § 25‑601(5). 31 We have stated
that not only may a court sua sponte dismiss an action without
prejudice under § 25‑601(5), but a defendant may file a motion
to dismiss under that subsection, too. 32 And in addition to the
statutory authority under § 25‑601, we have long recognized
that courts have inherent authority to dismiss an action for vio-
lation of a court order. 33 Moreover, § 6‑1112(e) of the pleading
rules authorizes a trial court to “strike the pleading or make
such order as it deems just” if an order to make more definite
is not obeyed within the time fixed by the court. Dismissal is
generally considered an available sanction under such a provi-
sion and is reviewed for an abuse of discretion. 34
The available sanctions for failing to comply with an order
to make more definite are well established and well known
to the practicing bar. A party who ignores such an order and
takes no further action in the case, allowing it to languish on
the court’s docket, risks the possibility that such conduct may
result in sua sponte dismissal of the case as a sanction for the
31
See Bert Cattle Co. v. Warren, 238 Neb. 638, 471 N.W.2d 764 (1991).
32
Id.
33
Id. at 641‑42, 471 N.W.2d at 767 (internal quotation marks omitted)
(“[i]t has almost universally been held or recognized that courts have the
inherent power to dismiss an action for disobedience of a court order. . . .
Without this right, a court could not control its dockets; business before
it would become congested; its functions would be impaired; and speedy
justice to litigants would largely be denied”).
34
See, Shelter, supra note 2. See, also, Nystrom v. Melcher, 262 Mont. 151,
864 P.2d 754 (1993); Clay v. City of Margate, 546 So. 2d 434 (Fla. App.
1989); Medved v. Baird, 58 Wis. 2d 563, 207 N.W.2d 70 (1973). Accord,
5C Wright & Miller, supra note 25, § 1379 (noting when complaint is
stricken as sanction for failure to obey order to make more definite, it has
effect of dismissing action).
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failure to obey a court order or for the failure to prosecute
the action. 35
But on this record, we have determined it was an abuse
of discretion to sustain the motion for a more definite state-
ment in the first instance. So, although we do not condone or
excuse Millard Gutter’s conduct in ignoring the court’s order
for nearly 6 months rather than timely advising the court and
opposing counsel that it was electing to stand on its amended
complaint, we are persuaded it is appropriate under the cir-
cumstances to reverse the order of dismissal to the extent it
was imposed as a sanction for failing to obey the order to
make more definite. This reversal impacts only the breach
of contract claims alleged in the amended complaint and
facilitates remand of those claims for further proceedings. For
the reasons stated earlier, the district court’s dismissal of the
first‑party bad faith claims for lack of standing was correct and
should be affirmed.
V. CONCLUSION
Because Millard Gutter lacks standing to assert first‑party
bad faith claims against Farm Bureau, we reverse the Court of
Appeals’ decision in that regard and remand the matter to the
Court of Appeals with directions to affirm the district court’s
dismissal of such claims based on lack of standing. We further
direct the Court of Appeals to reverse the district court’s dis-
missal as to the breach of contract claims only. We otherwise
affirm the Court of Appeals’ decision.
Affirmed in part, and in part reversed
and remanded with directions.
35
See, e.g., Link v. Wabash Railroad Co., 370 U.S. 626, 633, 82 S. Ct.
1386, 8 L. Ed. 2d 734 (1962) (noting state and federal courts have long
recognized trial courts’ inherent authority to sua sponte dismiss complaints
for failure to prosecute, and under appropriate circumstances court “may
dismiss a complaint for failure to prosecute even without affording notice
of its intention to do so or providing an adversary hearing before acting.
Whether such an order can stand on appeal depends not on power but on
whether it was within the permissible range of the court’s discretion”). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350255/ | Gutierrez v Gutierrez (2022 NY Slip Op 07393)
Gutierrez v Gutierrez
2022 NY Slip Op 07393
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: PERADOTTO, J.P., LINDLEY, CURRAN, BANNISTER, AND MONTOUR, JJ.
947 CA 22-00008
[*1]TAMARA LEIGH GUTIERREZ, PLAINTIFF-RESPONDENT,
vWILLIAM MICHAEL GUTIERREZ, DEFENDANT-APPELLANT.
JAMES P. RENDA, BUFFALO, FOR DEFENDANT-APPELLANT.
RUPP BAASE PFALZGRAF CUNNINGHAM LLC, WILLIMASVILLE (MICHAEL J. COLLETTA OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Appeal from an order of the Supreme Court, Niagara County (Richard C. Kloch, Sr., A.J.), entered November 8, 2021. The order directed defendant to pay maintenance to plaintiff.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350360/ | Affirmed and Memorandum Opinion filed December 22, 2022.
In The
Fourteenth Court of Appeals
NO. 14-22-00584-CV
IN THE INTEREST OF K.L. AND C.L., CHILDREN
On Appeal from the 315th District Court
Harris County, Texas
Trial Court Cause No. 2020-01646J
MEMORANDUM OPINION
The trial court terminated Mother’s parental rights to her children, Kate and
Caleb,1 on three predicate grounds, including endangerment by conduct. See Tex.
Fam. Code Ann. § 161.001(b)(1)(D), (E), (O). The trial court also found that
termination of Mother’s parental rights was in the children’s best interest and
appointed the Department of Family and Protective Services (the “Department”) as
the children’s sole managing conservator.
1
We use pseudonyms to refer to the children, parents, and other family members
involved in this case. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8(b)(2).
On appeal, Mother challenges the sufficiency of the evidence supporting the
trial court’s predicate and best-interest findings. Mother also challenges the trial
court’s failure to appoint her as the children’s possessory conservator. Because we
conclude sufficient evidence supports the trial court’s endangering conduct and
best-interest findings, as well as its failure to appoint Mother as a possessory
conservator, we affirm the trial court’s final order.
BACKGROUND
In August 2020, the Department filed a petition requesting that the trial court
order Mother and Father to participate in a family service plan. Approximately 15
months later, the Department filed a “First Amended Petition for Protection of a
Child for Conservatorship, and for Termination in Suit Affecting the Parent-Child
Relationship,” requesting that the trial court (1) terminate Mother’s and Father’s
parental rights with respect to Kate and Caleb, and (2) appoint the Department as
the children’s sole managing conservator. The parties proceeded to a bench trial in
May 2022.
I. Evidence at Trial
Nine witnesses testified at the bench trial; we summarize the relevant
portions of their testimony below.
Symone Jones
Jones is employed by the Department and worked as “the family-based
safety services worker for the majority of [Mother’s and Father’s] case.” Jones
said the Department received an intake report in June 2019, which alleged bruising
on Mother’s oldest son.2 The Department recommended that Mother and Father
2
The Department has not filed suit to terminate Mother’s parental rights with respect to
her oldest son.
2
complete a family service plan. At the time this investigation began, Kate was two
years old and Caleb was 20 months.
Jones said that Mother had a “substantial CPS[3] history” that began years
before the underlying June 2019 investigation. According to Jones, Mother has
been involved in six CPS investigations; the first investigation concerned Mother’s
oldest son, who was born in 2014. Discussing this investigation, Jones said
Mother tested positive for methamphetamines while she was pregnant and her son
also tested positive for methamphetamines when he was born. Jones said the
investigation was not completed because Mother “was moving around during that
time.” According to Jones, Mother “would move to different counties and homes
to get another CPS worker and kind of get lost in the midst of it.” Another
investigation was initiated several months later, when it was alleged that Mother
was not providing necessary medical care to her oldest son.
Jones said Mother’s next CPS investigation was initiated in May 2017 and
culminated in Mother’s oldest son and Kate being removed from her care.
According to Jones, Mother was pregnant with Caleb at this time and the
Department was concerned that Mother again was using methamphetamines.
Jones said Mother and Father completed their prescribed family service plan and
the children were returned to them in September 2018.
Jones said the fourth CPS investigation began in October 2017, when Caleb
was born. According to Jones, Mother admitted using methamphetamines while
pregnant with Caleb. The fifth CPS investigation was initiated in December 2018,
shortly after Mother’s oldest son and Kate were returned to her care. Jones said
the investigation began after Father was videotaped using a controlled substance
3
“CPS” refers to Child Protective Services.
3
while Mother’s oldest son was in the room. Jones agreed that Mother “should have
known” that Father was using drugs while her oldest son was staying with him.
After the current investigation was initiated in June 2019, Jones said Mother
and Father “were slightly engaged in their services, but they weren’t making their
appointments regularly.” Jones said Mother was arrested in Oklahoma in
September 2019, for larceny, assault, and trespassing. Jones agreed that Kate and
Caleb were in Mother’s care at this time; Jones did not know where the children
were when Mother was arrested.
Jones said the Department continued to work with Mother to complete her
family service plan after her Oklahoma arrest, but Mother again was arrested in
November 2019. Describing the arrest, Jones testified:
What I remember about this case is that it was posted on Facebook
Live and Mom was arrested. They found drugs, a loaded gun. In the
video, there was a car seat noted in the vehicle, which brought
concern because we didn’t know where the children were at that time.
Jones said Mother was arrested and charged with possession with intent to deliver
methamphetamines. Admitted into evidence was an “Order of Deferred
Adjudication,” which states that Mother accepted a plea bargain mandating an
eight-year probation and a $3,000 fine. In addition to these two offenses, Jones
said Mother “has [an] extensive criminal history involving theft offenses”;
documents admitted into evidence showed Mother has at least eight theft
convictions.
Describing other incidents, Jones said Mother traveled with the children “in
the middle of the night” to Mississippi to be with her husband, James Yeager, in
January 2020. According to Jones, this was concerning because Mother “was not
supposed to be alone with the children” and “was not supposed to leave the state
without notifying her caseworker.” Jones said the Department also had concerns
4
about Yeager, particularly his “extensive criminal history” which included
possession of a controlled substance and theft.
A drug test from May 2020 was admitted into evidence, which showed that
Mother tested positive for amphetamines and methamphetamines. Jones said the
Department received another intake report during this time, which alleged
domestic violence between Mother and Yeager.
A second drug test from June 2020 was admitted into evidence and showed
that Mother again tested positive for amphetamines and methamphetamines.
Reviewing this test, Jones agreed that it showed Mother’s drug levels “ha[d]
actually increased.” According to Jones, the Department implemented a Parental
Child Safety Placement that required the children to live with a family member.
However, Mother “removed the children and went to Huntsville.” Jones said she
went to pick up the children in Huntsville and returned them to the Parental Child
Safety Placement.
Jones testified that the Department sought temporary managing
conservatorship of Kate and Caleb in August 2020, noting “issues and instability”
that had worsened. Jones said the children were placed with their Foster Parents.
Jones testified that she was familiar with the Foster Parents. According to
Jones, Mother’s oldest son and Kate had previously been placed with the Foster
Parents in May 2017 when they first were removed from Mother’s care. But even
after the children were returned to Mother’s care, Jones stated:
that Mom would need time and needed breaks and that she would
drop the children off at [the Foster Parents’] home, and so they would
care for the children. They were emergency contacts when it came to
day care. They were very heavily involved in helping the children.
Jones said Mother would leave the children with the Foster Parents “at least two to
5
three times a month.” Jones agreed that it is “unusual” for a parent “to continue to
have a previous foster parent essentially parent their children.”
Jones testified that the Foster Parents have “provided a safe and stable
environment” for Kate and Caleb. Jones said the Department has not had any
concerns about the care provided by the Foster Parents. According to Jones,
Mother has not shown that she can provide a safe and stable environment for Kate
and Caleb. Jones ultimately opined that the children “would be in grave danger if
they were returned back to [Mother] today.”
Cheryl Sanders
Sanders is a Department conservatorship worker and has been involved with
Mother’s case since its initiation. Noting that Mother has had “at least five”
criminal cases, Sanders agreed that Mother’s “criminal history is quite
concerning.” Sanders also reviewed evidence showing that Mother “currently has
two active warrants in Harris County.” When asked about the risks these warrants
presented to Kate and Caleb, Sanders testified that Mother:
could be arrested at any time and the children, if they were in her
custody at that time, they will be taken — well, CPS will be called
and they’ll be back in custody. Again, not showing stability.
According to Sanders, Mother also had an open warrant in connection with her
Oklahoma arrest that Mother took care of shortly before trial.
Sanders said Mother tested positive for methamphetamines in November
2020, shortly after the children had been removed from her care. Sanders agreed
that this result showed that Mother was not taking the family service plan
“seriously.”
Describing the current family service plan, Sanders said Mother has
completed most of its recommended services. Sanders testified that Mother
6
completed her substance abuse counseling and, throughout all of 2021, her drug
tests were negative. Sanders said Mother also completed her individual
counseling. But Sanders noted that Mother completed these services “at the very
last minute,” which did not indicate someone “who is serious about their sobriety
and maintaining their sobriety.” Rather, Sanders said this showed that Mother was
repeating the “same pattern” where she would “do the bare minimum just to get
CPS out of [her] li[fe] and the children returned.” Continuing on, Sanders
testified:
The pattern that I’ve seen is that Mom will hurry up and finish the
process and check the boxes, get the children back, and then,
eventually, possibly relapse and get back to regular programming.
Sanders also said Mother did not satisfy the service plan’s requirement to provide
evidence of stable housing. Sanders said Mother gave the Department a copy of
her current lease agreement; however, the Department was unable to confirm the
lease with the property’s landlord. According to Sanders, “the gentleman who
signed off as the landlord or owner of the property is not the said owner of the
property.” Rather, the person who signed the lease agreement as the property’s
landlord was a person with a “criminal history of forging documents.”
Sanders testified that Mother has not shown that she can provide a safe and
stable environment for Kate and Caleb. Sanders said Mother has not expressed
any plans for the children’s futures nor has she expressed any hopes and dreams
for them. Sanders agreed that returning to the children to Mother “would be
detrimental to their physical and emotional well-being.”
In contrast, Sanders said the Foster Parents can provide a safe and stable
environment for Kate and Caleb. Sanders said she has made numerous announced
and unannounced visits to the Foster Parents and, each time, the children have been
7
happy and well cared for. According to Sanders, the Foster Parents also have
expressed hopes and dreams for the children’s futures. Sanders testified that the
children refer to the Foster Parents as “mom” and “dad” and “seem to love where
they are.” Sanders agreed that it would be in Kate’s and Caleb’s best interest to
have Mother’s parental rights terminated. Termination of Mother’s parental rights,
Sanders said, would “give[] the children a chance at a better life” with the Foster
Parents.
Mother
According to Mother, she has completed her family service plan. Mother
said she was unaware of the issues the Department had confirming her lease.
Mother said she did not personally know the landlord and “actually found the place
in a newspaper.” Mother said she was not aware that she had any open warrants in
Harris County.
Mother said she is currently employed at the Holiday Inn and generally
works from 9:00 a.m. to 3:00 p.m. To maintain her sobriety, Mother said she
works with her sponsor daily, writes in her journal, and attends meetings at least
once a week. When asked about her “support system,” Mother listed her “old
boss,” her grandma, her cousin, and her sponsor. Mother said all of these
individuals were willing to assist her in caring for her children.
Mother agreed that the Foster Parents continued to be involved in her
children’s lives after the children were removed and returned to her care in 2017.
Mother said the Foster Parents “had a bond” with the children and that she did not
want to totally remove them from the children’s lives.
Mother acknowledged that she had prior CPS cases “that have been opened
and closed.” Mother said the present case was different because she “actually
8
[has] a sponsor and [has] actually been working an honest program.” Mother said
she has been sober for approximately one-and-a-half years and has “learned
different ways to cope with stress and stuff like that so that I do not relapse again.”
Mother said she would be able to provide a safe home environment for Kate
and Caleb if they were returned to her. Mother said she planned to enroll the
children in the Livingston school district. If the children needed after-school care,
Mother said she could arrange care with her grandmother or a friend. Mother said
she currently rents a three-bedroom house with plenty of room for the children.
Wilda Baptiste
Baptiste is Mother’s sponsor and has worked with Mother for approximately
two years. Baptiste said she is in “constant contact” with Mother and
“communicate[s] with her about everything because being a sponsor, I have to
know what’s going on with her, as far as her life in general.” Baptiste said she
does not have any concerns about Mother maintaining her sobriety and said
Mother is “doing a very excellent job.” Baptiste said she did not have any
concerns about Kate and Caleb being returned to Mother’s care because Mother is
“going to do whatever she ha[s] to do for her kids and to take care — take care of
her kids and provide for her kids.”
Zachariah Robertson
Robertson previously hired Mother at La Quinta Inn & Suites, where Mother
worked before her current job at the Holiday Inn. Robertson said he helped
Mother obtain her current Holiday Inn position because it was “more financially
stable than what [La Quinta] could offer at the moment.”
Robertson said he never had any issues with Mother while she worked at La
Quinta. According to Robertson, Mother “was one of the few people that I’ve ever
9
seen that actually kept up with me to the degree of work that I put in.” Robertson
said he never had any issues with Mother showing up late or missing work.
Robertson said Mother worked in many different parts of the hotel, including the
kitchen, housekeeping, and front desk.
Kelli Knight
Knight is Mother’s older sister. Knight lives in Mississippi and usually
visits Mother “three or four times a year.” However, Knight said she recently had
a baby and had not been able to visit as often as she used to. But nonetheless,
Knight testified that she is “available as a support system or as a resource for
[Mother] in her time of need.”
Knight said she believed that Mother is capable of caring for Kate and
Caleb. Knight said Mother is “completely different than she was” and noted that
Mother has been working every day and completing her counseling. But Knight
acknowledged that “[i]t has been a pattern for [Mother] to use, get clean, and then
use again.”
Foster Mother Patricia
Patricia said she first became involved with Mother in July 2017, when
Mother’s oldest son and Kate were placed in the care of her and her husband.
Patricia said the children were returned to Mother in September 2018. After the
children were returned to Mother, Patricia said she and Mother continued to “talk
quite often.” Patricia said she “started watching the kids again” in October 2018.
When asked why Mother would drop the children off, Patricia said:
It was a mixture of things. Sometimes it would be — [Mother] would
say that she was stressed, she needed a break. Sometimes it would be
. . . me calling and just checking on her to see how she’s doing and it
would turn into, you know, seeing [Kate] that weekend and picking
her up that weekend.
10
Sometimes — it was mostly we’d pick [Kate] up Friday and then by
Sunday, [Mother] would come and pick [Kate] up or sometimes it
would extend further. There was several times where I would actually
have to call in to work on, like, a Monday and I would have to find a
babysitter for [Kate] because we would have her until, like, Tuesday
or Wednesday.
Patricia said it got to the point where she and her husband were caring for the
children “almost every weekend.” But at other times, Mother would just “break
communication” and they would not hear from her for weeks.
Patricia recalled several concerning incidents that took place while the
children were living with Mother. In January 2019, Patricia said Mother called and
said she took Kate to the emergency room. According to Patricia, Mother said
Kate “had opened a bottle of thyroid pills and had possibly ingested 30 pills” and
“had to have her stomach pumped.” Patricia said Kate was two years old when
this incident occurred.
A few days later, Patricia recalled receiving another call from Mother
informing her that Caleb “had ingested [a] whole bottle of clove oil.” Caleb’s liver
shut down and he was hospitalized for approximately a week. Caleb was one year
old when this occurred.
Patricia said Caleb again was hospitalized in May 2020 after he cut his foot
on a casserole dish that had fallen on the ground; the injury required 12 stitches.
According to Patricia, Kate told her “that Mommy got mad and threw the dish and
then [Caleb] had cut his foot.”
Patricia recalled a separate incident in June 2020 when Mother failed to pick
Kate and Caleb up from day care. According to Patricia, the day care called her at
8:30 p.m. and said they had been unable to get in contact with Mother. Patricia
picked up the children from day care and informed the Department’s caseworker
11
about what had occurred.
Patricia said Kate and Caleb were placed with her and her husband in
August 2020, after the Department filed the underlying termination proceedings.
The children underwent a “wellness check” and it was determined that Caleb was
“behind on a lot of his vaccines and had to get vaccinated.” Patricia also noticed
that Caleb had “a little ball sticking out of his stomach” and appeared to be in pain
when he “would stretch too high.”
After taking Caleb to the pediatrician, Patricia said she was told he had an
epigastric hernia. The pediatrician told Patricia the hernia previously had been
noted in Caleb’s medical records in March 2018 but had not been treated. Patricia
said Caleb underwent surgery in February 2021 to repair the hernia.
Patricia said she also was concerned that Caleb was having repeated ear
infections. After taking Caleb to the pediatrician, Patricia said she was told that
Caleb previously had 11 ear infections while he was in Mother’s care. Patricia said
she scheduled ear tube surgery for Caleb.
Before Caleb got ear tubes, Patricia recalled that Mother “repeatedly sa[id]
that she thought he was autistic” because he “was really bad and wouldn’t listen.”
But after Caleb got ear tubes, Patricia said “it was like night and day” and Caleb
started thriving. Instead of being autistic, Patricia said Caleb “just couldn’t hear.”
Turning to Kate, Patricia said she initially was “throwing a lot of tantrums”
after she was removed from Mother’s care. Patricia noted that Kate has been
enrolled in speech, occupational, and social therapy, and has seen a lot of progress.
Patricia recalled that Kate was having dental issues when she was removed from
Mother’s care and had 6-8 cavities. Patricia also said that Kate initially had “sleep
issues” and would stay up “until about 2:00 or 3:00 in the morning.”
12
Patricia said she was aware that Mother had a criminal history, specifically,
“a lot of theft cases.” Patricia said Mother would shoplift and “then give it to
someone to sell.” Patricia also knew that Mother was arrested in November 2019
for a drug offense.
Patricia said she and her husband intended to adopt Kate and Caleb if
Mother’s parental rights were terminated. Patricia said the children wanted to stay
with her and her husband and rarely talked about Mother. At the time of trial,
Patricia said Kate (who was then five years old) had lived with her and her
husband for almost three years total. Patricia said Caleb (who was then four years
old) had lived with her and her husband for 20 months.
For the children’s short-term goals, Patricia said she wants to enroll them in
sports; Kate expressed interest in dance and gymnastics and Caleb wanted to play
football.
Michaella Maniscalo
Maniscalo works for Child Advocates and has been involved in the case
since July 2021. According to Maniscalo, she represents Kate’s and Caleb’s best
interest.
Since she began working with the children, Maniscalo noted that she has
seen significant progress. With respect to Kate, Maniscalo testified that she has
“been more responsive to redirection than she used to be and more quick[] to say
sorry to a sibling that she might be getting in a short argument with.” Maniscalo
said Caleb has become more outgoing and talkative.
Maniscalo testified that she did not believe that Mother “has the parental
abilities to be able to parent the children” and noted Mother’s “criminal history and
drug abuse history.” Maniscalo said she also was concerned with Caleb’s prior
13
health issues, including the hernia that was diagnosed while he was in Mother’s
care and his repeated ear infections.
Maniscalo said that the Foster Parents can meet Kate’s and Caleb’s physical,
emotional, educational, and medical needs. Maniscalo said she had observed
“many” visits between the Foster Parents and the children and noted that the
children are bonded to the Foster Parents and feel safe in their environment.
II. The Trial Court’s Findings
The trial court signed a final order on June 9, 2022, terminating Mother’s
and Father’s parental rights with respect to Kate and Caleb.
In its order, the trial court found that termination of Mother’s parental rights
was in the children’s best interest and warranted under three subsections of section
161.001(b)(1) of the Texas Family Code: (D) (endangerment by environment), (E)
(endangerment by conduct), and (O) (failure to comply with a court ordered plan
for reunification with the child). See Tex. Fam. Code Ann. § 161.001(b)(1)(D),
(E), (O).
The trial court also appointed the Department as Kate’s and Caleb’s sole
managing conservator. Mother timely appealed.4
ANALYSIS
Mother raises five issues5 on appeal that challenge: (1) the sufficiency of the
4
Father did not file a notice of appeal in the underlying proceeding.
5
Specifically, Mother articulates her issues as follows: (1) “Whether the Evidence is
Factually Insufficient to Support Termination of Parental Rights Under 161.001(b)(1)(D)”;
(2) “Whether the Evidence is Factually Insufficient to Support Termination of Parental Rights
Under 161.001(b)(1)(E)”; (3) “Whether the Evidence is Legally and Factually Insufficient to
Support Termination of Parental Rights Under 161.001(b)(1)(O)”; (4) “Whether the Evidence is
Factually Insufficient to Support a Finding that Termination of Parental Rights is in the Best
Interest of the Children”; and (5) “Whether the Trial Court Abused its Discretion by Failing to
14
evidence supporting the trial court’s predicate findings under section 161.001(b)(1)
and best-interest finding; and (2) the trial court’s failure to appoint Mother as a
possessory conservator.
We begin with the applicable burdens of proof and standards of review
before turning to the issues raised on appeal.
I. Burdens of Proof and Standards of Review
Involuntary termination of parental rights is a serious matter that implicates
fundamental constitutional rights. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985);
In re J.E.M.M., 532 S.W.3d 874, 879 (Tex. App.—Houston [14th Dist.] 2017, no
pet.). But although parental rights are of constitutional magnitude, they are not
absolute. In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). Given the fundamental liberty
interests at stake, “termination proceedings should be strictly scrutinized, and
involuntary termination statutes are strictly construed in favor of the parent.”
Holick, 685 S.W.2d at 20.
Parental rights may be terminated if clear and convincing evidence shows
(1) the parent committed an act described in section 161.001(b)(1) of the Texas
Family Code, and (2) termination is in the child’s best interest. See Tex. Fam.
Code Ann. § 161.001(b)(1), (2). “‘Clear and convincing evidence’ means the
measure or degree of proof that will produce in the mind of the trier of fact a firm
belief or conviction as to the truth of the allegations sought to be established.” Id.
§ 101.007.
This heightened burden of proof results in heightened standards of review
for evidentiary sufficiency. In re V.A., 598 S.W.3d 317, 327 (Tex. App.—Houston
[14th Dist.] 2020, pet. denied). For a legal sufficiency challenge, we consider all
Appoint Mother as a Possessory Conservator.”
15
the evidence in the light most favorable to the finding to determine whether a
reasonable fact finder could have formed a firm belief or conviction that its finding
was true. In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We assume that the fact
finder resolved disputed facts in favor of its finding if a reasonable fact finder
could do so, and we disregard all controverting evidence a reasonable fact finder
could disbelieve. Id.
For a factual sufficiency challenge, we consider and weigh all the evidence,
including disputed or conflicting evidence, to determine whether a reasonable fact
finder could have formed a firm belief or conviction that its finding was true. In re
C.H., 89 S.W.3d at 25. We examine whether disputed evidence is such that a
reasonable fact finder could not have resolved that dispute in favor of its finding.
Id.
The fact finder is the sole arbiter when assessing the credibility and
demeanor of witnesses. In re A.B., 437 S.W.3d 498, 503 (Tex. 2014). “We may
not second-guess the fact finder’s resolution of a factual dispute by relying on
disputed evidence or evidence the fact finder ‘could easily have rejected as not
credible.’” In re V.A., 598 S.W.3d at 328 (quoting In re L.M.I., 119 S.W.3d 707,
712 (Tex. 2003)).
II. Predicate Termination Findings
In her first three issues, Mother asserts the evidence is factually insufficient
to support the trial court’s finding that termination was warranted under three
subsections of section 161.001(b)(1) of the Texas Family Code. See Tex. Fam.
Code Ann. § 161.001(b)(1)(D), (E), (O).
A. Governing Law
“To affirm a termination judgment on appeal, a court need uphold only one
16
termination ground — in addition to upholding a challenged best-interest finding
— even if the trial court based the termination on more than one ground.” In re
N.G., 577 S.W.3d 230, 232 (Tex. 2019) (per curiam). Predicate findings under
subsections (D) and (E), however, pose significant collateral consequences. See id.
at 234, 235 (discussing section 161.001(b)(1)(M), which provides that a court may
terminate a parent’s rights if it finds, by clear and convincing evidence, that the
parent has had his “parent-child relationship terminated with respect to another
child based on a finding that the parent’s conduct was in violation of Paragraph (D)
or (E)”). In light of these consequences, we are required to consider the
sufficiency of the evidence pursuant to subsections (D) and (E) when raised on
appeal. Id. at 235; see also, e.g., In re P.W., 579 S.W.3d 713, 721, 728 (Tex.
App.—Houston [14th Dist.] 2019, no pet.).
Our analysis begins with the trial court’s finding that termination is
warranted under subsection (E).
Subsection (E) authorizes termination if the parent “engaged in conduct or
knowingly placed the child with persons who engaged in conduct which endangers
the physical or emotional well-being of the child.” Tex. Fam. Code Ann.
§ 161.001(b)(1)(E). In this context, “endanger” means “to expose to loss or injury;
to jeopardize.” In re M.C., 917 S.W.2d 268, 269 (Tex. 1996) (per curiam); see
also In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston [14th Dist.] 2014, pet.
denied). Endangerment encompasses “more than a threat of metaphysical injury or
the possible ill effects of a less-than-ideal family environment”; therefore, it is not
necessary that the conduct was directed at the child or that the child suffered actual
injury. In re M.C., 917 S.W.2d at 269.
Under subsection (E), the relevant inquiry is whether evidence exists that the
endangerment of the child’s physical and emotional well-being was the direct
17
result of the parent’s conduct, including acts, omissions, or failures to act. In re
S.R., 452 S.W.3d at 360. Although endangerment under this subsection often
involves physical endangerment, the statute does not require that the conduct be
directed at a child or that the child actually suffer physical injury; rather, the
specific danger to the child’s well-being may be inferred from the parent’s
misconduct alone. Id. “As a general rule, subjecting children to a life of
uncertainty and instability endangers the children’s physical and emotional well-
being.” In re J.O.A., 283 S.W.3d 336, 345 (Tex. 2009).
But termination under subsection (E) must be based on more than a single
act or omission — “the statute requires a voluntary, deliberate, and conscious
course of conduct by the parent.” In re V.A., 598 S.W.3d at 331; In re S.R., 452
S.W.3d at 360. For this inquiry, we may consider conduct occurring both before
and after the child was removed from the parent’s care. In re S.R., 452 S.W.3d at
360. We also may consider actions and inactions occurring both before and after
the child’s birth. In re V.A., 598 S.W.3d at 331.
Evidence of criminal conduct, convictions, imprisonment, and their effects
on a parent’s life and ability to parent may establish an endangering course of
conduct. In re S.R., 452 S.W.3d at 360-61. “Routinely subjecting children to the
probability that they will be left alone because their parent is in jail endangers
children’s physical and emotional well-being.” In re J.B., No. 14-20-00766-CV,
2021 WL 1683942, at *5 (Tex. App.—Houston [14th Dist.] Apr. 29, 2021, pet.
denied) (mem. op.).
B. Application
Under the applicable standards of review, we conclude the evidence is
factually sufficient to support the trial court’s finding that Mother endangered Kate
and Caleb as described in subsection (E).
18
First, the evidence shows that Mother has a lengthy history of substance
abuse. See In re J.J.L., 578 S.W.3d 601, 611 (Tex. App.—Houston [14th Dist.]
2019, no pet.) (“A parent’s continuing substance abuse can qualify as a voluntary,
deliberate, and conscious course of conduct endangering the child’s well-being.”).
Testifying at trial, Jones said Mother initially came to the Department’s attention in
2014; during the ensuing investigation, Mother tested positive for
methamphetamines while pregnant with her oldest son and her son tested positive
for methamphetamines when he was born. Jones said the Department initiated its
fourth investigation in October 2017, when Caleb was born. According to Jones,
Mother admitted to also using methamphetamines during her pregnancy with
Caleb. See In re M.J., No. 14-20-00449-CV, 2020 WL 7038526, at *6 (Tex.
App.—Houston [14th Dist.] Dec. 1, 2020, no pet.) (mem. op.) (“a mother’s drug
abuse during pregnancy is particularly endangering to an unborn child’s physical
well-being”).
Jones also testified about Mother’s November 2019 arrest, during which the
responding officers found “drugs [and] a loaded gun” in Mother’s car. Mother was
charged with possession with intent to deliver methamphetamines; she accepted a
plea bargain mandating an eight-year probation and a $3,000 fine.
In her appellate brief, Mother points out that she has not had a positive drug
test since April 2021 and has been working diligently with her sponsor. But this
evidence alone does not fully discount the other evidence regarding Mother’s
history of substance abuse and its effects on the care she has provided her children.
See In re Z.H., No. 14-19-00061-CV, 2019 WL 2632015, at *4 (Tex. App.—
Houston [14th Dist.] June 27, 2019, no pet.) (mem. op.) (“evidence of improved
conduct, especially of short-duration, does not conclusively negate the probative
value of a long history of drug use”). Moreover, Sanders testified that Mother has
19
had a “pattern” of waiting until “the very last minute” to complete her services.
“Eventually,” Sanders said, Mother would “possibly relapse and get back to
regular programming.” Mother’s sister also acknowledged that “[i]t has been a
pattern for [Mother] to use, get clean, and then use again.” See also In re M.G.D.,
108 S.W.3d 508, 514 (Tex. App.—Houston [14th Dist.] 2003, pet. denied)
(“evidence of a recent turnaround should be determinative only if it is reasonable
to conclude that rehabilitation, once begun, will surely continue”).
Second, evidence was presented showing Mother’s history of criminal
conduct. See In re S.R., 452 S.W.3d at 360-61. In addition to the November 2019
arrest for possession with intent to deliver methamphetamines, Jones said Mother
was arrested in Oklahoma in June 2019 for larceny, assault, and trespassing.
According to Sanders, Mother had an open warrant in connection with this offense
that she had neglected to take care of until shortly before trial. Sanders said that, at
the time of trial, Mother had two active warrants in Harris County.
Jones also testified that Mother “has [an] extensive criminal history
involving theft offenses” and documents admitted into evidence showed that
Mother has at least eight theft convictions. According to Patricia, Mother was
involved in a scheme where she would shoplift goods and give them to someone
else to sell.
Third, the evidence shows that both Kate and Caleb sustained serious
injuries while in Mother’s care. See In re J.D., 436 S.W.3d 105, 114-15 (Tex.
App.—Houston [14th Dist.] 2014, no pet.) (history of repeated injuries to a child
may support a finding that the child’s caregiver allowed the child to remain in
surroundings that endangered his physical well-being). According to Patricia, Kate
was hospitalized in January 2019 when she was two years old. Patricia said
Mother informed her that Kate “had opened a bottle of thyroid pills and had
20
possibly ingested 30 pills” and “had to have her stomach pumped.” A few days
later, one-year-old Caleb was hospitalized after Mother said he “had ingested [a]
whole bottle of clove oil.” Caleb’s liver shut down and he was hospitalized for
approximately one week. Caleb again was hospitalized in May 2020 after he cut
his foot on a casserole dish that had fallen on the ground. According to Patricia,
Kate relayed that this incident occurred when “Mommy got mad and threw the
dish.”
Fourth, the evidence shows that Kate and Caleb were dealing with several
health issues at the time they were placed in the Foster Parents’ care. See In re
S.B., No. 12-12-00402-CV, 2013 WL 2286081, at *8 (Tex. App.—Tyler May 22,
2013, no pet.) (mem. op.) (evidence that the child was “in poor health” supported
finding that the parents engaged in an endangering course of conduct). Patricia
said Caleb had an untreated hernia and at least 13 ear infections while he was in
Mother’s care. After Caleb underwent ear tube surgery, Patricia said the
improvement in his hearing “was like night and day.” With respect to Kate,
Patricia said she had several cavities, sleep issues, and initially was “throwing a lot
of tantrums.”
Finally, other incidents and circumstances described by the witnesses’
testimony further support the finding that Mother engaged a course of conduct that
endangered Kate and Caleb. Jones described an incident in January 2020 when
Mother traveled “in the middle of the night” to Mississippi to be with her husband,
Yeager. At the time this occurred, Jones said Mother “was not supposed to be
alone with the children” and “was not supposed to leave the state without notifying
her caseworker.” Jones also noted that Yeager had an extensive criminal history,
including possession of a controlled substance and theft. Jones described a second
2020 incident in which Mother removed the children from the appointed Parental
21
Child Safety Placement and went to Huntsville.
Patricia testified that she and her husband provided care for Mother’s oldest
son and Kate from May 2017 through September 2018, after the children initially
were removed from Mother’s care. But even after they were returned to Mother’s
care, Patricia said Mother would ask the Foster Parents to watch the children; it
eventually progressed to the point where the Foster Parents were watching the
children “almost every weekend.” Patricia recounted another incident in June
2020, in which Mother failed to pick Kate and Caleb up from day care. According
to Patricia, the day care called her at 8:30 p.m. and said it had been unable to get in
contact with Mother. Patricia picked the children up from daycare and informed
the Department’s caseworker of the incident.
Considered together, this evidence would allow the fact finder to form a firm
belief or conviction that Mother engaged in a course of conduct that endangered
Kate’s and Caleb’s physical or emotional well-being. See Tex. Fam. Code Ann.
§§ 101.007, 161.001(b)(1)(E); In re J.F.C., 96 S.W.3d at 266; In re C.H., 89
S.W.3d at 25. Accordingly, the evidence is factually sufficient to support
termination of Mother’s parental rights under subsection (E). See Tex. Fam. Code
Ann. § 161.001(b)(1)(E).
Because factually sufficient supports the subsection (E) termination finding,
we need not address the trial court’s finding pursuant to subsection (D). See In re
N.G., 577 S.W.3d at 232-33. Likewise, we need not address Mother’s challenge to
the trial court’s finding pursuant to subsection (O). See id. We overrule Mother’s
first, second, and third issues.
III. Best-Interest Finding
Mother also challenges the factual sufficiency of the evidence supporting the
22
trial court’s finding that termination of her parental rights is in Kate’s and Caleb’s
best interest. See Tex. Fam. Code Ann. § 161.001(b)(2).
A. Governing Law
The best-interest inquiry is child-centered and focuses on the child’s well-
being, safety, and development. In re A.C., 560 S.W.3d 624, 631 (Tex. 2018).
The factfinder may consider several factors to determine the child’s best interest,
including: (1) the desires of the child; (2) the present and future physical and
emotional needs of the child; (3) the present and future emotional and physical
danger to the child; (4) the parental abilities of the persons seeking custody; (5) the
programs available to assist those persons seeking custody in promoting the best
interest of the child; (6) the plans for the child by the individuals or agency seeking
custody; (7) the stability of the home or proposed placement; (8) acts or omissions
of the parent that may indicate the existing parent-child relationship is not
appropriate; and (9) any excuse for the parent’s acts or omissions. Holley v.
Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); In re E.R.W., 528 S.W.3d 251, 266
(Tex. App.—Houston [14th Dist.] 2017, no pet.); see also Tex. Fam. Code Ann.
§ 263.307(b) (listing factors to consider in evaluating parents’ willingness and
ability to provide a child with a safe environment).
Courts apply a strong presumption that the best interest of the child is served
by keeping the child with the child’s natural parents, and it is the Department’s
burden to rebut that presumption. In re D.R.A., 374 S.W.3d 528, 531 (Tex. App.—
Houston [14th Dist.] 2012, no pet.). Prompt and permanent placement in a safe
environment also is presumed to be in the child’s best interest. Tex. Fam. Code
Ann. § 263.307(a). A finding in support of “best interest” does not require proof
of any unique set of factors, nor does it limit proof to any specific factors. See
Holley, 544 S.W.2d at 371-72.
23
B. Application
Guided by the Holley factors, we conclude that the evidence is not factually
insufficient to support trial court’s finding that termination of Mother’s parental
rights is in Kate’s and Caleb’s best interest. See id.
Kate’s and Caleb’s desires and needs. When the children were removed from
Mother’s care in September 2020, Kate was almost four years old and Caleb was
almost three. At the time of the bench trial, Kate was five years old and Caleb was
four.
When children are too young to express their desires, the fact finder may
consider that the children are bonded with their current placement, are well cared
for by them, and have spent minimal time with the parent. In re V.A., 598 S.W.3d
at 333. The evidence shows that these conclusions may be drawn here. Numerous
witnesses testified that Kate’s and Caleb’s physical and emotional well-being have
significantly improved since they have been in the Foster Parents’ care. Jones said
the Foster Parents have “provided a safe and stable environment” for the children
and that the Department has not had any concerns about the care they have
provided. Similarly, Sanders said she has made numerous announced and
unannounced visits to the Foster Parents and, each time, Kate and Caleb have been
happy and well cared for. Sanders said the children refer to the Foster Parents as
“mom” and “dad” and “seem to love where they are.”
Patricia also testified that Kate and Caleb are bonded to her and her husband.
According to Patricia, Kate had been living with her and her husband for over half
of her life and Caleb had lived with the family for 20 months.
Kate’s and Caleb’s present and future physical and emotional needs. The
evidence at trial suggests that Mother was not meeting Kate’s and Caleb’s physical
24
and emotional needs while they were in her care.
As discussed above, when Caleb was placed in the Foster Parents’ care he
had numerous health issues, including an untreated hernia and frequent ear
infections.
The evidence also suggests that Mother was not consistently providing for
the children’s emotional needs. Jones testified that Mother twice removed the
children without permission: first, when she traveled with them to Mississippi and,
second, when she removed the children from their Parental Child Safety Placement
and moved them to Huntsville. Mother also would frequently leave the children in
the care of the Foster Parents and once failed to pick the children up from day care.
The trial court reasonably could conclude that this pattern of behavior would be
damaging to the children’s emotional needs.
In contrast, the evidence shows that the Foster Parents have adequately
provided for Kate’s and Caleb’s physical and emotional needs. Patricia testified
that, since he was removed from Mother’s care, Caleb has had surgery for his
hernia and ear tube surgery. Jones, Sanders, and Maniscalo each testified that the
Foster Parents can provide Kate and Caleb with a stable environment and provide
for the children’s needs.
Present and future emotional and physical danger to Kate and Caleb. The
evidence suggests that returning Kate and Caleb to Mother’s care would endanger
their physical and emotional health. As analyzed above with respect to the trial
court’s subsection (E) finding, the evidence supports the finding that Mother
engaged in a course of conduct that endangered Kate’s and Caleb’s physical or
emotional well-being. See Tex. Fam. Code Ann. § 161.001(b)(1)(E); see also In re
V.A., 598 S.W.3d at 333 (“Evidence supporting termination under the grounds
listed in section 161.001(b)(1) can be considered in support of a finding that
25
termination is in the child’s best interest.”). Based on the evidence presented at
trial, the trial court reasonably could conclude that this pattern of behavior would
continue into the future.
Plans for Kate and Caleb and stability of proposed placement. Jones, Sanders,
and Maniscalo each testified that it would be in Kate’s and Caleb’s best interest if
Mother’s parental rights were terminated so they could be adopted by the Foster
Parents. Emphasizing the consistent care provided by the Foster Parents, Jones
said “they have always been there, even picked up the children when Mom was not
available and they were left at daycare.” Similarly, Sanders noted the Foster
Parents’ “concern about the children’s well-being, their future endeavors and just
their stability.”
Acts or omissions of the parent that may indicate the existing parent-child
relationship is not appropriate and any excuses for those actions and omissions.
As discussed above in section II.B., Mother has an extensive criminal history and a
record of substance abuse. Mother also has been an inconsistent presence
throughout the children’s lives and has repeatedly continued to leave them with the
Foster Parents even after they were back in her custody. The record does not
contain any evidence of factors that mitigate these acts and omissions.
Conclusion. Based on this evidence, a reasonable fact finder could have formed a
firm belief or conviction that termination of Mother’s parental rights was in Kate’s
and Caleb’s best interest. See Tex. Fam. Code Ann. §§ 101.007, 161.001(b)(2).
We overrule Mother’s fourth issue.
IV. The Trial Court’s Failure to Appoint Mother as a Possessory
Conservator
In her fifth issue, Mother asserts the trial court erred by failing to appoint her
as the children’s possessory conservator. Mother cites Texas Family Code section
26
153.191 to support this contention, which states:
The court shall appoint as a possessory conservator a parent who is
not appointed as a sole or joint managing conservator unless it finds
that the appointment is not in the best interest of the child and that
parental possession or access would endanger the physical or
emotional welfare of the child.
Id. § 153.191. Mother asserts that the evidence “conclusively demonstrates that
awarding Mother access and possession would not endanger the children’s
physical or emotional welfare.”
A conservatorship determination made pursuant to section 153.191 is
reviewed for an abuse of discretion. See Brandon v. Rudisel, 586 S.W.3d 94, 106-
07 (Tex. App.—Houston [14th Dist.] 2019, no pet.). A trial court abuses its
discretion if it acts arbitrarily, unreasonably, or without reference to any guiding
rules or principles. Id. at 102.
Under section 153.191, the trial court shall appoint a parent as a possessory
conservator unless the court finds that the appointment (1) is not in the best interest
of the child, and (2) would endanger the physical or emotional welfare of the child.
Tex. Fam. Code Ann. § 153.191. Here, the evidence supports the trial court’s
implied finding that appointing Mother as a possessory conservator would not be
in Kate’s and Caleb’s best interest and would endanger their physical or emotional
welfare.
As discussed above, the trial court found that (1) Mother engaged in conduct
that endangered Kate’s and Caleb’s physical or emotional well-being, and
(2) termination of Mother’s parental rights is in Kate’s and Caleb’s best interest.
See id. § 161.001(b)(1)(E), (b)(2). We reviewed the record and concluded that
these findings are supported by the evidence presented at trial. This evidence
likewise supports the trial court’s best-interest and welfare findings pursuant to
27
section 153.191. Therefore, the trial court did not abuse its discretion in
concluding that Mother did not make the showing required under section 153.191
to establish her rights as a possessory conservator. See id. § 153.191.
We overrule Mother’s fifth issue.
CONCLUSION
We conclude that the evidence is not factually insufficient to support the
trial court’s section 161.001(b)(1)(E) and best-interest finding. We also conclude
that the trial court did not err by failing to appoint Mother as Kate’s and Caleb’s
possessory conservator. Therefore, we overrule Mother’s issues on appeal and
affirm the trial court’s June 9, 2022 final order.
/s/ Meagan Hassan
Justice
Panel consists of Justices Zimmerer, Spain, and Hassan.
28 | 01-04-2023 | 12-26-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350362/ | Affirmed and Memorandum Opinion filed December 22, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00106-CV
SAM’S MOTOR, LLC AND SAMER YACOUB, Appellants
V.
BAYVIEW LOAN SERVICING, LLC, Appellee
On Appeal from the 11th District Court
Harris County, Texas
Trial Court Cause No. 2019-77439
MEMORANDUM OPINION
Appellants Sam’s Motor, LLC and Samer Yacoub appeal the trial court’s
summary judgment in favor of Bayview Loan Servicing, LLC. Appellants bring
two issues on appeal. First, there is a genuine issue of material fact on the amount
owed under the contract and as a result summary judgment on appellee’s
deficiency claim should have been denied. Second, the trial court erred in granting
summary judgment on appellant’s usury claim. We affirm.
BACKGROUND
Appellant Sam’s Motor, LLC took out a business loan (Note) in the principal
amount of $600,000. Appellant Yacoub guaranteed it. The Note provided for an
initial interest rate of 11.25% for five years, and then adjusted to the “Prime Rate”
plus 4.25% for the term of the Note. The Note provides that Sam’s Motor pay all
legal fees and expenses incurred in enforcing the Note. The guarantee provides
that Yacoub pay for all amounts incurred under the Note.
Among other items, the Note was secured by real property. After Sam’s
Motor defaulted, appellee accelerated the Note in June 2015. When appellants
failed to pay the Note in full, appellee foreclosed on the real property in 2019. At
the foreclosure sale the real property sold for $403,000.00. Appellee applied the
sales proceeds to the balance owed under the Note. Appellee filed suit seeking a
deficiency judgment against appellants for the remaining amounts owed.
Both appellee and appellants filed motions for summary judgment. The trial
court granted appellee’s motion and denied appellants’ motion, resulting in a final
judgment. In two issues, appellants argue that the trial court erred in granting
appellee’s motion for summary judgment.
STANDARD OF REVIEW
A trial court must grant a traditional motion for summary judgment if the
evidence shows that there is no genuine issue of material fact and the movant is
entitled to judgment as a matter of law on the issues expressly set out. Tex. R. Civ.
P. 166a. The burden of proof never shifts to the non-movant unless and until the
movant has established “his entitlement to summary judgment by conclusively
proving all essential elements of his cause of action or defense as a matter of law.”
2
Draughon v. Johnson, 631 S.W.3d 81, 87 (Tex. 2021) (internal quotations
omitted).
DEFICIENCY
In their first issue, appellants argue that appellee failed to demonstrate the
amount owed under the Note as a matter of law because its evidence was
“ambiguous, self-contradictory, and insufficiently documented.” Appellants argue
that appellee asserted in its petition that the “total sum of $567,953.81 remains due
and owing on the Note as of September 15, 2019.” Appellants state in their brief
that as of June 4, 2019, appellants owed $540,136.60 on the Note and that in the
summary judgment the trial court awarded appellees $704,142.49 or “the exact
amount requested” in appellee’s motion. Appellants contend “[t]o arrive at this
number, [appellee] referenced an ‘Exhibit X’” but no such “Exhibit X” is in the
record on appeal. Appellants contend that as a result, summary judgment should
be reversed.
A. General Legal Principles
A lender need not file detailed proof reflecting the calculations reflecting the
balance due on a note; an affidavit by a bank employee which sets forth the total
balance due on a note may be sufficient to entitle the movant to summary
judgment. Martin v. First Republic Bank Fort Worth, 799 S.W.2d 482, 485 (Tex.
App.—Fort Worth 1990, writ denied). Summary judgment has been upheld where
affidavits simply identify the amount owing as a lump sum figure and the interest
owed on the note. See Thompson v. Chrysler First Bus. Credit Corp., 840 S.W.2d
25, 28–29 (Tex. App.—Dallas 1992, no writ); Gen. Specialties, Inc. v. Charter
Nat’l Bank-Houston, 687 S.W.2d 772, 774 (Tex. App.—Houston [14th Dist.]
1985, no writ); see also Tex. Commerce Bank, Nat’l Ass’n v. New, 3 S.W.3d 515,
517 (Tex. 1999) (affidavit testimony of total amount due under written instrument
3
is legally sufficient to support award of that amount in default judgment). An
uncontroverted affidavit that identifies the principal and interest due is sufficient to
support summary judgment. See Am. 10-Minute Oil Change, 783 S.W.2d at 601;
Cha v. Branch Banking & Tr. Co., No. 05-14-00926-CV, 2015 WL 5013700, at *3
(Tex. App.—Dallas Aug. 25, 2015, pet. denied). “The bank [is] not required to file
detailed proof of the calculations reflecting the balance owed on the note.” Cha,
2015 WL 5013700, at *3.
B. Background
Appellee moved for summary judgment on its deficiency claim. Appellee
attached to its motion the affidavit of a vice president and records custodian of
appellee. The vice president testified that at “the time of the sale, the total amount
necessary to payoff the balance of the Note was $943,136.60. This figure does not
include the 2019 ad valorem property taxes which [appellee] has not yet paid.”
The vice president further testified that the real property sold at foreclosure sale for
$403,000.00 on June 4, 2019. She testified that once the sale proceeds were
applied to the debt, the deficiency amount was $540,136.60. “Contractual interest
has continued to accrue . . . at a rate of $270.07 per diem since the date of the
same.” The vice president testified that the total amount “due and owing as of
September 1, 2020, is $704,142.49.” She attested that Exhibit X1 is a payoff
calculation as of September 1, 2020:
1
Exhibit X was not part of the original record on appeal but was supplemented by the
clerk.
4
Appellee’s Exhibit X details the amounts owed by appellants and the
foreclosure sale proceeds applied to the amount owed by appellants. The “Total
Deficiency” is $704,142.49 as of September 1, 2020.
Appellants did not controvert appellee’s evidence. In their response,
appellants argued that the amounts in appellee’s exhibits are contradictory. As an
example, appellants argued that in the summary judgment motion, appellee states
that “at the ‘time of the foreclosure sale . . . the total amount due is $943,136.00;
however, in Exhibit X . . . it clearly states at the time of the [foreclosure] sale the
total amount due on the loan was $978,254.70.” In their response, appellants
provided no evidence to contradict appellee’s evidence. Instead, appellants argued
that the evidence provided was insufficient.
The trial court granted summary judgment on appellee’s deficiency claim,
awarding appellee $704,142.49 on its deficiency judgment against appellants.
5
C. Analysis
An assertion of “lack of information” related to a bank’s affidavit regarding
amounts owed or how to calculate a balance due on a note does not raise a fact
issue to defeat summary judgment. See Martin, 799 S.W.2d at 485 (guarantors’
mere assertion of lack of information regarding how certain time period of interest
was calculated did not defeat summary judgment); Morgan v. Amarillo Nat’l Bank,
699 S.W.2d 930, 938 (Tex. App.—Amarillo 1985, writ ref’d n.r.e.) (‘[T]he
showing of a lack of information shows no more that there is an absence of
summary judgment proof to raise a fact issue to defeat the summary judgment
motion.”). Here, the vice president’s affidavit attested to the amount owed, the
amount credited due to the foreclosure sale, and the amount owed after such credit.
The affidavit points to Exhibit X which further details the total amount owed on
the Note. The uncontroverted affidavit identified the loan documents and recited
the total amount owed to appellee and referenced an exhibit that provided the
amounts owed to appellee. This is sufficient to support summary judgment. See
Am. 10-Minute Oil Change, 783 S.W.2d at 601; Martin, 799 S.W.2d at 485;
Thompson, 840 S.W.2d at 28–29; Gen. Specialties, Inc., 687 S.W.2d at 774; see
also Rogers v. Asset Lending, L.L.C., No 14-16-00980-CV, 2018 WL 3118645, at
*7 (Tex. App.—Houston [14th Dist.] June 26, 2018, no pet.) (mem.op.) (“Our
court consistently has recognized that ‘[a]n affidavit stating the balance due on a
promissory note can be specific and sufficient on its face to establish a fact that
could be proven at trial so summary judgment based in part on the affidavit is
proper.’” (quoting Sandhu v. Pinglia Invs. of Tex., L.L.C., No. 14-08-00184-CV,
2009 WL 1795032, at *5 (Tex. App.—Houston [14th Dist.] June 25, 2009, pet.
denied) (mem. op.))).
6
Appellants did not present an affidavit or any other evidence to controvert
appellee’s evidence of the deficiency balance. See Rogers, 2018 WL 3118645, at
*8. We conclude that appellee met its burden on summary judgment to show the
$704,142.49 amount of deficiency due and owing on the Note. See id. Appellants
did not present any controverting evidence raising a fact issue otherwise. See id.
We overrule appellants’ first issue.
RES JUDICATA
In their second issue, appellants argue that the trial court erred in granting
summary judgment in favor of appellee on their counterclaim for usury. In the
final judgment the trial court concluded that appellants’ counterclaims were barred
by res judicata and dismissed all of appellants’ counterclaims, including the usury
claim, with prejudice. Appellants argue that the trial court should not have
dismissed their usury claim because they have “presented evidence that would
allow a reasonable jury to find that they were charged a usurious interest rate” and
“met the minimum evidentiary burden to survive summary judgment.”
A. General Legal Principles
A party appealing a summary judgment order “must negate all possible
grounds upon which the order could have been based by either asserting a separate
issue challenging each possible ground or asserting a general issue that the trial
court erred in granting summary judgment and within that issue providing
argument negating all possible grounds upon which summary judgment could have
been granted.” Jarvis v. Rocanville Corp., 298 S.W.3d 305, 313 (Tex. App.—
Dallas 2009, pet. denied). If an appellant fails to challenge a ground upon which
summary judgment may have been granted, then we must uphold the summary
judgment on the unchallenged ground. Id.
7
B. Background
Appellee moved for summary judgment on all of appellants’ counterclaims
based on the doctrine of res judicata.2 Appellee argued that there were two prior
lawsuits that resulted in two final judgments, and because those prior lawsuits were
based on the same claims, operative facts, and parties, appellants’ claim for usury
is barred by res judicata. The trial court rendered judgment that appellant take
nothing on its counterclaims, concluding “such counterclaims are barred by the
doctrine of res judicata.”
C. Analysis
On appeal appellants argue that the trial court should not have granted
summary judgment on appellants’ usury claim because appellants raised a fact
issue sufficient to preclude summary judgment. However, appellants do not
address the trial court’s granting of summary judgment on appellee’s affirmative
defense of res judicata. In appellants’ brief there is neither mention of res judicata
nor any argument regarding whether the trial court erred in granting summary
judgment on this ground. Thus, even if we agreed with appellants that they raised
a fact issue on their usury claim, because appellants failed to challenge a ground
upon which summary judgment was granted, we must uphold the summary
judgment on the unchallenged ground. See Jarvis, 298 S.W.3d at 313.
We overrule appellants’ second issue.
2
There were nine separate claims or affirmative defenses on which appellee moved for
summary judgment, arguing that all such claims are barred by res judicata. The only claim at
issue on appeal is appellants’ usury counterclaim.
8
CONCLUSION
Having overruled both of appellants’ issues we affirm the trial court’s
judgment.
/s/ Ken Wise
Justice
Panel consists of Justices Wise, Poissant, and Wilson.
9 | 01-04-2023 | 12-26-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487171/ | TERRY, Associate Judge,
concurring:
I join without reservation in Judge Newman’s opinion for the court. I write separately only to suggest that the problem presented by this case can be readily solved by legislation. It would be a simple matter to amend D.C. Code § 22-3214(a) so as to deal with the question of operability; alternatively, the definitions of “sawed-off shotgun” and “machine gun” which already appear in D.C. Code § 22-3201 could be amended so as to include inoperable as well as operable weapons. I have no particular language in mind, but I am sure that those whose task it is to draft legislation can come up with something appropriate. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487172/ | PRYOR, Chief Judge:
Following a three-day jury trial, appellant Timothy Washington was convicted of armed robbery (D.C.Code §§ 22-2901, -3202 (1981)); assault with intent to kill while armed (id. §§ 22-501, -3202); and carrying a dangerous weapon (id. § 22-3204). On appeal, Washington contends that the trial court erred in (1) limiting appellant’s counsel’s time to review certain Jencks material;1 (2) limiting appellant’s cross-examination of the complaining witness; and (3) refusing to allow appellant to call the complainant’s former boyfriend as a witness for impeachment purposes. We affirm.
I
At trial, the government’s evidence showed that on the evening of September 25,1982, the complainant drove to the Potomac Gardens apartment complex in the District of Columbia to look for her former boyfriend, Richard Alexander, and to buy some marijuana.
After she was unable to locate Mr. Alexander, the complainant encountered Washington in the apartment complex parking lot. The complainant had never met Washington prior to that evening. Appellant showed the complainant where marijuana could be purchased, and paid for the marijuana himself because the complainant had left her money in her car.
The complainant and appellant spent approximately one hour and a half together in the Potomac Gardens vicinity, talking and getting acquainted. They discussed the possibility of starting a relationship. After smoking some marijuana, they returned the rest to the dealer because it was of poor quality.
The complainant testified that at about 2:00 a.m., she began to get bored, and became aware that it was very late and thus, told appellant that she was leaving to go home. Appellant gave the complainant his name and phone number, and she wrote the information on a notebook pad she kept in her purse.
Appellant then asked the complainant if she would drop him off at Barry Farms, which was on her way home. The complainant testified that she agreed to drive appellant to Barry Farms because he seemed to be a “nice man,” and did not appear to have a car or any other way to get home.
When they arrived at Barry Farms, appellant told the complainant to wait, left his jacket in the car, and went briefly inside one of the apartment buildings. When he returned to the car, he told the complainant to take him back to Potomac Gardens. The complainant testified that she was confused and annoyed because she thought appellant lived at Barry Farms. She testified further that she argued with appellant throughout the return trip to Potomac Gardens, and that he became “very cold and distant” and uncommunicative.
It was nearly 3:00 a.m. when they arrived back at Potomac Gardens. The complainant stopped the car in the parking lot in order to let Washington out. At that point, Washington reached over and turned the car’s ignition key, shutting off the engine. According to the victim’s testimony, appellant suddenly punched her in the face and told her “not to look at him.” After punching her several more times, he ordered her to move over so he could drive. *98The victim grabbed her purse, jumped out of the car, and began to run away and scream for help. Moments later, appellant caught up with her and began to stab her with a knife. Appellant stabbed the victim repeatedly in her breast, abdomen, and vagina. When the victim finally fell down, appellant stabbed her again at the base of her spine and in her thigh. He then picked up her purse, which contained $50 and the notebook with appellant’s name and phone number and ran away.
When the police arrived on the scene, the victim gave Metropolitan Police Department Officer Halgren a description of her assailant — “dark skin, scar on his eye, about 5'9" ” and told them his name was Timothy Washington. The victim was taken to D.C. General Hospital and while she was in the emergency room she told another police officer that her attacker’s name was Timothy Washington. Two days after her attack, a police officer went to D.C. General Hospital and showed the victim photographs of potential suspects. The victim identified appellant’s photograph as that of her assailant. After her release from the hospital, the victim also identified appellant in a police lineup.
Three residents of the Potomac Gardens apartment complex testified for the government at trial.
Jewel Cade and her brother, Nathaniel Cade, who lived in a third-story apartment overlooking the scene of the stabbing, testified that at approximately 3:00 a.m., they heard someone screaming. Jewel Cade opened the window and both of them observed a man stabbing a girl with a knife. Both witnesses testified that the area where the stabbing occurred was well-lit. Nathaniel Cade testified that he was able to briefly observe the left side of the attacker’s face. Similarly, Jewel Cade testified that she got a “good look” at the man’s face. The Cades called the police and then rushed to assist the victim. When the police arrived, Nathaniel Cade gave them a description of the assailant which matched the victim’s description.2
On the evening following the stabbing, appellant was seen near the apartment complex by another Potomac Gardens resident, Angela Reddick. Reddick testified that earlier that day she had heard appellant bragging about stabbing a woman and nearly killing her. Upon seeing appellant again, Reddick told her mother and their neighbor, Jewel Cade. Ms. Cade immediately telephoned the police.
When the police arrived, Jewel Cade identified appellant as the man she had seen the previous evening stabbing the complainant. The police officers. approached appellant and attempted to question him but he refused to give the officers his name and attempted to flee. The police apprehended appellant and recovered a knife from his jacket pocket.
Appellant relied on an alibi defense at trial. Appellant’s mother testified that appellant was with his girlfriend on September 25, 1982, and returned home at 2:00 a.m. Appellant’s friend, James Cox, testified that he and appellant were together, smoking marijuana, immediately before appellant was arrested. Cox implied that appellant ran from the police when he was confronted because he was in possession of marijuana at the time. Appellant did not testify at trial.
During trial, and immediately prior to the complainant’s direct testimony, the prosecutor turned over Jencks material concerning the complainant to defense counsel. The Jencks material consisted of ten pages of the complainant’s grand jury testimony and a two-page handwritten statement by the complainant. At the conclusion of the complainant’s direct examination, defense counsel requested a recess in which to review the material. Over defense counsel’s objection that the recess was inadequate, the trial court granted a five-minute break. The trial resumed after *99five minutes with defense counsel’s cross-examination of the complainant;
II
A.
Appellant’s first contention is that his rights under the Jencks Act were violated. Specifically, appellant complains that the trial court abused its discretion in granting only a five-minute continuance for the purpose of letting defense counsel review the complainant’s Jencks material. We disagree.
Superior Ct.Crim.R. 26.2, which implements the Jencks Act, 18 U.S.C. § 3500(c) (1982), in the District of Columbia, provides in subsection (d):
Recess for examination of statement.
Upon delivery of the statement to the moving party, the Court, upon application of that party, may recess proceedings....
Thus, under this rule, the decision of whether and to what extent a continuance should be granted, for the purpose of reviewing Jencks Act material, rests in the discretion of the trial court. See United States v. Augenblick, 393 U.S. 348, 355, 89 S.Ct. 528, 533, 21 L.Ed.2d 537 (1969) (entrusting overall administration of Jencks Act to the trial court’s good sense and experience); Jones v. United States, 343 A.2d 346, 350 (D.C.1975); United States v. Perry, 153 U.S.App.D.C. 89, 95, 471 F.2d 1057, 1063 (1972).
Upon reviewing the proceedings in this case, we do not find that the trial court abused its discretion in granting only a five-minute continuance following the complainant’s direct testimony.
Before ruling on defense counsel’s request for a continuance, the trial judge first read the Jencks material himself to determine its volume and complexity. After considering the nature and content of the material, the trial judge concluded that the twelve pages “substantially track[ed]” the witness’ direct testimony and could be adequately examined in a five-minute recess.
Appellant contends rightfully that the Jencks Act contemplates not only the furnishing of a witness’ statement, but also a reasonable opportunity for defense counsel to examine and utilize that witness’ Jencks material. Under the circumstances of this case, however, we believe appellant was given such a “reasonable opportunity.”
Nor do we find United States v. Hinton, 203 U.S.App.D.C. 187, 631 F.2d 769 (1980), the principal case upon which appellant relies in support of his argument, persuasive authority to the contrary. In Hinton, the United States Court of Appeals for the District of Columbia Circuit held that a defendant was prejudiced when his counsel failed to request a recess during a suppression hearing in order to study voluminous Jencks materials relating to three different witnesses. See id. at 188 n.2, 631 F.2d at 770 n.2. Not only was the material provided massive in quantity but it also revealed many inconsistencies between certain witnesses’ identification testimony at trial and earlier identifications given by those witnesses. Id. at 190-95, 631 F.2d at 772-77.
This case is clearly distinguishable from Hinton. Here, defense counsel received a limited amount of Jencks material. In addition, no significant inconsistencies existed between the complainant’s trial testimony, grand jury testimony and written statement. Finally, defense counsel requested and was granted a limited amount of time in which to review the material, and did so.
In light of the nature, quantity, and content of the Jencks material provided in this case, we conclude that the trial court did not err in granting only a five-minute recess to review complainant’s Jencks material. Compare United States v. Holmes, 722 F.2d 37, 40 (4th Cir.1983) (court abused discretion where it gave counsel only five-minute recess to review Jencks material consisting of a “stack of paper at least eight inches thick, including a thousand pages of testimony obtained from ten wit*100nesses, a forty-five minute tape recording and other documents”).
B.
Appellant also argues that his Sixth Amendment right to confront the witnesses against him was infringed when the trial court limited defense counsel’s cross-examination of the complaining witness. According to appellant the trial court unfairly restricted defense counsel’s questions concerning (1) whether the complainant was seeking to purchase PCP on the night she was stabbed, and (2) whether the complainant had a motive to fabricate her testimony. Upon our review of the record, we find that the trial court gave defense counsel considerable leeway in cross-examining the complainant sufficient to satisfy the requirements of the Sixth Amendment.
The right to cross-examine witnesses is an integral part of the Sixth Amendment right of confrontation. Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1109-10, 39 L.Ed.2d 347 (1974); Lawrence v. United States, 482 A.2d 374 (D.C.1984). While “reasonable latitude” must be given to the cross-examiner in order to afford the defendant a fair trial, Alford v. United States, 282 U.S. 687, 692, 51 S.Ct. 218, 219, 75 L.Ed. 624 (1931), it is always within the discretion of the trial judge to curtail “cumulative, repetitive, or irrelevant testimony,” and to “control the scope of examination of witnesses.” Geders v. United States, 425 U.S. 80, 86-87, 96 S.Ct. 1330, 1334-35, 47 L.Ed.2d 592 (1976); see also Springer v. United States, 388 A.2d 846 (D.C.1978). Thus, “an evidentiary ruling by a trial judge on the relevancy of a particular item ... will be upset on appeal only upon a showing of ‘grave abuse.’” Mitchell v. United States, 408 A.2d 1213, 1215 (D.C.1979) (quoting Punch v. United States, 377 A.2d 1353, 1358 (D.C.1977), cert. denied, 435 U.S. 955, 98 S.Ct. 1586, 55 L.Ed.2d 806 (1978)).
During his cross-examination of the complainant, defense counsel posed numerous questions about the complainant’s reasons for going to Potomac Gardens on the evening she was stabbed. Defense counsel attempted to elicit answers which would show that the complainant went to Potomac Gardens for the purpose of buying PCP, and not to see a former boyfriend and buy marijuana as she had testified on direct examination. The complainant repeatedly denied any knowledge of PCP and reaffirmed her stated purpose in visiting Potomac Gardens. Following these denials defense counsel continued to question the complainant about purchasing “drugs” or PCP. Viewing this matter as collateral in nature, and any further inquiries as repetitive, the trial court asked defense counsel to cease this line of questioning. Appellant now contends that this was error.
We agree with the trial court’s conclusion that whether the complainant went to Potomac Gardens on the night of the assault to purchase PCP as opposed to marijuana was collateral to the central issue in the case — whether appellant stabbed and robbed the complainant. In light of the complainant’s numerous denials that she went to purchase PCP, and the ancillary nature of the inquiries themselves, any further questioning on this issue was cumulative and unnecessary. Where “cross-examination of a witness has been extensive, repetitive, and protracted ... and further questions along this line would be merely cumulative, the trial judge [may] properly limit the scope of cross-examination without in any way harming defendant’s case.” United States v. Pugh, 141 U.S.App.D.C. 68, 70, 436 F.2d 222, 224 (1970). Thus, we think the trial judge exercised proper discretion in cutting short appellant’s further cross-examination of the victim on this issue.
Appellant also complains that the trial court erroneously refused to allow defense counsel to question the complainant about a possible motive she might have to deny any knowledge about PCP. Specifically, the court sustained the prosecutor’s objection to defense counsel’s inquiries about whether certain of the victim’s family mem*101bers knew why she had gone to Potomac Gardens. In sustaining the objection, the trial court noted that the victim was “a twenty-four year old female ... entitled to go anywhere she wants anytime she wants ... [and] is not responsible to her parents and further that her reasons for going to Potomac Gardens were collateral to the issue of whether she had correctly identified appellant as her assailant.
As previously stated, the trial court has broad discretion to limit time-consuming and highly speculative inquiries during cross-examination. Moreover, even if we were to agree with appellant that this proposed line of questioning was both relevant and proper, we are not persuaded that the trial court’s ruling constituted an abuse of discretion. It is well-established that the right to explore a witness’ possible bias or motive is not without limits. See Sherer v. United States, 470 A.2d 732, 737 (D.C.1983), cert. denied, — U.S. -, 105 S.Ct. 325, 83 L.Ed.2d 262 (1984); Brown v. United States, 409 A.2d 1093, 1099 (D.C.1979). Defense counsel’s questions concerning what complainant’s uncle and other family members might think about the use of PCP, could reasonably have been viewed by the trial court as being too remote. We believe, that under these circumstances, the trial court properly exercised its discretion in limiting defense counsel’s line of questioning.
C.
Finally, appellant contends that the trial court committed reversible error in refusing to permit the defense to call the complainant’s former boyfriend, Richard Alexander, as a witness. According to the defense proffer at trial, Alexander would have testified that (1) prior to trial the complainant told him that she went to Potomac Gardens in order to buy “lovely” — a term for PCP, and (2) following her testimony in court, the complainant approached him in the witness waiting room (immediately outside the courtroom) and told him “don’t say anything about the lovely.”
As previously stated, the trial court correctly found that the complainant’s purpose in going to Potomac Gardens on the night in question was a collateral issue. Thus, Alexander’s testimony on this question constituted extrinsic evidence offered to impeach the complaining witness on a collateral matter.
It is well settled that a party may not present extrinsic evidence to impeach a witness on collateral issues. See, e.g., McClain v. United States, 460 A.2d 562, 569 (D.C.1983); Ibn-Tamas v. United States, 407 A.2d 626, 643 (D.C.1979); Ewing v. United States, 77 U.S.App.D.C. 14, 21, 135 F.2d 633, 640 (1942), cert. denied, 318 U.S. 776, 63 S.Ct. 829, 87 L.Ed. 1145 (1943). The trial court, therefore, correctly ruled that Alexander’s testimony in this regard was precluded as relating to a collateral issue — “that is, it would not have been admissible independently for any purposes other than the contradiction.” McClain v. United States, supra, 460 A.2d at 569; see Moss v. United States, 368 A.2d 1131, 1135 (D.C.1977).
Mr. Alexander’s proposed testimony about the complainant’s alleged effort to influence his testimony, i.e., to “corrupt the proceedings,” presents a more difficult question.
We agree that, as a general rule, a defendant is entitled to wide latitude in presenting evidence tending to impeach the credibility of a witness, especially where that evidence relates to a key government witness. See Lawrence v. United States, 482 A.2d 374, 377 (D.C.1984). Moreover, insofar as the complainant’s alleged conduct manifested a willingness to corrupt the trial, the excluded testimony constituted evidence tending to show bias. McCormick on Evidence § 40, at 87 (3d ed. 1984); 3A J. Wigmore, Evidence § 943 (Chadborn Rev.1970).3 While under the *102general rule, evidence impeaching the credibility of a witness may only be shown on cross-examination, and may not be proved through extrinsic evidence, see Fed.R.Evid. 608(b), it is the accepted view that evidence of bias may be shown through extrinsic evidence. See 3A J. Wigmore, supra, § 943, at .777; United States v. Maynard, 155 U.S.App.D.C. 223, 227, 476 F.2d 1170, 1174 (1973).
The majority of courts, including this court, agree, however, that before extrinsic evidence may be introduced to demonstrate acts or declarations showing corruption or bias, a proper foundation must be laid. See Simmons v. United States, 364 A.2d 813, 816 (D.C.1976); McCoRMiCK, supra, § 40, at 87-88. The reasons underlying this requirement include fairness to the witness, and conservation of time by making extrinsic evidence unnecessary. See McCormick, supra, § 40, at 88. Thus, counsel must first ask the witness under attack about the alleged facts on cross-examination before counsel may seek to prove prior expressions of bias or corruption by introducing other witnesses or evidence.
In the instant case, counsel never laid such a foundation, by asking the complainant whether she knew of the alleged conversation. Accordingly, the trial court did not commit error in excluding extrinsic evidence, i.e., Alexander’s proposed testimony on this question.
Even if we were to conclude, however, that the trial court abused its discretion in not allowing Mr. Alexander to testify for the very limited purpose of telling the jury that the complainant allegedly tried to influence his testimony, we would not find reversible error. In light of the compelling evidence of appellant’s guilt, and other testimony adduced at trial affecting the complainant’s character, we believe the omission of Mr. Alexander’s testimony could not have “substantially swayed” the final judgment and, thus, this omission was harmless error. See Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946); United States v. Lewis, 157 U.S.App.D.C. 43, 57-58, 482 F.2d 632, 646-47 (1973); see also United States v. Pugh, supra, 141 U.S.App.D.C. at 72, 436 F.2d at 226.
In sum, none of appellant’s contentions on appeal support a finding of reversible error. Accordingly, his convictions are
Affirmed.
. See 18 U.S.C. § 3500(c) (1982); Super.Ct. Crim.R. 26.2.
. Nathaniel Cade subsequently identified appellant from a photograph of the lineup. Both Nathaniel and Jewel Cade identified appellant in court at trial.
. One form of bias is "a willingness to obstruct the discovery of the truth by manufacturing or *102suppressing testimony." 3A J. Wigmore, supra, § 943, at 800. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487173/ | MACK, Senior Judge:
Appellant Washington, having entered a conditional plea of guilty to charges of possession of a prohibited weapon (D.C. Code § 22-3214(a) (1989 Repl.)), and possession of unregistered ammunition, (D.C. Code § 6-2361 (1989 Repl.)), challenges the pre-plea denial by the trial court of her motion to suppress evidence. She contends that the trial court erred in finding that exigent circumstances justified the forced entry by police, acting without a warrant, into her bedroom, the search therein, and seizure of a gun. We agree and reverse.
I.
At approximately 1:45 p.m. on March 28, 1988, four officers of the Metropolitan Police Department responded to a Clifton Street, N.W. apartment, after receiving a radio call concerning “a woman with a *168gun.” A young woman answered the officer’s knock at the door. She appeared to be upset and told the officers “my sister has a gun, and I want it out of the house.” While one of the officers remained with the young woman, the other three proceeded down a hallway to the room pointed out as appellant’s room. (The apartment was owned by the mother of the sisters.) The bedroom door was locked. The officers knocked and asked the occupant to come outside. Receiving no reply, they waited a few seconds, than forced the door open, breaking it off its hinges. In the room, the officers found appellant and her three-year-old son sitting on a bed. No other occupants, other than the sisters and the child, were in the apartment at this time.
The officers asked appellant “Where is the gun?” She replied, “I have no gun.” Appellant’s son was removed from the room, and two of the officers began searching for the gun, while the other one kept his attention fixed on appellant. One officer looked into a clothes closet and proceeded to pat and examine the articles inside. He took a closed shopping bag off the shelf, in which he felt a hard object. Opening the bag, he found a loaded semi-automatic machine gun. Appellant was arrested. A motion to suppress was denied. A conditional plea of guilty was entered and this appeal followed.
II.
“ ‘[Sjearches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.’ ” Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 2412, 57 L.Ed.2d 290 (1978) (citations omitted). One exception is that of “exigent circumstances.” When a trial court has concluded that exigent circumstances justify a warrantless search, our review entails nothing more complex than examining the facts as perceived by the police at the time of the search. We accept the trial court's findings unless they are clearly erroneous. Gant v. United States, 518 A.2d 103, 107 (D.C.1986); Derrington v. United States, 488 A.2d 1314, 1323 (D.C.1985), cert. denied, 486 U.S. 1009, 108 S.Ct. 1738, 100 L.Ed.2d 201 (1988). Facts being what they are, however, they must be examined in the context and sequence in which they occur. For example, exigent circumstances in a fast-moving street encounter may not be exigent circumstances in another factual context. In this regard, it bears repeating once again that the constitutional interest which protects a home against intrusion is a precious one. As the Supreme Court has noted:
We are not dealing with formalities. The presence of a search warrant serves a high function. Absent some grave emergency, the Fourth Amendment has interposed a magistrate between the citizen and the police. This was not done to shield criminals nor to make the home a safe haven for illegal activities. It was done so that an objective mind might weigh the need to invade the privacy in order to enforce the law. The right of privacy was deemed too precious to entrust to the discretion of those whose job is the detection of crime and the arrest of criminals. Power is a heady thing, and history shows that the police acting on their own cannot be trusted. And so the Constitution requires a magistrate to pass on the desires of the police before they violate the privacy of the home. We cannot be true to the constitutional requirement and excuse the absence of a search warrant without showing by those who seek exemption from the constitutional mandate that the exigencies of the situation made that course imperative.
McDonald v. United States, 335 U.S. 451, 455-56, 69 S.Ct. 191, 193, 93 L.Ed. 153 (1948).
Under the facts of this case, we are hard pressed to conclude that the exigencies of the situation made the warrantless, forcible entry and search of appellant’s bedroom imperative.1
*169A.
The trial court, in finding that the police in this case acted reasonably under exigent circumstances, relied upon Dorman v. United States, 140 U.S.App.D.C. 313, 435 F.2d 385 (1970) (en banc), involving circumstances similar to hot pursuit and ending with contemporaneous seizure with arrest. Dorman established a seven-prong query for judging the validity of warrant-less searches of dwellings and seizure therein: i.e., whether, (1) a grave offense was involved, particularly a crime of violence; (2) the suspect was reasonably believed to be armed; (3) there was a clear showing of probable cause; (4) there was strong reason to believe that the suspect was in the dwelling; (5) there was a likelihood of escape if the suspect was not swiftly apprehended; (6) the police effected a peaceful entry as opposed to a breaking; and (7) the entry occurred during night. Dorman, supra, 140 U.S.App.D.C. at 320-21, 435 F.2d at 392-93; see also United States v. Lindsay, 165 U.S.App.D.C. 105, 110, 506 F.2d 166, 171 (1974) (summarizing the Dorman test). To the extent that Dor-man could be controlling, it does not support the finding of exigent circumstances in the instant case. Contrary to the finding of the trial court, and the position taken by the government, the officers, at the time of entry, lacked probable cause to believe that any criminal activity had occurred, let alone the commission of a grave offense. Although the officers had information that appellant possessed a gun, they did not know what kind of gun she possessed, whether the gun was registered, whether appellant was licensed to, or did in fact, carry it, or whether she had used it. The mere possession of a gun in a dwelling place, without more, is not a criminal offense.2 For all they knew, at the time they entered appellant’s bedroom, the officers were intervening to recover a lawfully owned, registered gun. Prior to the forcible entry and discovery of the gun, therefore, there was no probable cause to believe that Janice Washington had committed any crime.
This case, therefore is readily distinguishable from the case of Sturdivant v. United States, 551 A.2d 1338 (D.C.1988), relied upon by the government. In that case the police had probable cause to believe that Sturdivant was the armed robber who had shot a woman law school professor in the head, and fled, together with an accomplice, with her briefcase. This court, speaking for a majority of the panel and upholding a warrantless search of the suspects’ house after the suspects had been arrested, relied (understandably) not so much on the Dorman rationale of hot pursuit, as the fact that the police knew that a serious crime had been committed, that a shotgun had been used, that the shotgun had not been retrieved, and most importantly, that other members of the family who had not been arrested would still have access to the shotgun. See also Ruth v. United States, 438 A.2d 1256, 1260 (D.C.1981). Sturdivant cannot be used for the proposition that an exigency is created by the presence of a gun in a residence where there is no probable cause to believe, as here, that the gun is a dangerous or illegal one used in the commission of a crime, or *170where, indeed, no probable cause existed to believe that a crime has been committed.
Moreover, it is not enough that the suspicions of the police were ultimately vindicated by their discovery of an illegal weapon in appellant’s closet. The police must have probable cause connecting a suspect to a crime before they invade constitutionally protected interests to obtain evidence; they must enter with a view to effecting a lawful arrest, and not merely on a “fishing expedition” to obtain incriminating evidence. The purpose of the exigency exception is to protect officers, bystanders, and identified evidence, and to secure suspects; it is not to facilitate exploration, or the obtainment of evidence to verify mere suspicions. See generally In re B.K.C., 413 A.2d 894, 902-04 (D.C.1980). Thus, in Lindsay, supra, 165 U.S.App.D.C. at 110, 506 F.2d at 171, the court held that even though the suspect had committed a crime of violence and was reasonably believed to be armed, a warrantless entry by police officers into a motel room occupied by the suspect was invalid and required the suppression of evidence found in the room subsequent to entry, because the officers had no evidence connecting the suspect to a crime at the time of entry. The Lindsay court explained:
At the time of the entry, the police possessed no evidence at all connecting Lindsay to the crime.... The room was slowly entered, evidence of the crime then began to be discovered, and only then was Lindsay arrested. This sequence of events undercuts the Government’s assertion that they clearly had probable cause to arrest appellant at the time of entry. The fact that once inside the police search uncovered ample evidence to establish probable cause has no relevance here.
Id. at 110, 506 F.2d at 171. Where, as here, the police entered without a warrant or probable cause, any evidence that they subsequently obtained is generally subject to exclusionary rules, and should have been suppressed.
Further, it is apparent that, even apart from the continuing absence of probable cause, the moment was not ripe with exigency after entry. As the court observed in United States v. Irizarry, 673 F.2d 554, 557 (1st Cir.1982), “ ‘[ejxigent circumstances’ have traditionally been found in those crisis situations when there is compelling need for official action and no time to secure a warrant” (emphasis added). Here, it is implausible that exigent circumstances made it vital for the officers to prosecute their warrantless search. Upon entering the room, they found Ms. Washington and her three-year-old son sitting peacefully on a bed. Her hands were in plain view; she was under the continuing scrutiny of a police officer. The three officers present had taken effective control of the situation, and neither they nor any other persons were threatened by the possibility that she would retrieve the gun and either use it or dispose of it. The case bears comparison with the Supreme Court’s precedent in United States v. Chadwick, 433 U.S. 1, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977), where the Court applied the exclusionary rule to evidence recovered from a footlocker seized by police officers, holding that “[t]he initial seizure and detention of the footlocker ... were sufficient to guard against any risk that evidence might be lost. With the footlocker safely immobilized, it was unreasonable to undertake the additional and greater intrusion of search without a warrant.” Id. at 13, 97 S.Ct. at 2484-85 (footnote omitted); see In re B.K.C., supra, 413 A.2d at 903. We owe constitutional deference to a person’s expectations of privacy in her own home, and therefore we must hold the police to the same standards, in intruding upon that privacy, as we would require in securing her personal property.
Without supporting its position, the government contends that the officers did not have time to secure a warrant. The circumstances discussed above belie this contention. With three officers in her bedroom, there was virtually no chance that appellant would escape or dispose of incriminating evidence while awaiting the issuance of a warrant. As Justice Douglas wrote in McDonald, supra, 335 U.S. at 455, 69 S.Ct. at 193, “No reason, except incon*171venience of the officers and delay in preparing and getting papers before a magistrate, appears for the failure to seek a search warrant. But those reasons are no justification for by-passing the constitutional requirement....” Here, the police might have encountered more serious problems attempting to obtain a warrant without showing probable cause.
Gaulmon v. United States, 465 A.2d 847 (D.C.1988), does not compel a different result. There, the defendant had checked into a transient hotel. Id. at 853. Upon temporarily leaving the hotel, he asked a maid to enter his room for the purpose of leaving some fresh linen. She saw a handgun lying on top of the dresser. She then notified the manager, who called the police. When officers arrived, they entered without a search warrant and removed the gun from the room. They further ascertained the defendant’s identity from hotel records. Finding that he was not licensed to carry the weapon on the streets of the District, they obtained a warrant for his arrest, which was perfected the next day. In denying his motion to suppress the weapon, the trial court reasoned that since the gun belonged to a person who in all likelihood was not a resident of the District, and since it was therefore probably carried on District streets, there was some real and present danger to the public. Hence, the officers were justified, by the exigency of the situation, to effect a warrantless search and seizure. Id. at 849.
The case on appeal is distinguishable from Gaulmon. Here a private dwelling was involved. Moreover, the officers lacked probable cause to believe that Janice Washington, prior to their intrusion into her bedroom, had carried an illegal weapon on the streets of the District. The mere fact that her sister appeared to be upset did not constitute grounds for forced entry and seizure. Unlike Gaulmon, the officers could have established probable cause merely by asking the appellant’s sister about the size and nature of the weapon, whether it was registered, and whether it was used to threaten her. Since the officers did not do so, the intrusion and seizure cannot be supported.
B.
Finally, the government can draw no solace from the “emergency entry to deal with danger of bodily harm situation” exemplified by this court’s decision in United States v. Booth, 455 A.2d 1351 (D.C.1983). Indeed, for purposes of Tuck3 and Dor-man, at least, one might question the government’s broad assertion that “[tjhis court has flatly rejected appellant’s argument that the police needed probable cause to believe a crime was being committed....” This court in Booth held what is obvious — that a policeman in the line of duty responds initially just as a fireman does, to an emergency call for help. This is obvious from the facts and holding of that case. Thus, in Booth, an officer received a radio report of an “assault in progress.” When he arrived at the reported address, he was met by the appellee, who had dried blood on his nose. The officer asked Booth whether he had called the police, and Booth answered negatively. However, the blood on Booth’s nose gave the officer “reason to believe the somebody in there had been injured.” Id. at 1352. When Booth would not respond when the officer asked why he had blood on his nose, the latter crossed the threshold. From the hallway, he peered inside the living room “to see if anybody was hurt.” Id. He asked people inside if anyone had called the police. Upon being told that no one had called the police, he turned to leave. As he reached the front door he heard a door open on the second floor; he looked up and saw the complaining witness, whose face was covered with blood. The complainant told the officer that the people downstairs, including Booth, had attacked him. The officer then placed Booth under arrest. Id. at 1352-53. In reversing the trial court’s decision that the entry was unjustified, this court noted that the officer, while lacking *172probable cause to believe that an assault had taken place (a finding made by the trial court), did have probable cause to believe that someone had been injured and, thus, was in need of assistance. We strictly circumscribed such entries:
First, the police officer must have probable cause, based on specific articulable facts, to believe that immediate entry is necessary to assist someone in danger of bodily harm inside the premises. Second, the entry must be tailored carefully to achieve that objective ...; the officer can do no more than is reasonably necessary to ascertain whether someone is in need of assistance, and then to provide that assistance. Finally, the entry must not be motivated primarily by the intent to arrest or to search, but by an intent to investigate a genuine emergency and to render assistance.
Id. at 1355-56 (footnotes omitted; emphasis supplied).
Applying the Booth test to the instant matter, we cannot condone the entry. The officers may have surmised the entry was necessary to assist someone in danger inside the house. It is at the second and third prongs (that the officer can do no more than ascertain whether someone is in need of help, and to render that help, and that the entry may not be motivated by an intent to search) that the infirmity of the government’s argument becomes apparent. Once the officers saw that appellant’s sister was in the living room by herself, out of harm’s way, they should have ceased their search immediately, or inquired into the nature of the weapon and the reason that she called the police before proceeding. It can only be concluded that the entry into the bedroom was motivated by an intent to arrest and search.
III.
Since appellant’s Fourth Amendment rights were violated by an impermissible search of her bedroom, the evidentiary fruits of that search should have been excluded at trial. The police lacked probable cause or exigent circumstances permitting entry into appellant’s bedroom. A war-rantless search, unsupported by probable cause or imminent emergency, cannot be supported.
Reversed.
. We observe at the outset that there is no issue of consent in this case. Of course, a person *169other than the accused who has equal authority over the premises may admit police officers for the purpose of conducting a search. Derrington, supra, 488 A.2d at 1325. We have thus allowed a defendant’s mother, as the lessee and person who exercised control over an entire apartment, to consent to a search of the defendant's bedroom and its contents. Id.. Here, however, the sister of appellant lacked the requisite authority to permit a search of her sister’s bedroom. The apartment belonged to her mother; she was not the lessee, and her authority to admit officers into the apartment did not extend to her sister’s bedroom; her authority over that bedroom was not equal to appellant’s authority. This is particularly true where appellant was present in her bedroom and did not give the police permission to enter.
. The possession of firearms in the District of Columbia is regulated by D.C.Code § 22-3204:
No person shall within the District of Columbia carry either openly or concealed on or about his person, except in his dwelling house or place of business or on other land possessed by him, a pistol, without a license therefore issued as hereinafter provided, or any deadly or dangerous weapon capable of being so concealed....
. In Tuck v. United States, 477 A.2d 1115 (D.C.1984), the officer, from a position where he had a right to be, personally observed circumstances which justified the entry of a pet store in the interest of preventing cruelty to animals. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487174/ | TERRY, Associate Judge,
dissenting:
Although I agree with the general principles of law declared in the majority opinion, I cannot join my colleagues in their application of those principles to the facts of this case. I would affirm the denial of the motion to suppress the gun on the ground that the police were justified by exigent circumstances in doing exactly what they did. As I see it, the critical fact confronting the police officers was the locked bedroom door. Having been told by appellant’s sister that appellant was in the bedroom behind that door with a gun — an Uzi machine gun, as it turned out, though they did not know this at the time — and receiving no response when they knocked and asked appellant to come out, the police acted reasonably, in my judgment, when they forcibly entered the bedroom and seized the gun.1
The factors to be weighed by a court in assessing a claim of exigent circumstances are set forth in Dorman v. United States, 140 U.S.App.D.C. 313, 320-321, 435 F.2d 385, 392-393 (1970) (en banc), and summarized in the majority opinion, ante at 169. See also Sturdivant v. United States, 551 A.2d 1338, 1341 (D.C.1988), cert. denied, — U.S. -, 110 S.Ct. 370, 107 L.Ed.2d 356 (1989); United States v. Minick, 455 A.2d 874, 876 (D.C.) (en banc), cert. denied, 464 U.S. 831, 104 S.Ct. 111, 78 L.Ed.2d 112 (1983). In each case the court must look to the particular facts before it in deciding whether the requisite emergency existed. United States v. McKinney, 155 U.S.App. D.C. 299, 301, 477 F.2d 1184, 1186 (1973). Furthermore, though there are seven “indi-cia of exigency” on the Dorman checklist, *173we have made clear that they need not all be present to justify a warrantless search or seizure. Gaulmon v. United States, 465 A.2d 847, 850 (D.C.1983) (citing cases); see Derrington v. United States, 488 A.2d 1314, 1324 (D.C.1985). The presence and accessibility of a gun, in particular, can make “the situation more pressing and the emergency more critical” because of the potential threat to human life. United States v. Allison, 205 U.S.App.D.C. 270, 272, 639 F.2d 792, 794 (1980) (citations omitted); accord, Sturdivant v. United States, supra, 551 A.2d at 1342 (citing cases).
The officers arriving at appellant’s home were informed by her sister that appellant was in the bedroom with a gun. Although it is not clear from the record that they then knew she had threatened to use the gun,2 there was ample evidentiary support for the court’s finding that “the officers were able to perceive the fright from the sister” and to determine, not only from her words but from the surrounding circumstances, that they were “presented [with] some life-threatening situation.” Two more facts became known almost immediately: (1) the locked door, and (2) the lack of any response from appellant, whom they knew to be behind that door, when they knocked and asked her to come out.
I would hold that all of these facts, taken together, were sufficient to constitute “exigent circumstances” as that term has evolved in our case law. The police officers, faced with a threat of imminent physical danger, not only to themselves but also to appellant’s sister, could not reasonably be expected to withdraw from the scene and seek a warrant from the handiest magistrate. Because the door was locked, they could not remove the threat of violence by any means other than breaking the door down and entering by force. Even their discovery of appellant sitting on the bed did not dissipate the threat, for they did not then know whether the gun was within her reach. Lieutenant Kishpaugh specifically testified on this point. He said that when he and another officer entered the bedroom, they found appellant sitting on the bed with her child. Kishpaugh looked around the room and saw no gun. He inquired, “Where is the gun?”, and appellant replied, “I have no gun.” When asked why he did not then leave to get a warrant, Kishpaugh said:
I wasn’t really sure that she didn’t still constitute a threat to myself and the other officer, sir. A few days prior to that, I had been on another assignment for a subject [with] a gun, and the subject had been sitting in a chair and sitting on the gun. [Emphasis added.]
Just as “[t]he Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to arrest to simply shrug his shoulders and allow a crime to occur or a criminal to escape,”3 it did not require the police officers in this case to ignore the threat to their safety (and that of appellant’s sister and son) presented by someone reliably4 said to have a gun, even though no gun was visible at that moment.
Finally, I cannot agree that the exigency was dissipated when the police entered the room and found appellant and her son sitting peacefully on the bed. As a matter of common sense, the exigency would continue to exist until the gun was found, for until then the police could not be sure that it was beyond appellant’s reach. She could have been sitting on it, as Lieutenant Kish-paugh’s testimony suggests, or it could *174have been under the pillow or the bedcov-ers, or even inside appellant’s clothing.5 In Sturdivant v. United States, supra, the appellant made a similar argument that the search for a sawed-off shotgun was invalid because it was not conducted until after the two suspects had been arrested and taken to the police station. We gave this argument short shrift:
At the time the police commenced the search, they knew that a sawed-off shotgun had been used in a serious crime and that it had not been retrieved. We have observed that the presence of such weapons creates a special exigency because of their potential threat to human life.... In addition, the police knew that if the gun remained in the house after appellant and Jones were removed, the other members of the family who had not been arrested would still have access to it and could use or destroy it.... Thus, the exigencies present when the officers entered the house did not disappear simply because all persons in the house apparently had been located and the suspects had been arrested.
551 A.2d at 1342 (citations omitted and emphasis added). Although Sturdivant is not precisely congruent with the instant case on its facts, I think it is close enough to serve as a dispositive precedent.
The Fourth Amendment does not prohibit all searches and seizures, but only those that are “unreasonable.” I would uphold as reasonable everything that the police did in this case, and would therefore affirm the judgment.
. I agree with the statement in footnote 1 of the majority opinion that "there is no issue of consent in this case.” On the facts before us, appellant’s sister clearly had no authority to permit a search of appellant’s bedroom.
. There was testimony from one of the officers, Lieutenant Lonnie Kishpaugh, that the sister said appellant "had threatened to hurt her with the gun," but that she did not make this statement until after the gun was recovered.
. Adams v. Williams, 407 U.S. 143, 145, 92 S.Ct. 1921, 1922-23, 32 L.Ed.2d 612 (1972).
. This court, in a variety of factual settings, has often "presumed that a citizen is prima facie a more credible source than a paid police informant.” Rushing v. United States, 381 A.2d 252, 255 (D.C.1977) (citation and footnote omitted). "If the citizen claims or appears to be a victim of a crime or an eyewitness to a crime, the reliability of his or her information is greatly enhanced.” Allen v. United States, 496 A.2d 1046, 1048 (D.C.1985) (citations omitted). No claim is made in this case that the information provided by appellant’s sister was not reliable.
. At this point the police did not know that the weapon was a machine gun; they knew only that it was a "gun” of some kind, not further identified. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487175/ | FERREN, Associate Judge:
On October 13, 1989, after a pretrial hearing, the motions court denied appellant’s motion to suppress evidence seized incident to his arrest. On March 5, 1990, a jury found appellant guilty of heroin possession with intent to distribute, D.C.Code § 33-541(a)(l) (1988). Appellant contends the motions court erred in denying his motion to suppress because (1) the tip from a paid police informant could not form the basis for probable cause to arrest unless the reliability of the tipster was further established and the officers corroborated the tip by more than a few innocent details, and (2) the strip and body cavity search conducted at the police station violated police procedures and shocked the conscience, thereby depriving appellant of due process. For purposes of this order we assume, without deciding, that the tip from the police informant, in the context of all sur*1051rounding circumstances, supplied the basis for probable cause to arrest and that the search incident to the arrest at the scene did not violate Fourth Amendment rights. On this record, however, we cannot resolve the second issue. Because the motions court did not make findings of fact or conclusions of law regarding appellant’s strip and body cavity search at the police station, we remand the record to the motions court for further proceedings in accordance with this order.
I.
For the government, Officer Leech testified that, after corroborating an allegedly reliable tip that appellant had narcotics hidden in his pants, appellant was arrested, patted down without a strip search, and taken to the police station. At the station, the police pulled down appellant’s pants. According to Officer Leech, appellant “was observed visibly to clench and tighten his buttocks area. He was told to relax ... He still kept his buttocks in a clenched manner.” Leech added: “He was, at that time, struggling with the officers. He was placed face down on the floor of the station and at that time Officer Queen forced his buttocks apart and he could see just between the cheeks the piece of brown paper which contained seven quart[er]s, apparently, of heroin.” Appellant’s counsel attempted to ask if “a stapler was used at all in” the search, but the motions court ruled that this line of questioning was irrelevant to the lawfulness of the search. The court also dismissed as irrelevant counsel’s attempts to determine from Officer Leech whether the search involved a further body cavity search and whether established police procedures were followed.
Appellant then testified that Officer Leech conducted a strip and squat search on the street. Appellant added that at the police station, with his arms handcuffed behind his back, he was forced to the floor and held there by several officers while one officer “had a little staple gun and he was stapling, all right, open it up, open your ass up.” The motions court sustained the government’s objection to further questioning along this line. The court ruled this questioning irrelevant; “[i]f the arrest was valid, then the search is okay.” The court, however, permitted appellant to submit a written proffer for appellate purposes. On the basis of the record without appellant’s proffer, the motions court credited Officer Leech’s testimony and ruled that appellant’s arrest and search were lawful.
II.
In his written proffer of October 17, 1989, appellant contends:
The search at the police station was carried out by the arresting officers knocking the defendant to the floor by kicking the defendant in the back of his legs while his hands were handcuffed behind his back and then holding the defendant face down on the floor by way of one of the officers positioning his knee on the back of the defendant’s neck. At that point, the searching officers removed the defendant’s pants and underwear, spread his legs apart, and attempted to pry apart his buttocks cheeks by the use of an office desk stapler. When the officers were unsuccessful in prying the defendant’s buttocks cheeks apart, they used the stapler to strike the defendant’s testicles which resulted in the police officer’s being able to pry the defendant’s buttocks cheeks apart and remove alleged controlled substances from that area. Following the removal of the alleged controlled substances from the cheeks of his buttocks, one of the police officers put on a rubber surgical glove and inserted one of his fingers into the rectum of the defendant in an apparent search for further contraband.
These allegations were not before the motions court when it ruled appellant’s search was lawful (although counsel had attempted to present this relevant information to the court in timely fashion).
“It has long since ceased to be true that due process of law is heedless of the means by which otherwise relevant and credible evidence is obtained.” Rochin v. California, 342 U.S. 165, 172, 72 S.Ct. 205, 209, 96 L.Ed. 183 (1952) (forcible extraction *1052of stomach’s contents “too close to the rack and the screw” to survive due process challenge). Similarly, to survive a Fourth Amendment challenge, searches must be reasonable. This
requires a balancing of the need for the particular search against the invasion of the personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.
Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 1884, 60 L.Ed.2d 447 (1979). The United States Court of Appeals for the Eleventh Circuit has isolated three factors which “contribute to the personal indignity endured by the person searched: (1) physical contact between the searcher and the person searched; (2) exposure of intimate body parts; and (3) use of force.” United States v. Vega-Barvo, 729 F.2d 1341, 1346 (11th Cir.), cert. denied, 469 U.S. 1088, 105 S.Ct. 597, 83 L.Ed.2d 706 (1984).
Generally, the more intrusive the search, the greater the amount of suspicion necessary to justify the search. In Morgan v. Barry, 596 F.Supp. 897 (D.D.C.1984), the federal district court prohibited the strip or squat search of arrested individuals in the absence of “reasonable suspicion that a weapon, contraband or evidence of a crime are concealed on the person or in the clothing of the arrestee which the District or its agents reasonably believe can only be discovered by a strip or squat search.” Id. at 898.1 Morgan did not state what level of suspicion is necessary to conduct a body cavity search.
The degree of suspicion and governmental need necessary to justify the indignity of a body cavity search has never been addressed in this jurisdiction. Rectal cavity “border searches” of suspected narcotics smugglers from Mexico, conducted by physicians in hospitals, have been held to be reasonable when based on a “clear indication” or “plain suggestion” that contraband was concealed in a body cavity. See United States v. Castle, 409 F.2d 1347, 1348 (9th Cir.1969), cert. denied, 396 U.S. 1063, 90 S.Ct. 760, 24 L.Ed.2d 757 (1970); Annotation, Propriety of Search Involving Removal of Natural Substance or Foreign Object From Body by Actual or Threatened Force, 66 A.L.R.Fed. 119 (1984). On the other hand, a forcible body cavity search occurring in a non-antiseptic and non-hygienic atmosphere with “the unjustified element of personal risk of infection and pain” has been held to violate the Fifth Amendment. Huguez v. United States, 406 F.2d 366, 382 (9th Cir.1968).
The procedures of Metropolitan Police Department recognize the need for special protections in undertaking body cavity searches.2 Metropolitan Police General Order 502.1, Processing Prisoners 3 (Apr. 13, 1979), provides in Section B(5):
Under no conditions shall a body cavity search be performed by members of the department. Should such an examination be required, the arrestee shall be transported to D.C. General Hospital, where the examination shall be performed by a physician.
*1053Similarly, Metropolitan Police Special Order, Series 85, Number 51, Searching Prisoners (Dec. 18, 1985), requires that a body cavity search “be conducted only at a medical facility under the direction of a physician.”
We need not decide at present whether these police orders, or the lower federal court decisions cited above, set forth the constitutional standard governing strip or body cavity searches. It is enough to recognize that searches incident to a valid arrest can be unconstitutional when the scope of the search is unjustified and the method used shocks the conscience. In this case, we cannot tell whether the trial court’s “judgment is plainly wrong or without evidence to support it.” D.C.Code § 17-305(a) (1989); see Davis v. United States, 564 A.2d 31, 35 (D.C.1989) (en banc). The motions court refused to consider appellant’s evidence of a forcible body cavity search and declined to permit appellant’s counsel to cross-examine Officer Leech regarding the extent of the search at the police station. We therefore remand the record to the motions court for findings of facts and conclusions of law on the second issue presented on appeal: the constitutionality of the alleged strip search and body cavity search at the police station.
Record Remanded.
. In response to Morgan, the Metropolitan Police Department issued Special Order, Series 85, Number 51, Searching Prisoners (Dec. 18, 1985), which defined “strip search” as "having an arrested person remove or arrange some or all of his/her clothing so as to permit a visual inspection of the genitals, buttocks, anus, breasts, or undergarments of such person.” A "squat search” is defined as “a search which requires an arrested person to crouch or squat while the prisoner’s undergarments and other clothing are removed or arranged to expose the genital or anal area. This type of search permits contraband or other material concealed in the genital area to become visible or dislodged." The Special Order requires the watch commander to authorize a strip, squat, or body cavity search and orders each such search to be detailed in a written log. The order reiterates the Morgan ruling that strip or squat searches may be performed only if there is reason to believe the prisoner possesses a weapon, contraband, or evidence of a crime that cannot be discovered without such a search.
. A "body cavity" search is defined as “entering an arrestee's genital and/or anal cavities in order to retrieve contraband, weapons, or evidence of a crime which may be concealed within these areas." Metropolitan Police Special Order, Series 85, Number 51, Searching Prisoners (Dec. 18, 1985). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487176/ | PER CURIAM:
Appellant was convicted of distribution of cocaine, D.C.Code § 33-541(a)(l) (1988), possession with intent to distribute cocaine, id. § 33-541(a)(l), and possession of drug paraphernalia, id. § 33-603(a). On appeal, appellant contends that the trial judge erred by admitting into evidence (1) appellant’s arrest photograph, which had not been provided to defense counsel before trial, and (2) two DEA-7 chemist’s reports which had not beén provided to defense counsel before trial, and which the applicable statute requires be provided at least five days before trial. We affirm.
I
Appellant was arrested in a “buy and bust” operation in which an undercover police officer purchased narcotics from appellant, then returned to his car and broadcast a description of the seller to an arrest team. The arrest team stopped appellant, and the undercover officer then drove by and identified appellant as the seller. At the time appellant was arrested, the police took a photograph of him; the government’s evidence at trial showed that the photograph matched the description which had been broadcast.
Appellant maintains that the admission into evidence of the arrest photograph was prejudicial error because his trial counsel had not been afforded pre-trial discovery of the photograph pursuant to Super.Ct.Crim.R. 16(a)(1)(C). At trial, appellant’s counsel objected to the introduction of the photograph and referred the court to her Rosser1 letter, which requested, in part, that the government provide all photographs relating to the case. In response, the government produced its discovery worksheet, which showed that appellant’s defense counsel had been given an opportunity to inspect the photograph. The trial judge questioned defense counsel about any possible prejudice which would result from the introduction of the photograph, noted that appellant himself “knew that he had the photograph taken,” and overruled the objection.
A defendant bears the burden of showing that a request for discoverable evidence under Rule 16 was made. Such a request can be evidenced by a letter to the prosecutor. Rosser v. United States, supra note *10811, 381 A.2d at 609. After such a request is made, the government must disclose all discoverable evidence promptly. Id. at 605; Smith v. United States, 491 A.2d 1144, 1148 n. 7 (D.C.1985). Under Rule 16(d)(2), in considering whether to impose sanctions, the court may consider (1) the reason for non-disclosure, (2) the impact of non-disclosure, and (3) the impact of a sanction on the administration of justice. Wiggins v. United States, 521 A.2d 1146, 1148 (D.C.1987). “In reviewing a trial judge’s exercise of discretion, an appellate court must defer to the judge’s choice if it was within the range of permissible alternatives, taking ‘cognizance of the nature of the determination being made and the context within which it was rendered.’ ” Id. (quoting Johnson v. United States, 398 A.2d 354, 366 (D.C.1979)). Reversal is warranted only where there is error which has substantially prejudiced appellant’s rights. (Larry) Lee v. United States, 454 A.2d 770, 776 (D.C.1982).
Appellant contends for the first time on appeal that he was substantially prejudiced by the introduction of the arrest photograph, which apparently showed that appellant had a moustache at the time of his arrest, “because the defense had no opportunity to view it beforehand,” and thus that counsel was unable effectively to cross-examine the undercover police officer as to his omission of the moustache in his description of appellant. This argument is meritless, since appellant obviously had first-hand knowledge of his appearance at the time of his arrest. Furthermore, appellant failed to present this argument in the trial court, even when the trial judge expressly asked “[wjhat’s the prejudice?” and noted that appellant himself was aware that the photo had been taken. Because appellant failed to show any prejudice, the trial judge did not abuse his discretion by failing to impose sanctions for non-disclosure on the government. See Carr v. United States, 585 A.2d 158, 163 (D.C.1991); Hordge v. United States, 545 A.2d 1249, 1260 n. 8 (D.C.1988).
II
Appellant also contends that the trial judge erred by admitting into evidence two DEA-7 chemist’s reports. Defense counsel objected to the government’s use of the reports on the grounds that she was not served with the report in compliance with D.C.Code § 33-556 despite her Rosser letter requesting such discovery. D.C.Code § 33-556 requires that the chemist’s report be provided to the defense at least five days before trial, in order “to give sufficient notice to the defendant to decide whether to call the chemist for cross-examination_” Giles v. District of Columbia, 548 A.2d 48, 50-51 (D.C.1988). This court has recently reiterated, however, that “failure to comply with this requirement does not compel exclusion of the report if it is otherwise admissible, nor is such a failure per se reversible error. Only when the breach of the five day requirement results in prejudice to the defense is a new trial required.” (Keith) Johnson v. United States, 596 A.2d 511 (D.C.1991);2 see Belton v. United States, 580 A.2d 1289, 1292-93 (D.C.1990). Under Belton, prejudice may be established by a prompt objection by counsel upon receiving the DEA-7 at trial, and a request for time to review it in order to determine whether to challenge it. (Keith) Johnson v. United States, supra, 596 A.2d at 514. Here, although defense counsel did object to the introduction of the chemist’s reports, she did not request more time in which to decide whether to call the chemist for cross-examination. The trial judge, of his own accord, recessed the trial for the day after the government’s direct examination of the police detective, who testified about the *1082significance of the DEA-7 reports, and thus gave appellant’s counsel overnight to examine the reports and to decide how best to use them. When the trial resumed the next day, defense counsel made no further objection to the introduction of the reports; nor did she request a further recess or indicate that she was unprepared to proceed. Because appellant “never asserted to the trial court that the chemical analysis described in the report was inaccurate,” nor “indicated that he wished to call the chemist for cross-examination,” nor “sought a recess or continuance ... [w]e therefore have no reason to question the trial court’s ... finding that appellant suffered no prejudice as a result of the government’s failure to furnish him with a copy of the chemist’s report five days before trial.” Belton v. United States, supra, 580 A.2d at 1294 (citations omitted).
Affirmed.
. Rosser v. United States, 381 A.2d 598 (D.C.1977).
. We note that in Johnson, supra, and in the • instant case, the chemist's report was sent by the government to the attorney who was no longer counsel of record at the time that the report was forwarded. While predecessor and successor counsel have an obligation, respectively, to forward and to inquire about case files, appellant’s counsel’s here cannot be faulted; her Rosser letter put the government on notice that she was appellant’s counsel. In any event, it is to be hoped that the errors in forwarding chemists’ reports to defense counsel in these two cases will be averted in the future. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487182/ | KRAMER, Superior Court Associate Judge:
At the conclusion of a jury trial, appellant, David R. Washington, was convicted of assault with intent to kill while armed;1 possession of a firearm during a crime of violence; 2 carrying a pistol without a license;3 possession of an unregistered firearm;4 and unlawful possession of ammunition.5 His direct appeal of those convictions was stayed to permit him to file with the trial court a motion to vacate the conviction and sentence pursuant to D.C.Code § 23-110 (1996) alleging ineffective assistance of trial counsel. Although the trial judge scheduled the matter for an evidentiary hearing, both sides stipulated that no hearing was necessary on the § 23-110 motion. The trial judge denied the motion by written order. Appellant appealed this denial and his direct appeal and his collateral appeal were consolidated. Appellant seeks reversal of his convictions on the ground that he was denied the effective assistance of trial counsel. We affirm the convictions.
I.
The evidence at trial was that at around 2:00 a.m. on June 15,1990, Marvin Franklin and his girlfriend, Adrienne Edwards, left Franklin’s home and went for a walk in the area of 18th and Q Streets, Southeast, in Washington, D.C. Franklin, who knew the area well, spotted a man and woman unknown to him standing on a comer. Franklin inquired who they were. Taking umbrage at this inquiry, the unknown man said to Franklin: “You want to know who I am? I will show you who I am.” A fist fight then ensued between Franklin and the unknown man, while a crowd of people watched. During this fight, the unknown woman walked down the street toward appellant’s house.
As they fought, Franklin heard the unknown man say, “Give it to me, I will do it!” Franklin then heard a gunshot and felt a bullet strike him in his left side. Seconds later another shot was fired, and Franklin “looked to see who was pulling the trigger.” Franklin testified that he saw appellant, who was known to him as “Stink,” about ten feet away with a gun in his hand. The second shot struck Franklin in his stomach, causing him to fall. According to Franklin, appellant then walked to within three or four feet of him and fired a third shot into his stomach. Believing that appellant was trying to kill him, Franklin turned his head to the side and closed his eyes. He then heard footsteps running away.
As soon as the police arrived on the scene, Franklin told them that he had been shot by “Stink,” whom he described as “a short fat guy” wearing “gray pants and a light colored top.” Franklin told them that “Stink” lived in the “second house on the right” and pointed toward appellant’s house. Franklin had known appellant from the neighborhood for about three years. The “second house on the *571right,” identified by the police as 1630 Q Street, Southeast, was appellant’s house.
Within minutes, the police located appellant at his house and returned him to the crime scene. There, as appellant talked with a detective on the street, Franklin’s girlfriend, Adrienne Edwards, identified him as the man she had seen shoot Franklin. The police later took appellant to the hospital, where Franklin unequivocally identified him as the shooter. Both Franklin and Edwards made in-court identifications of appellant at trial.
Appellant denied shooting Franklin and denied being out on the street at the time of the shooting. Instead, he presented defenses of alibi and misidentification. Appellant testified that throughout the night of the shooting, he had been drinking with friends near his home and had left his friends only briefly to go to the liquor store for more alcohol. Finally, he went home with his girlfriend, Siesa Redmon, and a relative, Kendra Ross. Shortly thereafter, he went to sleep in his basement bedroom, where his brother and sister-in-law were already asleep. Red-mon woke him when she heard what sounded like shooting outside. He testified that when he learned the police had come to his home, he put on his clothes and went upstairs to speak with them. Appellant’s testimony was corroborated by his sister, Jacqueline Moore, his brother, Bernard Johnson, his nephew, Tony Spencer, and Redmond and Ross.
Appellant argues that his convictions should be overturned because his trial counsel was ineffective. His first basis for this claim is counsel’s failure to file a motion to suppress the identification of Franklin’s girlfriend, Adrienne Edwards. His second basis is counsel’s failure to request a jury instruction on the defense of intoxication.
II.
Claims of ineffective assistance of counsel must be evaluated within the context of the principles set down in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, to prevail on a claim of ineffective assistance of counsel, a defendant must show both that the performance of counsel was deficient and that he was prejudiced by the deficiency. To meet the Strickland test, a defendant must show “that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” Id. at 687, 104 S.Ct. at 2064. In that respect, a court must take account of “the variety of circumstances faced by defense counsel” and “the range of legitimate decisions regarding how best to represent a criminal defendant.” Id. at 689, 104 S.Ct. at 2065. To show prejudice, a defendant must establish that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694,104 S.Ct. at 2068. See also Zanders v. United States, 678 A.2d 556, 569 (D.C.1996); McAdoo v. United States, 515 A.2d 412, 419 (D.C.1986). The trial court may address the two Strickland prongs in any order; it need not consider the adequacy of counsel’s performance if it finds the defendant has not established prejudice. Strickland, supra, 466 U.S. at 697, 104 S.Ct. at 2069-70; see also Ellerbe v. United States, 545 A.2d 1197, 1198 (D.C.), cert. denied, 488 U.S. 868, 109 S.Ct. 174, 102 L.Ed.2d 144 (1988).
“It is established in this jurisdiction that ‘[t]he finding of ineffective assistance of counsel is a mixed question of law and fact ... and upon review, [the appellate court] will not reverse the trial court’s findings of fact if they are supported by evidence in the record.’” Johnson v. United States, 613 A.2d 888, 893 (D.C.1992) (quoting Curry v. United States, 498 A.2d 534, 540 (D.C.1985)). Here, we conclude that the trial court’s findings of facts are sufficiently supported by the evidence and agree that appellant has not met his burden on either prong.
III.
There is no professional obligation to file a motion to suppress identification unless such a motion, if filed, would in all likelihood have been granted. Zanders, supra, 678 A.2d at 569; Jones v. United States, 620 A.2d 249, 254 (D.C.1993); Wright v. United States, 608 A.2d 763, 767 n. 11 (D.C.1992); Taylor v. United States, 603 A.2d 451, *572459 (D.C.1992). Thus, the failure to file a meritless motion does not constitute ineffective assistance of counsel. Moreover, “[t]he filing of pretrial motions falls within the ambit of trial strategy.” Hockman v. United States, 517 A.2d 44, 51 (D.C.1986). Thus, counsel is not ineffective in failing to file a motion if this was a reasonable tactical decision. Id. Further, if a motion to suppress would not have been successful, then an appellant cannot show the prejudice required by Strickland for a finding of ineffective assistance of counsel. Gooch v. United States, 609 A.2d 259, 265 (D.C.1992).
To prevail on a motion to suppress an identification, a defendant must show (1) that the law enforcement procedures used were unduly suggestive, and (2) that there was not a sufficient independent basis to ensure the reliability of the identification nonetheless. See Neil v. Biggers, 409 U.S. 188, 198-99, 93 5.Ct. 375, 381-82, 34 L.Ed.2d 401 (1972); Turner v. United States, 622 A.2d 667, 672 n. 4 (D.C.1993); Henderson v. United States, 527 A.2d 1262, 1267-69 (D.C.1987). In this instance, the trial court found that there was no suggestivity in the police procedures utilized during Adrienne Edwards’ identification of appellant at the scene of the shooting. The record confirms the accuracy of that finding.
Edwards initially told the police she did not know who shot Franklin. Within five minutes of the first police inquiry, however, she told them that it was “Stink” who had shot Franklin and pointed him out to the police. Appellant claims that Edwards was coached by the police to identify appellant, because during the first five minutes after their arrival on the scene, the police repeatedly asked Edwards whether she knew the identity of Franklin’s assailant and whether she could point out the shooter. Appellant asserts that Edwards’ initial failure to identify “Stink” is a “telltale sign” that her later identification was coached. There is no evidence of this in the record.
Contrary to appellant’s assertions, repeated questioning by the police during a five minute period about whether a witness knows the identity of an assailant is not by itself unduly suggestive. Nor is asking a witness whether she is able to point out a shooter. This is particularly so when, as here, there was no evidence in the record that the subject was in handcuffs, or that the show-up was staged by the police. Even a staged show-up, of course, is not alone unduly suggestive. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977). See also Turner, supra, 622 A.2d at 672. Rather, if conducted soon after a crime, such a show-up enhances the reliability of an identification. Id.; Singletary v. United States, 383 A.2d 1064, 1068 (D.C.1978).
Moreover, based on Edwards’ testimony at trial, the court below found that Edwards’ initial reluctance was the result of fear, not coaching. Specifically, the trial court found that Edwards’ “initial reluctance to identify appellant to the police was due to the psychological trauma of the shooting incident and her subsequent mindset of being afraid of onlookers in the crowd at the scene of the shooting.” Thus, there was no evidence of suggestivity which would have provided a basis for suppressing her identification. It follows that there is no basis for concluding that trial counsel was ineffective for failing to file a motion to suppress.6
In any event, as the trial court found, there was a substantial independent basis for Edwards’ identification. She actually knew appellant from the neighborhood, having seen him several times. She even knew his nickname. Moreover, she was within ten to twelve feet of him at the time Franklin was shot and had a clear and unobstructed view of the shooting which occurred in a well lit street. Her identification took place within fifteen minutes of the shooting. Her initial reluctance to identify him was overcome upon realizing Franklin might well die. Thus, the totality of the circumstances re-*573fleets the reliability of her identification. Neil v. Biggers, supra, 409 U.S. at 199, 93 S.Ct. at 382; Henderson v. United States, 527 A.2d 1262, 1268 (D.C.1987). In sum, the trial court did not err in concluding that trial counsel was not ineffective in failing to file a motion to suppress identification since such a motion would not have been granted.7
IV.
Appellant also contends that his trial counsel was ineffective because he did not request an intoxication-defense instruction.8 Counsel is not required, however, to ask for every conceivable instruction, particularly if the request has little or no chance of being granted. Jefferson v. United States, 474 A.2d 147, 151 (D.C.1984).9 In denying the § 23-110 motion, the trial judge concluded that the evidence at trial did not justify giving such an instruction. We agree. Since the evidence at trial did not support giving this instruction, counsel’s failure to ask for it did not represent deficient performance. Nor can appellant show he was prejudiced by this failure.
In the District of Columbia, voluntary intoxication does not excuse criminal actions, although it may negate a defendant’s specific intent. See Durant v. United States, 551 A.2d 1318, 1329 (D.C.1988); Carter v. United States, 531 A.2d 956, 964 n. 20 (D.C. 1987); Harris v. United States, 375 A.2d 505, 508 (D.C.1977). Thus, in this case, such an instruction could only serve to reduce the offense of assault with intent to kill while armed to the lesser offense of assault with a dangerous weapon. See Leftwitch v. United States, 460 A.2d 993, 997 n. 3 (D.C.1983) (citing Ingram v. United States, 122 U.S.App.D.C. 334, 337, 353 F.2d 872, 875 (1965)). It would not affect appellant’s other convictions, which are general intent rather than specific intent crimes.
As this court wrote in Smith v. United States, 309 A.2d 58, 59 (D.C.1973), “The evidence required to warrant the ‘intoxication-defense’ instruction must reveal such a degree of complete drunkenness that a person is incapable of forming the necessary intent essential to the commission of the crime charged.” See also Nicholson v. United States, 368 A.2d 561, 565 (D.C.1977); Williams v. United States, 331 A.2d 341, 343 (D.C.1975); Powell v. United States, 455 A.2d 405, 412 n. 10 (D.C.1983). Thus, there must be evidence that the defendant “has reached a point of incapacitating intoxication.” 10 Smith, supra, 309 A.2d at 59. “Drunkenness, while efficient to reduce or remove inhibitions, does not readily negate intent.” Heideman v. United States, supra, 104 U.S.App. D.C. at 131, 259 F.2d at 946.
*574Conclusory statements about the use of alcohol are insufficient to establish the necessary degree of intoxication. Rather, there must be evidence of the type and quantity of alcohol consumed, the length of time during which it was consumed, and the specific manner in which the consumption made the defendant incapable of acting with specific intent. Williams, supra, 331 A.2d at 343; Powell, supra, 455 A.2d at 412 n. 10. In the absence of such specificity, a defendant’s testimony that he was intoxicated and under the influence of drugs at the time of the commission of an offense was not sufficient for the instruction to be given. See Williams, supra, 331 A.2d at 343. Likewise, evidence that the defendant was a heavy drinker, that he had been drinking on the day of the offense, and that he was intoxicated at the time of the commission of the offense was not sufficient. See Powell, supra, 455 A.2d at 412 n. 10.
Moreover, the trial court may look to the facts surrounding the offense to decide if the evidence could create a reasonable doubt in the mind of a reasonable juror as to whether a defendant possessed the requisite specific intent. See Heideman, supra, 104 U.S.App.D.C. at 132, 259 F.2d at 947. In a robbery case, for example, the D.C. Circuit found not only that the evidence of incapacitating drunkenness was inadequate standing alone, but also that the defendant’s careful advance preparation for the crime showed that he was working “logically, rationally and efficiently to the execution of his criminal purpose.” Id. at 131-32, 259 F.2d at 946-47. Similarly, in United States v. Martin, 154 U.S.App.D.C. 359, 475 F.2d 943 (1973), a case like the present one involving the charge of assault with intent to kill while armed, the D.C. Circuit concluded that “the very nature of the acts in question, whereby appellant was able to lunge nearly six feet and deliver a nearly fatal wound to one adversary and then turn and attempt to overcome a second, supports the conclusion that he [was not intoxicated, but] was in full possession of Ms faculties.” 154 U.S.App.D.C. at 366, 475 F.2d at 950.
In tMs ease, there was substantial evidence that appellant had been drinking on the night Franklin was shot. Appellant’s sister testified he was with friends drinking Cisco wine and Red Bull beer. Appellant’s girlfriend, Siesa Redmon, testified that he had been drinking for a long time — from the evening into the early morning hours. Appellant’s nephew, Tony Spencer, testified that both he and appellant were drinking an unknown type of alcohol from small cups. Appellant himself testified that he was drinking beer and perhaps champagne.
Neither appellant nor any of the other defense witnesses, however, was specific about how much alcohol he drank. Over a time span of hours, there may be a substantial difference between the effects resulting from sipping a few drinks and the effects resulting from imbibing one drink after another. Appellant gave only conclusory testimony that he was “real drunk,” but the specificity required about the quantity of alcohol consumed was missing. Appellant’s testimony that he drank “a whole lot,” in the absence of greater specificity, is an inadequate basis for a jury to evaluate whether he had consumed so much alcohol that he was no longer capable of forming a specific intent to kill.
Nor was there testimony concerning how this consumption made appellant incapable of forming the specific intent to Mil Franklin. That absence is particularly significant given the other evidence in the case. The jury would have to be satisfied that appellant was Franklin’s shooter before reaching the issue of intoxication. Assuming he was the shooter, the evidence showed that he had responded to 18th and Q to aid the unknown man who was in the fight with Franklin; had brought a firearm to the scene with him; had first shot Franklin two times; had then moved closer to Franklin and stood over him to shoot him a third time in Ms stomach; and had left the scene to avoid detection. Appellant’s own testimony was that within an hour of the offense, he had been capable of forming the intent to take a trip to the liquor store for more alcohol, and that within fifteen minutes of the shooting he had been easily awakened to respond to Ms girlfiriend’s concerns about hearing shots outside. Thereafter, he had dressed, left Ms bedroom when summoned to talk to the police, and had aceompamed them back to the scene. In their totality, appellant’s actions before, dur*575ing and after the shooting showed that he had in no way “reached [the] point of incapacitating intoxication.” Smith, supra, 309 A.2d at 59. Rather, he was fully capable of acting “logically, rationally and efficiently.” See Heideman, supra, 104 U.S.App.D.C. at 132, 259 F.2d at 947. The evidence “could not create a reasonable doubt in the mind of any reasonable [juror]” as to whether appellant possessed the capacity to form the specific intent to kill. Id.11
In the absence of an adequate factual basis for the intoxication-defense instruction, counsel cannot be found deficient in failing to request it. Nor can appellant make the requisite finding of prejudice.12
Accordingly, the convictions of appellant are
Affirmed.
. D.C.Code §§ 22-501, -3202 (1996).
. D.C.Code § 22-3204(b).
. D.C.Code § 22-3204(a).
. D.C.Code § 6-2311(a) (1995).
. D.C.Code § 6-2361(3).
. Furthermore, in an affidavit of trial counsel submitted below by the government, counsel represented that he did not file a motion to suppress Edwards' identification because in his judgment, her initial inability to identify appellant would actually help appellant. The (rial court found that this decision fell well within the wide latitude accorded counsel in making tactical judgments. We find no basis for overruling that conclusion.
. “This court is bound by the trial court’s findings on whether identification procedures were impermissibly suggestive and whether an identification was reliable ‘if they are supported by the evidence and in accordance with law.’ " Turner, supra, 622 A.2d at 672 n. 3 (citing Stewart v. United States, 490 A.2d 619, 623 (D.C.1985) (citation omitted)). See also Garris v. United States, 559 A.2d 323, 327 (D.C.1989).
. See Criminal Jury Instructions for the District of Columbia, No. 5.11 (4th ed.1993).
. Upon request of a defendant’s counsel, the trial court must instruct the jury on any recognized defense "for which there exists evidence sufficient for a reasonable juror to find in [the defendant’s] favor.” Bostick v. United States, 605 A.2d 916, 917 (D.C.1992) (quoting Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 887, 99 L.Ed.2d 54 (1988)). See also Jackson v. United States, 645 A.2d 1099, 1101 (D.C.1994). This does not mean, however, that to avoid being found ineffective, counsel must request every possible defense instruction. Rather, counsel is entitled to exercise some reasonable tactical judgment and to take into account such factors as the strength of each side's evidence and a defendant’s willingness or unwillingness to encourage jury compromise. In reviewing such tactical decisions, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered trial strategy.’ ” Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065 (citation omitted).
. It may be that a first degree murder charge does not require the same degree of drunkenness to justify an intoxication-defense instruction given the elements of premeditation and deliberation in addition to the element of specific intent. See Harris v. United States, 375 A.2d 505, 508 (D.C.1977); Heideman v. United States, 104 U.S.App.D.C. 128, 131-32 n. 10, 259 F.2d 943, 946 n. 10 (1958), cert. denied, 359 U.S. 959, 79 S.Ct. 800, 3 L.Ed.2d 767 (1959).
. The facts of the instant case are in substantial contrast to those of United. States v. Scott, 174 U.S.App.D.C. 96, 529 F.2d 338 (1975) where several witnesses, including appellant, had testified at trial that appellant drank excessively on the morning he attempted to rob a bank; that the "odor” of alcohol on his breath was “repulsive”; that he was a chronic alcoholic who had been treated for that condition at least eighteen times at a clinic; and that although he carried no weapon during the course of the attempted robbery, one hand was thrust toward the teller with "the first finger bent with a knuckle extended" “as though he might have wanted to hold a gun or was holding a gun.” Id. at 97, 529 F.2d at 339.
. The trial court also found that counsel made a reasonable tactical decision by not requesting the intoxication instruction, since it could detract from the stronger defenses of alibi and misidenti-fication. That finding was not clearly erroneous. See McKinnon v. United States, 644 A.2d 438, 443-44 (D.C.1994); Jefferson, supra, 474 A.2d at 151. This is particularly so since the record below is silent with respect to counsel’s reasons for not requesting the instruction. It is appellant who bears the burden of overcoming the presumption of counsel's competence. See Strickland, supra, 466 U.S. at 689, 104 S.Ct. at 2065. On the record here, that presumption has not been overcome. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487215/ | Nebraska Supreme Court Online Library
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11/18/2022 09:06 AM CST
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MANN V. MANN
Cite as 312 Neb. 275
Asia R. Mann, now known as
Asia R. Harrison, appellee, v.
Brian L. Mann, appellant.
___ N.W.2d ___
Filed August 26, 2022. No. S-19-1194.
1. Jurisdiction: Appeal and Error. A jurisdictional question which does
not involve a factual dispute is determined by an appellate court as a
matter of law.
2. Final Orders: Appeal and Error. A trial court’s decision to certify a
final judgment pursuant to Neb. Rev. Stat. § 25-1315(1) (Reissue 2016)
is reviewed for an abuse of discretion, but whether § 25-1315 is impli-
cated in a case is a question of law which an appellate court considers
de novo.
3. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it, irrespective of
whether the issue is raised by the parties.
4. Statutes: Appeal and Error. The right of appeal in Nebraska is purely
statutory, and unless a statute provides for an appeal, such right does
not exist.
5. Legislature: Final Orders: Appeal and Error. The Legislature has
authorized appeals from judgments and decrees, as well as final orders,
made by the district court.
6. Final Orders: Appeal and Error. In cases that present multiple claims
for relief or involve multiple parties, Neb. Rev. Stat. § 25-1315(1)
(Reissue 2016) permits a trial court to certify an otherwise interlocutory
order as a final, appealable judgment under the limited circumstances
set forth in the statute.
7. ____: ____. When a court properly directs the entry of a final judgment
under Neb. Rev. Stat. § 25-1315(1) (Reissue 2016) as to certain claims
or parties, the order is treated as a judgment from which an aggrieved
party can appeal.
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8. Claims: Parties. Neb. Rev. Stat. § 25-1315(1) (Reissue 2016) is impli-
cated only when a case presents more than one claim for relief or
involves multiple parties, and the court enters an order which adjudi-
cates fewer than all the claims or the rights and liabilities of fewer than
all the parties.
9. Actions: Words and Phrases. For purposes of determining whether
a case presents more than one “claim for relief” under Neb. Rev. Stat.
§ 25-1315(1) (Reissue 2016), the term is not synonymous with “issue”
or “theory of recovery,” but is instead the equivalent of a “cause
of action.”
10. Claims: Parties: Judgments: Appeal and Error. When a case involves
multiple claims for relief or multiple parties, and the court has entered
an order adjudicating fewer than all the claims or the rights and liabili-
ties of fewer than all the parties, then, absent a specific statute govern-
ing the appeal providing otherwise, Neb. Rev. Stat. § 25-1315 (Reissue
2016) controls and mandates that the order is not immediately appeal-
able unless the trial court issues an express direction for the entry of
judgment upon an express determination that there is no just reason
for delay.
11. Claims: Parties: Judgments. Absent the entry of a final judgment
under Neb. Rev. Stat. § 25-1315(1) (Reissue 2016), orders adjudicating
fewer than all claims against all parties are not final and are subject to
revision at any time before the entry of judgment adjudicating all the
claims and the rights and liabilities of all the parties.
12. Final Orders: Words and Phrases. The term “final judgment” as used
in Neb. Rev. Stat. § 25-1315(1) (Reissue 2016) is the functional equiva-
lent of a “final order” within the meaning of Neb. Rev. Stat. § 25-1902
(Cum. Supp. 2020).
13. Final Orders: Appeal and Error. To be appealable, an order must
satisfy the final order requirements of Neb. Rev. Stat. § 25-1902 (Cum.
Supp. 2020) and, where implicated, Neb. Rev. Stat. § 25-1315(1)
(Reissue 2016).
14. Claims: Parties: Final Orders: Appeal and Error. In cases where
Neb. Rev. Stat. § 25-1315(1) (Reissue 2016) is implicated, and no more
specific statute governs the appeal, an order resolving fewer than all
claims against all parties is not final and appealable if it lacks proper
§ 25-1315 certification. This is so even if the order otherwise satisfies
one of the final order categories in Neb. Rev. Stat. § 25-1902(1) (Cum.
Supp. 2020).
15. Actions: Final Orders. Neb. Rev. Stat. § 25-1315(1) (Reissue 2016)
can be implicated in civil actions, in special proceedings, and in civil
actions joined with special proceedings.
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Cite as 312 Neb. 275
Petition for further review from the Court of Appeals,
Moore, Bishop, and Welch, Judges, on appeal thereto from
the District Court for Douglas County, J Russell Derr, Judge.
Judgment of Court of Appeals vacated and remanded with
directions.
Aaron F. Smeall and Jacob A. Acers, of Smith, Slusky,
Pohren & Rogers, L.L.P., for appellant.
Kathryn D. Putnam, of Astley Putnam, P.C., L.L.O., for
appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
This is an interlocutory appeal from an order of par-
tial summary judgment entered in a proceeding brought to
modify custody and child support. The Nebraska Court of
Appeals concluded the summary judgment order was imme-
diately appealable as a final order in a special proceeding
under Neb. Rev. Stat. § 25-1902(1)(b) (Cum. Supp. 2020) and
affirmed. On further review, we conclude that Neb. Rev. Stat.
§ 25-1315(1) (Reissue 2016) was also implicated because the
case involved multiple claims for relief and the partial sum-
mary judgment order resolved fewer than all such claims.
Because § 25-1315(1) is implicated but has not been satis-
fied, we must vacate the decision of the Court of Appeals and
remand the cause with directions to dismiss the appeal for lack
of jurisdiction.
BACKGROUND
In 2009, Asia R. Mann, now known as Asia R. Harrison
(Harrison), gave birth out of wedlock to a daughter, Maleah D.
In 2010, a California court established paternity and entered
a judgment which granted Harrison sole legal and physical
custody of Maleah and granted visitation rights to Maleah’s
biological father.
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Marriage and Divorce
In 2011, Harrison married Brian L. Mann. Their marriage
produced two children. In 2016, Harrison filed a complaint for
dissolution in the district court for Douglas County, Nebraska.
While the dissolution was pending, Maleah’s biological father
registered the California paternity judgment in the same court.
However, no party brought the registered paternity judgment
to the attention of the dissolution court before the decree was
entered, nor was the court informed that Maleah was the sub-
ject of a California custody judgment.
In July 2018, the district court entered a stipulated decree
dissolving the parties’ marriage. The decree provided for
joint legal and physical custody of the parties’ two children.
Additionally, the decree recited that Mann stood in loco paren-
tis to Maleah and ordered the parties to share joint physical
custody of Maleah, with Harrison having sole legal custody.
The decree also approved the parties’ stipulated parenting plan
and ordered Mann to pay child support for all three children.
Neither party appealed the 2018 decree.
Complaint to Modify Joined With
Declaratory Judgment Action
In July 2019, Mann filed a complaint to modify his child
support obligation and certain provisions of the parenting plan.
Harrison’s answer generally denied that Mann was entitled
to modification. Harrison’s answer also alleged two counter-
claims. Her first counterclaim was framed as an action under
the Uniform Declaratory Judgments Act, 1 and it attacked the
validity of provisions in the 2018 decree relating to Maleah’s
custody and care. 2 Harrison alleged, summarized, that when the
decree was entered, the 2010 California judgment of paternity
1
Neb. Rev. Stat. §§ 25-21,149 to 25-21,164 (Reissue 2016).
2
See Neb. Rev. Stat. § 42-346 (Reissue 2016) (providing that divorce decrees
are “conclusively presumed . . . valid in all respects, notwithstanding some
defect . . . unless an action is brought within two years from the entry of
such decree of divorce attacking the validity thereof”).
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and custody was still in full force and effect, and that California
had not relinquished its exclusive and continuing jurisdiction
over Maleah under the Uniform Child Custody Jurisdiction and
Enforcement Act. 3 She therefore alleged the Nebraska court
did not have subject matter jurisdiction over Maleah when the
dissolution decree was entered, and she sought a declaration
that “any orders for [Maleah’s] custody and care should be
declared void as a matter of law.” Harrison’s second counter-
claim sought to modify custody of the other two children to
give her sole legal and physical custody.
Partial Summary Judgment Granting
Declaratory Relief
Both parties moved for partial summary judgment on
Harrison’s counterclaim for declaratory judgment. After an
evidentiary hearing, the district court entered an order which
granted Harrison’s summary judgment motion and vacated that
“portion of the Decree that provides for ‘in loco parentis’ rights
to [Mann] with regard to Maleah.” The order did not expressly
overrule Mann’s summary judgment motion or address his sup-
port obligations regarding Maleah.
Mann filed a motion to clarify and to set a supersedeas bond.
In an order entered December 20, 2019, the district court clari-
fied its prior order by granting Harrison’s motion for summary
judgment, denying Mann’s motion for summary judgment,
voiding every provision in the 2018 decree and parenting plan
pertaining to Maleah, and eliminating all of Mann’s support
obligations regarding Maleah. The December order also denied
Mann’s request for a supersedeas bond.
Mann filed a notice of appeal from the partial summary
judgment order, assigning error to the district court’s conclu-
sion that it lacked subject matter jurisdiction over Maleah under
the Uniform Child Custody Jurisdiction and Enforcement Act
when the decree was entered. It is undisputed that when the
3
Neb. Rev. Stat. §§ 43-1226 to 43-1266 (Reissue 2016 & Cum. Supp.
2020).
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notice of appeal was filed, the parties’ competing complaints to
modify custody and support remained pending and unresolved
in the district court. Likewise, it is undisputed that Mann did
not ask the court to enter final judgment on the declaratory
judgment claim under § 25-1315(1), and no such certification
was issued sua sponte.
Court of Appeals
The Court of Appeals affirmed. 4 It first addressed appellate
jurisdiction, rejecting Harrison’s argument that the partial sum-
mary judgment order was not immediately appealable under
any of the final order categories enumerated in § 25-1902.
Instead, the Court of Appeals reasoned that custody modi-
fications are considered special proceedings, 5 so the order
granting partial summary judgment was an order “affecting
a substantial right made during a special proceeding” under
§ 25-1902(1)(b). The opinion did not discuss or distinguish our
cases reciting the rule that partial summary judgment orders
are interlocutory in nature and will not be considered final
4
Mann v. Mann, 29 Neb. App. 548, 956 N.W.2d 318 (2021).
5
See, Yori v. Helms, 307 Neb. 375, 390, 949 N.W.2d 325, 337 (2020)
(“[p]roceedings regarding modification of a marital dissolution are
special proceedings”); Huskey v. Huskey, 289 Neb. 439, 449, 855 N.W.2d
377, 385 (2014) (“an order modifying custody arises from a special
proceeding”); Fitzgerald v. Fitzgerald, 286 Neb. 96, 105, 835 N.W.2d 44,
51 (2013) (“modification of child custody and support in a dissolution
action is . . . a special proceeding”); Steven S. v. Mary S., 277 Neb. 124,
129, 760 N.W.2d 28, 33 (2009) (“proceedings regarding modification of
a marital dissolution . . . are special proceedings”); State ex rel. Reitz
v. Ringer, 244 Neb. 976, 980, 510 N.W.2d 294, 299 (1994), overruled
on other grounds, Cross v. Perreten, 257 Neb. 776, 600 N.W.2d 780
(1999) (“custody determinations, which are controlled by § 42-364, are
considered special proceedings”). But see Carmicheal v. Rollins, 280
Neb. 59, 72, 783 N.W.2d 763, 772 (2010) (Connolly, J., concurring)
(acknowledging prior holdings treating custody modifications as special
proceedings but noting they are arguably “more properly” treated as order
affecting substantial right made on summary application in action after
judgment is rendered).
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until all issues in the case are determined. 6 And although the
Court of Appeals noted that the modification case presented
other claims for relief that had not yet been resolved, 7 its
jurisdictional analysis did not address whether § 25-1315(1)
was implicated.
After concluding it had appellate jurisdiction, the Court of
Appeals framed the question on appeal as whether the district
court had the authority to vacate or modify portions of the
2018 decree upon learning that it “should not have exercised
jurisdiction on issues related to Maleah’s custody due to the
California court’s continuing jurisdiction.” 8 It answered that
question in the affirmative, finding the necessary authority in
Neb. Rev. Stat. § 25-2001(4) (Reissue 2016), which governs
a district court’s power to vacate or modify judgments after
term. The Court of Appeals therefore affirmed the district
court’s order granting partial summary judgment in favor
of Harrison.
We granted Mann’s petition for further review and ordered
supplemental briefing. Among other questions, we asked the
parties to brief whether, to be immediately appealable, an order
of partial summary judgment which adjudicates fewer than all
claims for relief presented in a custody modification case must
satisfy both § 25-1902 and § 25-1315. The parties submitted
supplemental briefs addressing this question, which we sum-
marize later in our jurisdictional analysis.
ASSIGNMENTS OF ERROR
On further review, Brian assigns three errors, which can
be consolidated and restated into one. He asserts the Court of
Appeals erred in concluding the district court had authority,
6
See, e.g., O’Connor v. Kearny Junction, 295 Neb. 981, 987, 893 N.W.2d
684, 690 (2017) (“[p]artial summary judgments are usually considered
interlocutory. They must ordinarily dispose of the whole merits of the case
to be considered final . . .”).
7
See Mann, supra note 4.
8
Id. at 559, 956 N.W.2d at 327.
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under § 25-2001(4), to vacate the 2018 decree provisions relat-
ing to Maleah.
STANDARD OF REVIEW
[1] A jurisdictional question which does not involve a fac-
tual dispute is determined by an appellate court as a matter
of law. 9
[2] A trial court’s decision to certify a final judgment pursu-
ant to § 25-1315(1) is reviewed for an abuse of discretion, 10
but whether § 25-1315 is implicated in a case is a question of
law which an appellate court considers de novo.
ANALYSIS
Appellate Jurisdiction
[3] Before reaching the legal issues presented for review, it
is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it, irrespective of whether
the issue is raised by the parties. 11
[4,5] The right of appeal in Nebraska is purely statutory,
and unless a statute provides for an appeal, such right does
not exist. 12 The Legislature has authorized appeals from judg-
ments and decrees, as well as final orders, made by the district
court. 13 A judgment is defined in Neb. Rev. Stat. § 25-1301
(Cum. Supp. 2020) to mean “the final determination of the
rights of the parties in an action.” 14 Final orders are defined in
§ 25-1902, which currently recognizes four categories of final
9
Clason v. LOL Investments, 308 Neb. 904, 957 N.W.2d 877 (2021).
10
Castellar Partners v. AMP Limited, 291 Neb. 163, 864 N.W.2d 391
(2015).
11
See Cattle Nat. Bank & Trust Co. v. Watson, 293 Neb. 943, 880 N.W.2d
906 (2016).
12
Heckman v. Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017).
13
See Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2020).
14
See, also, Becher v. Becher, 311 Neb. 1, 27, 970 N.W.2d 472, 492 (2022)
(“[a] ‘judgment’ is a court’s final consideration and determination of the
respective rights and obligations of the parties to an action as those rights
and obligations presently exist”).
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orders; some categories pertain to actions, 15 and one pertains to
special proceedings. 16
[6,7] Additionally, in cases that present multiple claims for
relief or involve multiple parties, § 25-1315(1) permits a trial
court to certify an otherwise interlocutory order as a final,
appealable judgment under the limited circumstances set forth
in the statute. 17 Subsection (1) of that statute provides:
When more than one claim for relief is presented in an
action, whether as a claim, counterclaim, cross-claim, or
third-party claim, or when multiple parties are involved,
the court may direct the entry of a final judgment as to
one or more but fewer than all of the claims or parties
only upon an express determination that there is no just
reason for delay and upon an express direction for the
entry of judgment. In the absence of such determina-
tion and direction, any order or other form of decision,
however designated, which adjudicates fewer than all
the claims or the rights and liabilities of fewer than all
the parties shall not terminate the action as to any of the
claims or parties, and the order or other form of deci-
sion is subject to revision at any time before the entry of
judgment adjudicating all the claims and the rights and
liabilities of all the parties.
When a court properly directs the entry of a final judgment
under § 25-1315(1) as to certain claims or parties, the order
is treated as a judgment from which an aggrieved party can
appeal. 18
Here, the Court of Appeals concluded it had appellate juris-
diction, reasoning the order granting partial summary judgment
15
See § 25-1902(1)(a) and (c).
16
See § 25-1902(1)(b).
17
Castellar Partners, supra note 10.
18
See Cerny v. Todco Barricade Co., 273 Neb. 800, 733 N.W.2d 877 (2007).
See, also, § 25-1912(1) (providing procedure for appeals from district
court); Neb. Rev. Stat. § 25-2729(1) (Cum. Supp. 2020) (providing appeal
procedure from county court).
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was an order affecting a substantial right made in a special
proceeding and thus was a final order under § 25-1902(1)(b).
Neither party challenges this conclusion on further review, and
we express no opinion on the Court of Appeals’ final order
analysis or the circumstances, if any, under which a sum-
mary judgment order granting declaratory relief can satisfy
the final order requirements of § 25-1902(1)(b). Instead, we
focus on a different jurisdictional question: Is this a case where
§ 25-1315(1) is implicated?
The parties addressed this question in their supplemen-
tal briefing. Mann argues, summarized, that our appellate
jurisdiction turns exclusively on the final order require-
ments in § 25-1902(1)(b). He reasons that “[w]here an order
already meets the clear statutory definition of a final order
under [§ 25-1902], a separate order by the trial court des-
ignating that same order as final under [§ 25-1315] would
be superfluous for the purposes of determining appellate
jurisdiction.” 19 And he contends this case presents a final
order under § 25-1902(1)(b) because the summary judgment
order was entered in a special proceeding and affected his
substantial rights.
Harrison argues that even if the summary judgment order
was entered in a special proceeding, both § 25-1315(1) and
§ 25-1902 must be satisfied in this case to confer appellate
jurisdiction. Harrison argues that § 25-1315(1) is implicated
here because the case presents multiple claims for relief and
the summary judgment order resolved only the counterclaim
for declaratory judgment. She also argues, “There is no indica-
tion that the [L]egislature intended to [exempt] custody modi-
fication proceedings, or any other type of special proceedings
from [the] requirements” 20 of § 25-1315.
To address the parties’ competing jurisdictional arguments,
we begin by reviewing § 25-1315(1) and the pertinent cases
construing it.
19
Supplemental brief for appellant at 8.
20
Supplemental brief for appellee at 9.
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§ 25-1315(1)
Under Nebraska’s liberal joinder rules, a case can involve
multiple plaintiffs, multiple defendants, and multiple claims for
relief, including counterclaims, cross-claims, and third-party
claims. 21 Appellate jurisdiction is relatively straightforward
when a judgment or decree resolves all claims presented as to
all parties. But before § 25-1315 was enacted, the rules gov-
erning interlocutory appeals in civil cases involving multiple
claims or multiple parties generally provided:
[A]n order that effected a dismissal with respect to one
of multiple parties was a final, appealable order, and
the complete dismissal with prejudice of one of multiple
causes of action was a final, appealable order, but an
order dismissing one of multiple theories of recovery, all
of which arose from the same set of operative facts, was
not a final order for appellate purposes. 22
Uncertainty in applying these rules in multiclaim, multiparty
cases prompted some parties to file premature appeals, and
others to miss appeal deadlines altogether. 23
To clarify and simplify appellate jurisdiction in cases involv-
ing multiple claims and multiple parties, 24 the Legislature
enacted what is now codified as § 25-1315. 25 In enact-
ing § 25-1315, the Legislature attempted to strike a balance
21
See, e.g., Neb. Rev. Stat. §§ 25-311, 25-320, 25-701, and 25-705 (Reissue
2016).
22
TDP Phase One v. The Club at the Yard, 307 Neb. 795, 801, 950 N.W.2d
640, 646 (2020).
23
See, e.g., Thrift Mart v. State Farm Fire & Cas. Co., 251 Neb. 448,
558 N.W.2d 531 (1997), overruled on other grounds, Hornig v. Martel
Lift Systems, 258 Neb. 764, 606 N.W.2d 764 (2000) (missed deadline to
appeal); Lewis v. Craig, 236 Neb. 602, 463 N.W.2d 318 (1990) (appeal
prematurely filed).
24
See Bargmann v. State, 257 Neb. 766, 773, 600 N.W.2d 797, 804 (1999)
(noting what is now codified as § 25-1315 was enacted to “simplif[y]”
appellate jurisdiction and “clear[] up many of the questions regarding final
orders when there are multiple parties and claims”).
25
See § 25-705(6) and (7) (Cum. Supp. 1998).
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between the undesirability of piecemeal appeals and the poten-
tial need for making review available at a time that best serves
the needs of the parties. 26
[8,9] By its terms, § 25-1315(1) is implicated only when a
case presents more than one claim for relief or involves multiple
parties, and the court enters an order which adjudicates fewer
than all the claims or the rights and liabilities of fewer than
all the parties. 27 For purposes of determining whether a case
presents more than one “claim for relief” under § 25-1315(1),
we have said the term is not synonymous with “issue” or
“theory of recovery,” but is instead the equivalent of a “cause
of action.” 28 Because of this construction, our cases sometimes
use the phrases “claim for relief” and “cause of action” inter-
changeably when analyzing whether § 25-1315 is implicated. 29
[10,11] When § 25-1315 is implicated, we have explained
the consequences this way:
[When a case involves] multiple claims for relief or
multiple parties, and the court has [entered an order
adjudicating] fewer than all the claims or the rights and
liabilities of fewer than all the parties, then, absent a
specific statute governing the appeal providing other-
wise, § 25-1315 controls and mandates that the order is
not immediately appealable unless the lower court issues
an “express direction for the entry of judgment” upon
“an express determination that there is no just reason
for delay.” 30
26
TDP Phase One, supra note 22.
27
See, Clason, supra note 9; State on behalf of Marcelo K. & Rycki K. v.
Ricky K., 300 Neb. 179, 912 N.W.2d 747 (2018); Rafert v. Meyer, 298
Neb. 461, 905 N.W.2d 30 (2017); Guardian Tax Partners v. Skrupa Invest.
Co., 295 Neb. 639, 889 N.W.2d 825 (2017); Cerny, supra note 18.
28
State v. Poindexter, 277 Neb. 936, 766 N.W.2d 391 (2009). See, also,
Poppert v. Dicke, 275 Neb. 562, 747 N.W.2d 629 (2008).
29
Compare, e.g., Guardian Tax Partners, supra note 27 (cause of action),
with Cerny, supra note 18 (claim for relief).
30
TDP Phase One, supra note 22, 307 Neb. at 800, 950 N.W.2d at 645-46.
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Further, absent the entry of a final judgment under § 25-1315(1),
orders adjudicating fewer than all claims against all parties are
not final and are “‘subject to revision at any time before the
entry of judgment adjudicating all the claims and the rights and
liabilities of all the parties.’” 31
Here, the Court of Appeals analyzed whether the summary
judgment order satisfied the final order requirement under
§ 25-1902, but it did not discuss whether § 25-1315(1) is also
implicated in this case. As we explain, it is implicated here,
and because the district court did not certify the order as a final
judgment under § 25-1315(1), we lack appellate jurisdiction.
§ 25-1315 Is Implicated
Although this case does not involve more than one plaintiff
or defendant, it does involve multiple claims for relief, and no
party contends otherwise. Mann’s complaint sought to modify
child support and the parenting plan under the 2018 decree,
and Harrison’s answer alleged a counterclaim which sought to
modify custody. In addition, Harrison filed a counterclaim for
declaratory judgment, asking that portions of the 2018 decree
pertaining to Maleah be declared void for lack of subject mat-
ter jurisdiction. Without addressing the propriety of Harrison’s
choice to attack the validity of the decree through a declaratory
judgment action, this is plainly a case where the order of partial
summary judgment adjudicated fewer than all of the claims for
relief that were permissively joined in this modification case.
We therefore conclude that § 25-1315(1) is implicated here
because the case involves multiple claims for relief, and the
court entered an order adjudicating fewer than all of them. 32
And because § 25-1315(1) was implicated, the partial summary
judgment order resolving the declaratory judgment action was
not appealable unless the summary judgment order was prop-
erly certified under § 25-1315(1) or until all of the claims for
31
Boyd v. Cook, 298 Neb. 819, 826, 906 N.W.2d 31, 38 (2018). See
§ 25-1315(1).
32
See Clason, supra note 9.
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relief were resolved. The Court of Appeals thus erred by not
addressing § 25-1315(1) in its jurisdictional analysis.
Both § 25-1902 and § 25-1315
Must Be Satisfied
Mann argues that certification under § 25-1315 was unnec-
essary because “[a]n order for partial summary judgment in a
custody modification which satisfies [§] 25-1902(1)(b) need
not also satisfy [§] 25-1315.” 33 His argument is contrary to
settled precedent and must be soundly rejected. To explain
why, we begin by reviewing the role that § 25-1902 plays in
our § 25-1315 jurisprudence.
[12,13] For nearly 20 years, our cases have construed the
term “final judgment” as used in § 25-1315(1) as “the func-
tional equivalent of a ‘final order’ within the meaning of
[§ 25-1902].” 34 In other words, we have looked to the final
order statute to provide the standard for finality 35 that must be
satisfied for an order to be certified as a “final judgment” under
§ 25-1315. To that end, our cases hold that “a ‘final order’ is
a prerequisite to an appellate court’s obtaining jurisdiction of
an appeal initiated pursuant to § 25-1315(1).” 36 Thus, it is a
well-settled principle in our § 25-1315 jurisprudence that to be
appealable, an order must satisfy the final order requirements
of § 25-1902 and, where implicated, § 25-1315(1). 37
33
Supplemental brief for appellant at 7.
34
Cerny, supra note 18, 273 Neb. at 805, 733 N.W.2d at 884, citing Bailey
v. Lund-Ross Constructors Co., 265 Neb. 539, 657 N.W.2d 916 (2003).
35
See Cerny, supra note 18, 273 Neb. at 808, 733 N.W.2d at 885 (explaining
that § 25-1315(1) requires finality “in the sense that [there] is an ultimate
disposition of an individual claim entered in the course of a multiple
claims action”).
36
Bailey, supra note 34, 265 Neb. at 546, 657 N.W.2d at 923. See, also,
Rafert, supra note 27.
37
See Tyrrell v. Frakes, 309 Neb. 85, 958 N.W.2d 673 (2021); Rafert,
supra note 27; Guardian Tax Partners, supra note 27; Connelly v. City
of Omaha, 278 Neb. 311, 769 N.W.2d 394 (2009); Cerny, supra note 18;
Malolepszy v. State, 270 Neb. 100, 699 N.W.2d 387 (2005).
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This principle was applied by the Court of Appeals in the
2004 case of Pioneer Chem. Co. v. City of North Platte. 38 In
that case, the appellant argued that Ҥ 25-1315 is not applicable
to special proceedings, such as condemnation actions, and
that appeals in such proceedings, irrespective of whether they
involve multiple claims or multiple parties, are governed only
by [§ 25-1902].” 39 The Court of Appeals rejected that argument
and expressly held that when an order resolves one of multiple
claims in a special proceeding, it is immediately appealable
only if the order satisfies the requirements of both § 25-1902
and § 25-1315. This court summarily affirmed.
More recently, this court has issued several opinions which
illustrate that when § 25-1315(1) is implicated, satisfying
§ 25-1902 alone is not sufficient to make an order final and
appealable. For instance, in State on behalf of Marcelo K. &
Rycki K. v. Ricky K., 40 the State filed an action to establish
child support, and the father filed a counterclaim and cross-
claim seeking to disestablish paternity as to one child and
seeking a custody order regarding the other child. The court
entered an order that disestablished paternity, and the State
filed an interlocutory appeal arguing that the order affected
a substantial right and was entered in a special proceeding.
We held that § 25-1315(1) was implicated, because the case
involved multiple parties and multiple claims for relief and the
order resolved fewer than all claims against all parties. We thus
concluded that absent § 25-1315(1) certification, we lacked
appellate jurisdiction.
As relevant to Mann’s argument, our opinion in State on
behalf of Marcelo K. & Rycki K. expressly rejected the State’s
suggestion that it was unnecessary to satisfy § 25-1315(1)
because the order of disestablishment was immediately appeal-
able as a final order under § 25-1902. We reasoned:
38
Pioneer Chem. Co. v. City of North Platte, 12 Neb. App. 720, 685 N.W.2d
505 (2004).
39
Id. at 724, 685 N.W.2d at 508.
40
State on behalf of Marcelo K. & Rycki K., supra note 27.
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[T]he State does not explain how this would avoid the
effect of § 25-1315. That section states, “In the absence
of such determination and direction, any order or other
form of decision, however designated, which adjudicates
fewer than all the claims or the rights and liabilities of
fewer than all the parties shall not terminate the action as
to any of the claims or parties . . . .” Even if disestablish-
ment was fully adjudicated by [the order being appealed],
it was asserted with other claims in the overall proceed-
ing. Because the [order being appealed] did not adjudicate
those other claims, it did not “terminate the action as to
any of the claims or parties,” including the disestablish-
ment claim. 41
We reached a similar conclusion in TDP Phase One v. The
Club at the Yard. 42 There, we found that § 25-1315(1) was
implicated when a forcible entry and detainer proceeding 43
was joined with actions for breach of contract and breach of
guaranty, as well as counterclaims alleging fraud and tortious
interference. When one of the parties attempted to appeal from
an order of partial summary judgment granting restitution of
the premises, we determined the order was not immediately
appealable absent proper certification under § 25-1315(1). And
because the order of partial summary judgment had not been
properly certified pursuant to § 25-1315(1), we found it unnec-
essary to analyze whether the order qualified as a final order
under § 25-1902.
We applied similar reasoning in Clason v. LOL Investments. 44
That case involved competing actions to quiet title, joined with
counterclaims for ejectment and unjust enrichment. When one
party appealed from an order of partial summary judgment that
41
Id. at 184, 912 N.W.2d at 750.
42
TDP Phase One, supra note 22.
43
See Cummins Mgmt. v. Gilroy, 266 Neb. 635, 667 N.W.2d 538 (2003)
(describing forcible entry and detainer as special proceeding).
44
Clason, supra note 9.
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resolved only the quiet title claims, we held that § 25-1315(1)
was implicated because the case involved multiple claims for
relief and the order of summary judgment adjudicated fewer
than all such claims. We rejected the appellant’s suggestion
that satisfying § 25-1902(1)(b) made the order immediately
appealable, reasoning:
[I]n this case, we need not consider [the appellant’s] argu-
ment that the [summary judgment] order is a final order
under § 25-1902. Even assuming that it is a final order
for the reason urged by [the appellant], § 25-1315 does
not permit appeal until either the remaining claims are
resolved or the court enters judgment under § 25-1315,
accompanied by an express determination that there is no
just reason for delay of an appeal. 45
Finally, in Tyrrell v. Frakes, 46 we held that satisfying
§ 25-1902 alone was insufficient to make the order final and
appealable in a case where § 25-1315(1) was implicated. In
Tyrrell, the appellant permissively joined an application for
a writ of habeas corpus, which we have described as a spe-
cial proceeding, 47 with a petition in error. 48 The district court
quashed the habeas claim, and no appeal was taken from that
order. Several months later, the court dismissed the petition
in error, and the appellant filed a notice of appeal challenging
the denial of habeas relief within 30 days of that dismissal.
The State argued the appeal was untimely because it was filed
45
Id. at 910, 957 N.W.2d at 881.
46
Tyrrell, supra note 37.
47
See, Flora v. Escudero, 247 Neb. 260, 266, 526 N.W.2d 643, 647 (1995);
(“[h]abeas corpus is a special proceeding, civil in character, which
provides a summary remedy open to persons illegally detained”); In re
Application of Tail, Tail v. Olson, 144 Neb. 820, 827, 14 N.W.2d 840,
843-44 (1944) (“we decide that the denial of relator’s application for a
writ of habeas corpus and the refusal to allow the writ by the district
court was a final order affecting a substantial right made in a special
proceeding”).
48
See Neb. Rev. Stat. § 25-1901 (Reissue 2016).
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more than 30 days after the order quashing the habeas claim.
We disagreed.
Our opinion in Tyrrell acknowledged that an order deny-
ing habeas relief generally qualifies as a final order entered
in a special proceeding. But we explained that because the
habeas proceeding and the petition in error had been joined in
a single case, § 25-1315(1) was also implicated. And because
no proper certification had been issued under § 25-1315(1),
we concluded the order disposing of the habeas claim did not
become final and appealable until disposition of the petition
in error.
[14] Our decisions in Tyrrell, Clason, TDP Phase One, and
State on behalf of Marcelo K. & Rycki K. are controlling and
demonstrate that in cases where § 25-1315(1) is implicated,
and no more specific statute governs the appeal, 49 an order
resolving fewer than all claims against all parties is not final
and appealable if it lacks proper § 25-1315 certification. This
is so even if the order otherwise satisfies one of the final order
categories in § 25-1902(1). Thus, Mann is simply incorrect
when he argues that § 25-1315(1) need not be satisfied so long
as the order he seeks to appeal satisfies the final order require-
ments under § 25-1902.
§ 25-1315 Can Be Implicated
in Special Proceedings
Finally, to the extent Mann can be understood to argue that
§ 25-1315(1) cannot be implicated in special proceedings,
49
See R & D Properties v. Altech Constr. Co., 279 Neb. 74, 78, 776 N.W.2d
493, 496 (2009) (explaining “[t]o the extent there is a conflict between
two statutes on the same subject, the specific statute controls over the
general statute,” and finding Neb. Rev. Stat. § 25-1315.03 (Reissue 2016),
rather than § 25-1315(1), controlled the appeal because it was more
specific). See, also, TDP Phase One, supra note 22, 307 Neb. at 802,
950 N.W.2d at 646-47 (acknowledging “[t]o the extent there is a conflict
between two statutes on the same subject, the specific statute controls
over the general,” but finding no applicable statute that conflicted with
§ 25-1315).
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we are unpersuaded. The above-cited cases demonstrate that
§ 25-1315(1) can be implicated in civil actions, in special pro-
ceedings, and in civil actions joined with special proceedings.
And while we acknowledge that § 25-1315(1), by its terms,
applies when “more than one claim for relief is presented in
an action,” 50 our § 25-1315 cases have not construed the term
“action” as a term of art 51 that equates only to civil actions and
excludes special proceedings.
We generally construe the term “action” to mean “civil
action.” 52 And we generally consider civil actions and special
proceedings to be mutually exclusive. 53 But when the context
supports it, we have also said “[t]he term ‘action’ is a com-
prehensive one, and is applicable to almost any proceeding in
a court of justice by which an individual pursues that remedy
which the law affords.” 54 Our cases construing § 25-1315 illus-
trate that the term “action” is used in the comprehensive sense,
to broadly reference civil cases that present multiple claims for
relief or involve multiple parties.
Asking whether the order at issue was entered in an action or
a special proceeding does little to inform the threshold inquiry
of whether § 25-1315 is implicated. As already explained,
the relevant inquiry for determining whether § 25-1315(1) is
50
§ 25-1315(1) (emphasis supplied).
51
State ex rel. Peterson v. Creative Comm. Promotions, 302 Neb. 606, 614,
924 N.W.2d 664, 670 (2019) (explaining legal term of art “is a word or
phrase having a specific, precise meaning in a given specialty apart from
its general meaning in ordinary contexts”).
52
In re Interest of R.G., 238 Neb. 405, 413, 470 N.W.2d 780, 787 (1991),
disapproved on other grounds, O’Connor v. Kaufman, 255 Neb. 120, 582
N.W.2d 350 (1998).
53
See Kremer v. Rural Community Ins. Co., 280 Neb. 591, 597, 788
N.W.2d 538, 546 (2010) (“regardless of a statutory remedy’s location
within Nebraska’s statutes, actions and special proceedings are mutually
exclusive”).
54
Champion v. Hall County, 309 Neb. 55, 76, 958 N.W.2d 396, 411 (2021)
(emphasis omitted).
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implicated turns on whether the case presents multiple claims
for relief or involves multiple parties, as well as whether the
“order or other form of decision, however designated . . . adju-
dicates fewer than all the claims or the rights and liabilities of
fewer than all the parties.” This inquiry is the same whether the
order at issue was entered in a civil action, a special proceed-
ing, or a case permissively joining the two.
We cannot ignore the reality that under Nebraska’s liberal
joinder statutes, 55 civil actions and special proceedings can
be permissively joined in the same civil lawsuit. Here, for
instance, the parties have permissively joined what is com-
monly characterized as a civil action 56 with what is commonly
characterized as a special proceeding. 57 As this case illustrates,
civil cases involving multiple claims for relief are not always
amenable to binary classification as either an action or a spe-
cial proceeding.
[15] We now expressly hold what our prior cases have
implied: Section 25-1315(1) can be implicated in civil actions,
in special proceedings, and in civil actions joined with special
proceedings. Although we remind litigants and judges that not
every order entered in a special proceeding will necessarily
implicate § 25-1315(1), 58 we reject Mann’s suggestion that
special proceedings are categorically exempted from the reach
of § 25-1315.
55
See §§ 25-701 and 25-705 (Reissue 2016).
56
See, e.g., Allied Mut. Ins. Co. v. City of Lincoln, 269 Neb. 631, 694
N.W.2d 832 (2005) (describing declaratory judgments as actions to which
§ 25-1315 would apply). But see Graham v. Beauchamp, 154 Neb. 889,
894, 50 N.W.2d 104, 107 (1951) (“[i]n an action for declaratory judgment
the matter of entering a declaratory judgment has been held to be one of
practice and procedure rather than one of jurisdiction. An action for such
a judgment or relief is a special proceeding . . .”).
57
See cases cited supra note 5.
58
See State on behalf of Marcelo K. & Rycki K., supra note 27, citing
Streck, Inc. v. Ryan Family, 297 Neb. 773, 901 N.W.2d 284 (2017); State
v. Harris, 267 Neb. 771, 677 N.W.2d 147 (2004); Guardian Tax Partners,
supra note 27.
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CONCLUSION
We need not determine whether the order of partial sum-
mary judgment is a final order under § 25-1902, because
even if it is, we conclude § 25-1315(1) is implicated because
the case involves multiple claims for relief and the summary
judgment order resolved fewer than all such claims. There has
been no proper certification under § 25-1315, and we therefore
lack appellate jurisdiction over this appeal, as did the Court
of Appeals. We vacate the Court of Appeals’ decision and
remand the cause with directions to dismiss the appeal for lack
of jurisdiction.
Vacated and remanded with directions. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487217/ | TERRY, Associate Judge:
In a one-count information appellant was charged with stalking, in violation of D.C.Code § 22-504(b) (1996). A jury found him guilty as charged. These consolidated appeals are taken from (1) appellant’s conviction of stalking (appeal No. 97-CM-1801), (2) the denial of a motion for a new trial (No. 97-CO-1799), and (3) the denial of a motion to reconsider appellant’s sentence (No. 98-CO-16). Appellant makes several arguments on appeal, including a claim that the prosecutor made an improper comment in her opening statement. We agree that the prosecutor’s comment was improper, but we are satisfied that it did not generate sufficient prejudice to require reversal. Appellant’s remaining arguments are without merit. Accordingly, we affirm both the conviction and the other orders under review.
I
Michelle Hall met appellant in August 1993, and soon the two of them began dating. In September, Ms. Hall testified, “he needed a place to stay and he asked if he could stay for a while.” Appellant stayed with Ms. Hall for what turned out to be ten months, from September 1993 until July 1994. Sometime around May 1994, however, appellant and Hall began having “a lot of conflicts,” and Hall asked appellant to move out. When he finally moved in July, he took most of his belongings, but “left a few things.”
One day in the latter part of August 1994, appellant came to Ms. Hall’s house. The two of them chatted for ten or fifteen minutes, and then appellant left. The next morning, however, he came back looking for his key. He asked Hall if she had seen it, and when she replied, ‘Well, I wasn’t looking for your key,” appellant slapped her in the face, saying, ‘You don’t talk to me like I’m a punk or a sucker.” When Ms. Hall screamed, her daughter came downstairs, and Hall asked her to call her grandmother (Hall’s mother), who lived nearby. Appellant left and yelled from the street, “Well, I’ll bet you one thing, you won’t be living at that address.” Ms. Hall was “upset and nervous” after this incident.
Throughout September appellant kept calling Ms. Hall, asking her why she did not want to see him and saying, “You must be messing with some other [man], I’m going to punish you.” Appellant would also come to Hall’s home, and when she *191would not open the door, he would yell similar things through the mail slot. At the end of September, after appellant had called “over twenty times,” Ms. Hall went to court and filed an application for a civil protection order (CPO). See D.C.Code § 16-1005 (1997).1 She testified that the next morning, when she left for work, she discovered that she had “two slashed tires.”2 On another occasion appellant called Ms. Hall at work and left a message that he wanted her to attend his father’s funeral. In addition, he still had his paychecks mailed to Ms. Hall’s address. She told him she would leave them in a file cabinet on the porch. When he came one day to pick them up, he began yelling at Hall again through the mail slot. After she refused to let him in, he sat in his car outside her house for fifteen minutes before driving away.
Toward the end of September 1994, Ms. Hall began staying at her mother’s house and would go to her own house only if someone was with her. She testified that she did not feel safe in her house because appellant would come there so often. “There would be times I would pull up, and he would come from nowhere and be behind me.” Ms. Hall described one incident when she and a female friend from her graduate program at a local university were working on a project at her house. The phone rang, and Hall asked her friend to answer it because “he was calling so often I didn’t want to answer the phone.” When she learned that appellant was calling, Hall would not speak to him. Five minutes later appellant came to the door, “broke open the storm door ... banged on the door, turned the knob.” Ms. Hall called the police and members of her family, but appellant had left by the time the police arrived.
Appellant came another time in October, pounded on Ms. Hall’s new security door,3 and then went to the window, yelling about the checks and complaining that he could not see her. In a loud voice, he said that he was going to punish her, then punched his fist through the window and “opened the window trying to come in.” Hall once again called the police, but again he left before they arrived.
In May 1995 appellant called Ms. Hall and said he wanted to “atone” for his behavior. Ms. Hall agreed to go to lunch with him, and over lunch “he said that he was trying to get his life together.” She said she “wasn’t interested in a relationship, could he handle a friendship?” He replied that “a friendship would be fine, and that he didn’t want anything else.” By the end of June, however, appellant was calling frequently and starting “to be possessive again,” asking where Ms. Hall had been and whom she had been with. On Ms. Hall’s birthday in July, he called and said he wanted to come and see her. When she told him she “had a few friends over,” he acted “real irritated” and said he would not come. However, when she returned from taking some of her friends home, he was waiting on the porch with a gift for her. Ms. Hall did not accept the gift, and appellant left. A few days later appellant came and took back a ring that he had given her the year before.
Appellant continued to call frequently and act possessive. He would come to Ms. Hall’s house and stand on the porch “just screaming” at her. On one such visit he asked Hall to go with him to pick up something for his car. After hesitating, she decided to go, thinking it “would be a good day to bring some closure to this.” So she wrote a letter stating that she did not want any further communication with him, and when he arrived, the two of them got into her car. As they drove along, she handed him the letter. After he read it, *192he punched the window of the car and accused her of “talking to him like he was a punk or a sucker.” Ms. Hall stopped the car and jumped out and was aided by a bystander.
Soon after this incident, Ms. Hall had her telephone number and her locks changed. Then, in January 1996, she received a letter from appellant. Without opening it, she marked it “Return to Sender” and sent it back. After that, appellant began calling her friends to get her new phone number.
In February 1996, about a week after Ms. Hall returned the letter, appellant appeared in the parking lot outside the school where she taught and yelled to her that he wanted to talk. Hall rushed into the school building, but appellant followed her. He began calling her a “slut” and asking why she did not want to see him on her birthday. She ran to the school office, where a co-worker, Vanessa Johnson, tried to talk to appellant while Hall called the police. Appellant was eventually escorted out of the building by a school security officer and left before the police arrived.
In July 1996 Ms. Hall was riding in her car with a friend, Howard Speight. Appellant saw them stopped at a light and began yelling at Hall that “he was going to mess me up.” When the light changed, Hall drove off quickly. Some time after that, in the latter part of 1996, Ms. Hall sought another civil protection order. Finally, in January 1997, appellant was arrested and charged with stalking.
The government presented the testimony of seven other witnesses who corroborated Ms. Hall’s testimony in many details. The defense called only one witness, an attorney for whom appellant worked as an investigator, who testified that appellant was on an assignment in the area of Ms. Hall’s school in February 1996.
The jury found appellant guilty of stalking. A few days after the trial ended, he filed a motion for new trial, which the court denied. Then, after appellant was sentenced,4 appellant filed a motion to reconsider his sentence, which was also denied.
II
On appeal appellant presents six arguments: (1) that the trial court erred in refusing to grant a mistrial after the prosecutor made improper comments during her opening statement; (2) that the court erred in excluding evidence that Ms. Hall had filed a previous complaint against appellant which was later dismissed; (3) that the court erred in admitting evidence of a previous civil protection order; (4) that the court erred in refusing to allow recross-examination of Vanessa Johnson; (5) that the court erred in admitting evidence of uncharged criminal conduct; and (6) that the court erred in failing to give a special unanimity instruction. Although the prosecutor’s comments to the jury should not have been made, they did not give rise to reversible error. The rest of appellant’s arguments are without merit.
A. The Prosecutor’s Comments
Appellant contends that the trial court erred in not granting a mistrial after the prosecutor made improper comments during her opening statement. What the prosecutor said was this:
Have any of you ever been followed? Have you looked back and felt that someone was watching you? Have any of you ever been called consistently and wanted to hang up because you never wanted to talk to that person? Have any of you had someone show up at church, at your place of business, in front of your home hollering at you, harassing you, and insisting on seeing you? ... What did Miss Hall do to deal *193with this? Miss Hall did probably what all of us would do if we ever were faced with such an awful situation.
Defense counsel moved for a mistrial at the end of the prosecutor’s opening statement, but the court denied the motion.
The “threshold issue” for this court, in deciding whether to reverse a case because of a statement by the prosecutor, “is whether the challenged remark was improper.” McGrier v. United States, 597 A.2d 36, 40 (D.C.1991). “Even if it was, a new trial is required only when the defendant suffered ‘substantial prejudice’ as a result.” Munn v. United States, 703 A.2d 1239, 1241 (D.C.1997) (citing Williams v. United States, 483 A.2d 292, 297 (D.C.1984)). In deciding whether there was “substantial prejudice,” this court will consider factors such as “the closeness of the case, the centrality of the issue affected by the error, and the steps taken to mitigate the effects of the error.” Gaither v. United States, 134 U.S.App.D.C. 154, 172, 413 F.2d 1061, 1079 (1969).
Our “threshold” inquiry need not detain us long. The prosecutor here was asking the jurors to put themselves in the victim’s shoes and playing “upon their own fears of being victimized.” Hart v. United States, 538 A.2d 1146, 1150 (D.C.1988). The government concedes in its brief on appeal that the remarks were “poorly chosen” and “inartfully phrased.” “This court has repeatedly held that it is improper for the prosecutor to employ inflammatory tactics and devices intended to appeal to the passions and fears of the jurors.” Powell v. United States, 485 A.2d 596, 599 (D.C.1984). That is what the prosecutor did here, and defense counsel appropriately objected to it.
We must also determine, however, whether “substantial prejudice” to the defendant arose as a result. Munn, 703 A.2d at 1241. The remarks were made in the government’s opening statement and were not repeated, a fact which lessens the effect of the impropriety. See Owens v. United States, 497 A.2d 1086, 1092 (D.C. 1985), cert. denied, 474 U.S. 1085, 106 S.Ct. 861, 88 L.Ed.2d 900 (1986) (citing Frazier v. Cupp, 394 U.S. 731, 735-736, 89 S.Ct. 1420, 22 L.Ed.2d 684 (1969)). Moreover, the evidence against appellant was strong. The government presented eight witnesses, seven of whom corroborated the complainant’s testimony in various respects, and the defense was weak. Thus it is reasonable to conclude that the prosecutor’s improper remarks at the beginning of her opening statement resulted in minimal prejudice to the defense. Finally, although the trial court did not specifically mention the comment to the jurors, it did instruct the jury that the opening statement was not to be considered as evidence.
Overall, because the challenged remark was made in the opening statement and because the government’s case was so strong, we have no basis on which to find “substantial prejudice.” We hold that although the prosecutor’s comments were improper and should not have been spoken, there was no reversible error in the court’s denial of the mistrial motion.
B. The Previous Complaint
On cross-examination of Ms. Hall, defense counsel sought to elicit that she had filed a criminal complaint against him in 1994 which was later dismissed for want of prosecution. When the government objected, defense counsel told the court at a bench conference that he was trying to show that Ms. Hall was “fabricating, making up all these charges against this man....” The court disallowed the line of questioning as irrelevant. Appellant now argues that this ruling was reversible error.
This court addressed a similar issue in Roundtree v. United States, 581 A.2d 315 (D.C.1990), in which we held that a defendant’s right of confrontation under the Sixth Amendment is limited to eliciting evidence that is relevant and probative. Id. at 320-321. Evidence concerning the withdrawal of a prior charge is probative *194only if it can be shown that the prior charge was false. Id. at 321. As we said in Roundtree:
Where an accused seeks to impeach the credibility of a witness by offering evidence that the witness has made a false claim under similar circumstances, the confrontation clause mandates that the trial court give defendant leave to cross-examine about the prior claim only where it is “shown convincingly” that the prior claim is false.
Id. (citing Sherer v. United States, 470 A.2d 732, 739 (D.C.1983)).
In the instant case, the trial court properly barred counsel from asking about the prior charge. Counsel offered no evidence that the prior charge was dismissed because it was false. As the trial court said, there could have been “a zillion other reasons” why the charge was dismissed. Because appellant did not “show convincingly,” or in fact at all, that the prior charge was false, the dismissal of that charge was irrelevant,5 and the court committed no error in keeping it from the jury’s knowledge.
C. The Prior Civil Protection Order
At the government’s request, the trial court took judicial notice that a civil protection order had been entered by another judge of the Superior Court in November 1994. Defense counsel objected on the ground that the order had been issued by consent of the parties. After some discussion about the manner in which such orders could be proven, the court said, “I am going to tell the jury that on November 8, 1994, a civil protection order was obtained.... It was agreed to by both parties.” Later, in its final instructions, the court told the jury:
In this case I took judicial notice of the existence of an Intra-Family proceeding filed in the District of Columbia Superior Court ... involving Michelle Hall as the petitioner and David Washington as the respondent. In that case the parties agreed and consented to entry of a civil protection order which was dated November 8, 1994, and remained in effect for twelve months thereafter. You may, if you choose to do so, regard the fact that this order was in effect during this time period as proven evidence, but you are not required to do so because you are the sole judges of the facts.
Appellant contends that the court erred in taking judicial notice of the order.
In the trial court, appellant argued that the civil protection order was inadmissible because it had been obtained by consent. On appeal, however, he appears to have abandoned that argument, for he now contends only that the order was erroneously brought to the jury’s knowledge as an admission of a party opponent. This is not supported by the record; there is no reference in the trial transcript to the order as an admission of any kind.
In any event, it has long been settled that a court may take judicial notice of its own records, which is precisely what the trial court did here. See, e.g., Smith v. Public Defender Service, 686 A.2d 210, 212 (D.C.1996); S.S. v. D.M., 597 A.2d 870, 880-881 (D.C.1991); Coleman v. Burnett, 155 U.S.App.D.C. 302, 313, 477 F.2d 1187, 1198 (1973); Fletcher v. Evening Star Newspaper Co., 77 U.S.App.D.C. 99, 133 F.2d 395 (1942); cert. denied, 319 U.S. 755, 63 S.Ct. 1163, 87 L.Ed. 1708 (1943). There can be no serious doubt that the order was relevant to the stalking charge, since it was entered during the period encompassed within the charge and was based on some of the same facts about which Ms. Hall had testified. Under Miller v. Avirom, 127 U.S.App.D.C. 367, 369-370, 384 F.2d 319, 321-322 (1967), we have ample reason to reject appellant’s present *195argument because it was not raised in the trial court. But even assuming that the issue was properly preserved for appellate review, it is entirely without merit.
D. The Denial of Recross-Examination
Appellant claims that the trial court erred in refusing to allow his counsel to recross-examine Vanessa Johnson, a government witness who testified about the encounter at the school. The governing legal principles are clear. “There is no right to recross-examine a witness, provided the scope of any redirect examination is limited to matters raised on cross-examination.” Green v. United States, 718 A.2d 1042, 1061 (D.C.1998) (citation omitted). In addition, “[wjhether to allow recross-examination is left to the trial court’s ‘broad discretion.’” Id. (citation omitted). Consequently, a decision either to allow or to prohibit recross-examination is reviewed only for abuse of discretion. Id. at 1061-1062.
On direct examination the prosecutor asked Ms. Johnson how she felt while the incident was going on. She replied, “I felt that I was ready to be involved in some sort of conflict between [appellant and Ms. Hall], and I was thinking of me then.” Later, on redirect, the prosecutor asked Ms. Johnson if she felt “threatened” by appellant, and she said, “Yes.” Defense counsel then sought permission to ask her on recross whether appellant had actually threatened her, but the court denied the request, saying, “I do not allow recross unless something startling has come up in redirect, and nothing startling or new has come out in redirect....” The court noted that defense counsel had had an opportunity to ask such a question earlier on cross-examination, but had not done so.
On this record we find no abuse of discretion. After the witness, on direct examination, expressed concern for her own safety, defense counsel could have asked her on cross-examination whether appellant had actually threatened her. But he failed to do so. Since he had no right to recross-examination at all, we see no abuse of discretion in the court’s refusal to allow this particular question after counsel had let his earlier opportunity slip by. See Hilton v. United States, 435 A.2d 383, 389 (D.C.1981); Singletary v. United States, 383 A.2d 1064, 1073 (D.C.1978).
E. Uncharged Criminal Conduct
Appellant argues that the trial court erred in admitting evidence of uncharged criminal conduct. He contends that four different remarks by witnesses (three by Ms. Hall, one by Ms. Johnson) were improperly heard by the jury and that the cumulative prejudicial effect of these remarks warrants a new trial. We are satisfied that neither the individual remarks nor all of them in combination warrant reversal.
On direct examination Ms. Hall was asked, “About how many times during September 1994 would you say you had this type of phone call from the defendant?” After giving her answer, Ms. Hall added unresponsively, “When I left the following morning for work, I had two slashed tires.” Defense counsel asked for permission to approach the bench,6 and at the bench the trial court instructed the prosecutor to keep control of the witness. Immediately after the brief bench conference, the trial court said to the jury, “Ladies and gentlemen, you are instructed to disregard any comments that were just made about the slashing of any tires. Disregard it. Thank you.” In a similar situation, this court has held that a curative instruction was sufficient to dispel any prejudice. See Goins v. United States, 617 A.2d 956 (D.C.1992). Because the comment was brief and was followed immediately by an instruction to disregard it, we find no reversible error.
*196Ms. Hall also testified that appellant “slapped me in my face” during a visit to her house. Appellant claims that this statement was improperly admitted as evidence of uncharged criminal conduct. See, e.g., Drew v. United States, 118 U.S.App.D.C. 11, 15-16, 331 F.2d 85, 89-90 (1964). Defense counsel, however, did not object to this statement at the time it was made, nor did he move to strike it from the record. He must therefore demonstrate that the trial judge committed plain error in failing to exclude the statement sua sponte. See Watts v. United States, 362 A.2d 706, 709 (D.C.1976) (en banc) (defining plain error). We conclude that he has not done so. On the contrary, given the strength of the government’s case and the weakness of the defense, and assuming for the sake of argument that Drew even applies here,7 we conclude that any possible harm flowing from this comment was “too trivial to worry about.” Scott v. United States, 619 A.2d 917, 929 (D.C.1993).
On direct examination Ms. Hall was asked, “And how did you feel when you heard from your friends that he was calling them to ask for your number; how did you feel about that?” Ms. Hall answered, “I was upset, because I thought at that point he had been incarcerated.” On this occasion as well, defense counsel did not make any objection, so appellant must now demonstrate plain error.
In Clark v. United States, 639 A.2d 76 (D.C.1993), this court held that a reference to the defendant’s previous incarceration, though “problematic,” id. at 79, did not warrant the granting of a new trial. Id. at 80. We said that “insofar as there was no evidence as to what crime may have resulted in appellant’s supposed incarceration, the risk of an improper inference of guilt by the jury was less than in the situation where ‘the crime charged and the prior arrest involve the same offense.’ ” Id. at 79. The reasoning of Clark applies here as well. In this case Ms. Hall merely mentioned in passing that she thought appellant had been incarcerated. Her comment contained no further information about appellant’s incarceration or the crime appellant supposedly had committed. Moreover, the government had a very strong case against appellant. Although the court gave no curative instruction,8 there was no further mention of appellant’s supposed incarceration. We cited several cases in Clark involving similar incidents in which it was revealed that the defendant had been incarcerated or had a prior criminal record, but in none of those cases was the conviction reversed. E.g., Hardy v. United States, 119 U.S.App.D.C. 364, 365, 343 F.2d 233, 234 (1964), cert. denied, 380 U.S. 984, 85 S.Ct. 1353, 14 L.Ed.2d 276 (1965) (witness said he recognized defendant because “we did time in the penitentiary together”). Again, given the strength of the government’s case, we find no plain error in the trial judge’s failure to intervene sua sponte.
Finally, on cross-examination Vanessa Johnson testified that appellant “didn’t come to school regular.” Defense counsel did not object to this statement, which he belatedly challenges on appeal. Since a failure to “come to school regular” is not a crime, there was no error, plain or otherwise.9
F. The Unanimity Instruction
Appellant argues that the trial court erred in failing to give a special unanimity instruction which differentiated between the “following” and “harassing” *197elements of D.C.Code § 22-504(b),10 and between “pre-reconciliation” events and “post-reconciliation” events. The court did instruct the jury that it “must unanimously agree either A, that the defendant intended to cause emotional distress to Michelle Hall, or B, that the defendant’s conduct placed Michelle Hall in reasonable fear of bodily injury.” Appellant argues that the jury should also have been told that it must be unanimous (1) in finding that he either followed or harassed Ms. Hall, since the offense can be committed either by following or by harassing, and (2) in basing its verdict on events occurring either before or after the brief reconciliation in May and June of 1995, on the theory that the evidence showed two discrete series of events. Defense counsel never requested any such instructions, however, and thus appellant cannot win reversal unless he demonstrates plain error. Parks v. United States, 627 A.2d 1, 8 (D.C.1993) (failure to request unanimity instruction results in “review [under] the extremely limited plain error standard” (citations omitted)); see, e.g., Watts, 362 A.2d at 709 (defining plain error). Under the plain error doctrine, reversal “is justified only in exceptional circumstances where ‘a miscarriage of justice would otherwise result.’ ” Harris v. United States, 602 A.2d 154, 159 (D.C.1992) (citation omitted). We find no plain error; indeed, we find no error at all.
In Scarborough v. United States, 522 A.2d 869 (D.C.1987) (en banc), this court held that a special unanimity instruction is required “whenever there is evidence tending to show legally separate incidents ... not just factually separate incidents.” Id. at 873 (emphasis in original). We went on to say:
In short, the unanimity issue under a single count of an information or indictment does not turn on whether separate criminal acts occurred at separate times (although in some cases it may); it turns, more fundamentally, on whether each act alleged under a single count was a separately cognizable incident — by reference to separate allegations and/or to separate defenses — whenever it occurred.
Id. Thus “[a] unanimity instruction is required where ‘a single count encompasses two or more factually or legally separate incidents.’ ” Parks, 627 A.2d at 8 (citing Gray v. United States, 544 A.2d 1255, 1257 (D.C.1988)). “The requirement for a special unanimity instruction arises when the court cannot deduce from the record whether the jury must have agreed upon one particular set of facts.” Simms v. United States, 634 A.2d 442, 445 (D.C.1993).
In Schad v. Arizona, 501 U.S. 624, 111 S.Ct. 2491, 115 L.Ed.2d 555 (1991), decided after Scarborough, the Supreme Court held that “there is no general requirement that the jury reach agreement on the preliminary factual issues which underlie the verdict.” Id. at 632, 111 S.Ct. 2491. The Court said: ‘We have never suggested that in returning general verdicts in such cases the jurors should be required to agree upon a single means of commission.” Id. at 631, 111 S.Ct. 2491. In addition, “[i]t is ... impossible to lay down any single analytical model for determining when two means are so disparate as to *198exemplify two inherently separate offenses.” Id. at 643, 111 S.Ct. 2491. Schad and Scarborough differ somewhat in their reasoning, and this court has never addressed the apparent inconsistencies between the two. There is no need to do so here, however, because we conclude that under either Schad or Scarborough appellant was not entitled to a special unanimity instruction.
1. “Following” or “Harassing”
The crime of stalking, as the statute makes plain, can be committed either by “following” or by “harassing” the victim. Appellant argues that because there was evidence that he followed Ms. Hall, the trial court should have given a special unanimity instruction on both theories of liability, ¿a, that the jury must be unanimous that he either followed or harassed Ms. Hall. There was no error, however, because the government agreed to present its case only on a “harassing” theory, and that is how it went to the jury.11 Thus, since the jury was never asked or instructed to find appellant guilty of stalking based on “following,” the court was not required under either Schad or Scarborough to give a special unanimity instruction.
2. Pre-Reconciliation and Postr-Reconciliation Conduct
Appellant also argues that the trial court should have given a unanimity instruction on the pre- and post-reconciliation events revealed by the evidence. Stalking, however, is defined as a series of incidents that are part of a course of conduct extending over a period of time. As the government says in its brief, “it is the continuing course of conduct which constitutes the offense, not the individual discrete actions making up the course of conduct.” We held in Gray that “when a single count is charged and the facts show a continuing course of conduct, rather than a succession of clearly detached incidents, a special unanimity instruction is unnecessary, absent some factor that differentiates the facts on legal grounds.” 544 A.2d at 1258. No such factor is present here.
Our opinion in Gray differentiates between the two situations that may require a special unanimity instruction. “Incidents have been found to be factually separate when separate criminal acts have occurred at different times and were separated by intervening events.... Incidents are legally separate when the appellant presents different defenses to separate sets of facts underlying the charge ... or when the court’s instructions are ambiguous but tend to shift the legal theory from a single incident to two separate incidents.... ” Id. at 1257 (citations omitted; emphasis in original). Neither definition fits this case. Appellant engaged in a consistent pattern of behavior which amounted to stalking under the statute. Although the events occurred at different times, the statute specifically requires that the behavior be “on more than one occasion” and must occur “repeatedly.” D.C.Code § 22-504(b). The charge set forth in the information encompassed a period of almost two and a half years, from August 1994 to January 1997. Thus we cannot say as a matter of law (as we must in order to find plain error) that the acts committed by appellant before the brief reconciliation were “separate criminal acts” from those committed after the reconciliation. Nor did he present separate defenses to these acts; rather, he offered only a limited defense concerning the encounter at the *199school, and no defense as to anything else. There was nothing in the judge’s instructions to the jury from which anyone could conclude that there were two separate legal theories. Nor was there any legally significant difference between the pre- and post-reconciliation acts. The fact that Ms. Hall chose to have lunch with appellant and agreed to be “friends” with him — a “friendship” which, all too predictably, lasted only a few weeks— does not negate the criminal nature of his previous acts, as appellant suggests.
We hold that appellant’s behavior was a continuing course of conduct from the middle of 1994 until his arrest in January 1997, that it constituted a single offense (not two separate offenses), and that he was therefore not entitled to a special unanimity instruction on the pre- and post-reconciliation facts. See, e.g., Brown v. Ohio, 432 U.S. 161, 169, 97 S.Ct. 2221, 53 L.Ed.2d 187 (1977); Glymph v. United States, 490 A.2d 1157, 1160-1161 (D.C.1985); Parker v. United States, 476 A.2d 173, 176 (D.C.1984).
Ill
The judgment of conviction and the denial of the motion for new trial are both affirmed. Since appellant has made no claim of error based on the denial of his motion to reconsider his sentence, that ruling is affirmed as well.
Affirmed.
. The CPO was eventually issued on Novem-her 8, 1994.
. The court promptly instructed the jury to disregard this remark.
. She had installed a security door to prevent appellant from shouting through the mail slot.
. The court sentenced appellant to one year in jail (with the last four months suspended), followed by two years of probation, with conditions that he stay away from Ms. Hall, complete a six-month domestic violence program, and pay restitution of $189.00.
. "There is no constitutional right to present irrelevant evidence.” Gibson v. United States, 536 A.2d 78, 82 (D.C.1987).
. Counsel, however, did not specifically object to the comment.
. But see Toliver v. United States, 468 A.2d 958, 960-961 (D.C.1983). See also Bell v. United States, 677 A.2d 1044, 1047-1048 (D.C.1996) (discussing differences between Drew and Toliver).
. In Clark there was no curative instruction because defense counsel rejected several offers by the trial court to give one. See 639 A.2d at 80.
.Appellant also contends that the cumulative prejudicial effect of these statements requires a new trial. 'This contention is totally without merit.
. Section 22-504(b) provides in part:
Any person who on more than one occasion engages in conduct with the intent to cause emotional distress to another person or places another person in reasonable fear of death or bodily injury by willfully, maliciously, and repeatedly following or harassing that person, or who, without a legal purpose, willfully, maliciously, and repeatedly follows or harasses another person, is guilty of the crime of stalking.... [Emphasis added.]
“Harassing” is defined as:
engaging in a course of conduct either in person, by telephone, or in writing, directed at a specific person, which seriously alarms, annoys, frightens, or torments the person, or engaging in a course of conduct either in person, by telephone, or in writing, which would cause a reasonable person to be seriously alarmed, annoyed, frightened, or tormented.
D.C.Code § 22-504(e).
. The court instructed the jury, in pertinent part, as follows:
The essential elements of stalking, each of which the government must prove beyond a reasonable doubt, are, one, that the defendant harassed Michelle Hall between on or about August 28, 1994, and on or about January 7, 1997. [Emphasis added.]
The court then defined "harassing” in the language of D.C.Code § 22-504(e), supra note 10. There was no comparable instruction on "following.” | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487219/ | WASHINGTON, Associate Judge:
Appellant Raynard Vaas (“Vaas”) was convicted of criminal contempt1 for violating the stay-away condition of his pre-trial release. On appeal, Vaas contends that the evidence was insufficient to support his conviction. Specifically, Vaas argues that the order was ambiguous because it failed to clearly define the area from which he was ordered to stay away, and thus, he could not have willingly violated the order. We do not have to decide whether the terms of the stay-away order rendered it facially invalid, however, because we conclude that the stay-away order as orally modified in this case failed to meet the specificity requirement set forth in D.C.Code § 23-1322(0 (2001). Consequently, we reverse Vaas’ conviction.
I.
On August 15, 2001, Vaas was charged with one count of attempted tampering with evidence.2 At an initial hearing in the case, the court allowed Vaas to be released on personal recognizance before trial. As a condition of his release, the court ordered Vaas to stay away from a three-block radius of the residence at which he was arrested, 1127 Montello Avenue, Northeast, Washington, D.C. When Vaas informed the court that he lived three blocks away from 1127 Montello Avenue, the court modified the order to a one-block radius. The court orally warned Vaas that if “you’re found within a one-block area of that location, you can get locked up for just being there” (emphasis added). The written order the court issued, however, stated that “You are to stay away from the following place(s) or area(s): 1127 Montel-lo Avenue N.W. WDC; 1 block Radius”3 (emphasis added). There was no map or other visual aid attached to the stay-away order.
On August 26, 2001, Metropolitan Police Officer James Ritter witnessed Vaas driving his vehicle southbound on Florida Avenue, Northeast, about 30 to 40 yards away from Florida Avenue’s intersection with the 1100 block of Montello Avenue.4 At the time that Officer Ritter spotted Vaas, he was conducting a traffic stop near the intersection on the 1200 block of Florida Avenue. According to a map admitted as evidence at trial, Officer Ritter indicated that 1127 Montello Avenue was located approximately in the middle of the 1100 block of Montello Avenue. A fair reading of the map also suggests that the location where Officer Ritter saw Vaas was around the corner and across the street5 from the *46southern end of the 1100 block of Montello Avenue.6 Officer Ritter, believing Vaas was in violation of his stay-away order, arrested Vaas, who was subsequently charged with criminal contempt.7
At trial, the court found Vaas not guilty of attempted tampering with evidence. Regarding the contempt charge, Vaas argued that the stay-away order was ambiguous because “one block radius” failed to put him on adequate notice of the prohibited geographical area. The court, however, stated that “a radius has a very specific definition. I mean, it is one block to the North, South, East and West. I mean, because a radius covers the circumference of the area. And, so, I mean, that is the kind of plain meaning of that term.”
The trial court thereafter found beyond a reasonable doubt that Vaas violated his stay away order because he came within a one-block radius of 1127 Montello Avenue on August 26. After convicting Vaas of contempt, the trial court sentenced him to incarceration for six months but suspended execution in favor of two years probation. Vaas appeals this conviction.
II.
A. Standard of Review
In reviewing whether there was sufficient evidence to support a conviction, we view the evidence in the “light most favorable to the prosecution to determine whether a reasonable factfinder could find guilt beyond a reasonable doubt.” Lewis v. United States, 767 A.2d 219, 222 (D.C.2001) (citing Kelly v. United States, 639 A.2d 86, 89-90 (D.C.1994)). We defer to the factfinder to determine credibility, weigh the evidence, and draw reasonable inferences. See Abdulshakur v. District of Columbia, 589 A.2d 1258, 1263 (D.C.1991). “Moreover, in reviewing bench trials, this court will not reverse unless an appellant has established that the trial court’s findings are plainly wrong or without evidence to support [them].” Mihas v. United States, 618 A.2d 197, 200 (D.C.1992) (internal citations and quotation marks omitted). Whether a defendant’s acts constitute the crime of contempt, however, is a legal issue which we review independently. See Brooks v. United States, 686 A.2d 214, 219 (D.C.1996).
“In order'to convict an individual for criminal contempt it is necessary to find beyond a reasonable doubt that the individual committed a volitional act that constitutes contempt.” In re Ryan, 823 A.2d 509, 511 (D.C.2003) (quoting Smith v.United States, 677 A.2d 1022, 1030 (D.C.1996)). The elements of criminal contempt are: 1) willful disobedience 2) of a court order 3) that causes an obstruction of the orderly administration of justice. Id. at 512 n. 3 (quoting Swisher v. United States, 572 A.2d 85, 89 (D.C.1990) (per curiam)).
D.C.Code § 23-1322(f) (2001) mandates that a release order shall “[i]nelude a written statement that sets forth all the conditions to which the release is subject, in a manner sufficiently clear and specific to serve as a guide for the person’s conduct.” We have held that a defendant cannot be convicted of criminal contempt where he or she is not put on notice of the specific conditions of the stay away order. See *47Smith, 677 A.2d at 1031 (holding that, where stay-away order stated that defendant could not contact her former friend, the order did not support a criminal contempt conviction based on the defendant contacting that friend’s attorney).
B. Discussion
Vaas argues that the stay away order “cannot be the basis for a criminal contempt conviction” because the order failed to specify sufficiently the “area of prohibited conduct.” He contends that the language of “one-block radius” is ambiguous because a “block” is not a unit of measurement that is uniform in all directions from the center of the circle (the center here being 1127 Montello Avenue). Furthermore, Vaas argues that the trial court failed to provide any guidance on how to measure the distance. Pointing out that the order could potentially have several meanings, Vaas asks in his principal brief whether a one-block radius would mean that he was to stay away from the end of the 1100 block of Montello Avenue in all directions, or whether the radius would extend beyond the end of the 1100 block.
The government argues that the common sense or plain meaning of the order “is anything but ambiguous.” In attempting to define the area from which Vaas was ordered to stay away, the government contends that “the common sense meaning and understanding of the area covered by a ‘one-block radius’ of ’1127 Montello Avenue’ would be the area from 1127 Montello Avenue to the corresponding address on all of the surrounding blocks.” Because the terms “radius” and “block” have ordinary and specific meanings, the government argued, the order in this case could only have one possible common sense meaning. Even if this court found the order to be ambiguous, the government contends that there was no evidence indicating that Vaas was confused in any way by the meaning of the order.8
Although the parties have debated whether the order is facially valid, we need not decide whether the term “one-block radius” is ambiguous because we are convinced that the court’s subsequent explanatory statement created the kind of ambiguity that caused the stay-away order to fail to meet the specificity requirement set forth in § 23-1322(f). In this case, the court’s written order stated that Vaas was to stay away from “1127 Montello Avenue N.E. WDC; 1 block radius” (emphasis added). At the same time the court issued its written order, however, the court orally warned Vaas to stay away from “a one block area” of 1127 Montello Avenue. Because a “one-block radius” and a “one-block area” are susceptible to very different meanings, the court’s written order and its oral pronouncement created an ambiguity regarding the exact area from which Vaas was barred. Thus, we cannot say that the order set forth “all the conditions to which the release [was] subject, in a manner sufficiently clear and specific to serve as a guide for the person’s conduct.” D.C.Code § 23 — 1322(f) (2001). Because we find that the order as explained by the court fails to meet the specificity standard of § 23 — 1322(f), the trial court could not find beyond a reasonable doubt that Vaas’ conduct in this case was willful.
Although this opinion does not address the specific issue Vaas raised in this case — whether a stay-away order prohibiting the defendant from entering a radius measured in blocks is facially inadequate *48to satisfy the specificity requirement set forth in § 23-1322(f) — the question of what constitutes a “one-block radius” generated a spirited discussion among the parties and the court at oral argument. For this reason, we strongly suggest that in future orders trial courts endeavor to set more defined parameters, using maps, if practicable, that can be attached to the stay-away orders to provide defendants with clear guidance about this important aspect of a release order. This is particularly important in cases such as this one where the defendant lives in the immediate neighborhood of the location from which he is barred.
For the foregoing reasons, we reverse Vaas’ conviction for criminal contempt based on a violation of his stay away order.
So ordered.
. In violation of D.C.Code § 23-1329 (2001).
. In violation of D.C.Code § 22-723 (2001).
. Although the August 15, 2001 order was not included in the official record on appeal, we rely on the order included in appellant’s brief, to which no objection was made by the government.
. We note for the record that Florida Avenue was the only major through street serving the impacted area.
. Because he was driving southbound on Florida Avenue, Vaas was across the street and, thus, farther away from 1127 Montello *46Avenue than if he had been driving northbound.
. The record is unclear on whéthér Vaas drove through the intersection of Florida and Montello Avenues.
. At trial, Officer Ritter testified that he believed Vaas was to stay away from a three-block radius of the Montello Avenue address. The court still found, however, that the point at which the officer saw Vaas was within a one-block radius of 1127 Montello Avenue.
. The government relies here on evidence that Vaas signed the order and orally affirmed his understanding of the order. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487190/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/18/2022 09:05 AM CST
- 827 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE INTEREST OF JORDON B.
Cite as 312 Neb. 827
In re Interest of Jordon B., a child
under 18 years of age.
State of Nebraska and Nebraska Department of
Health and Human Services, appellees, v. Allen B.
and Leah B., appellees, Christina Boydston,
guardian ad litem for Jordon B., appellee
and cross-appellant, Jason D. on behalf
of J.D. and L.D., intervenor-appellee,
and Andrew Todd and Alicia Todd,
appellants and cross-appellees.
___ N.W.2d ___
Filed November 4, 2022. No. S-22-019.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches a conclusion independently
of the juvenile court’s findings.
2. Judgments: Jurisdiction. A jurisdictional question that does not involve
a factual dispute is a question of law.
3. Interventions. Whether a party has the right to intervene is a question
of law.
4. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court resolves the questions independently of the conclusions
reached by the trial court.
5. Statutes: Appeal and Error. Statutory interpretation is a question of
law, which an appellate court resolves independently of the trial court.
6. Juvenile Courts: Jurisdiction: Appeal and Error. In a juvenile case,
as in any other appeal, before reaching the legal issues presented for
review, it is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it.
7. Standing: Jurisdiction. Standing relates to a court’s power, that is,
jurisdiction, to address issues presented and serves to identify those
disputes which are appropriately resolved through the judicial process.
- 828 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE INTEREST OF JORDON B.
Cite as 312 Neb. 827
8. Juvenile Courts: Standing: Appeal and Error. The right of appeal
in a juvenile case in Nebraska is purely statutory, and Neb. Rev. Stat.
§ 43-2,106.01 (Reissue 2016) controls who has the right to appeal from
a juvenile court’s placement order.
9. Juvenile Courts: Parent and Child. Foster parents who were never
awarded custody are not “custodians” or “guardians” for purposes of
Neb. Rev. Stat. § 43-2,106.01(2)(c) (Reissue 2016).
10. Parent and Child: Standing: Appeal and Error. Foster parents do not
have a legal or equitable right, title, or interest in the subject matter of
the controversy that gives them standing to appeal from an order chang-
ing a child’s placement.
11. Parent and Child: Statutes: Interventions. Although foster parents
have a statutory right to participate in review hearings, their ability to
participate is less than that of a party, and foster parents are not entitled
to intervene as a matter of right.
12. Juvenile Courts: Jurisdiction: Statutes: Parent and Child:
Interventions: Equity. A juvenile court, as a statutorily created court
of limited jurisdiction, has only the authority which the statutes confer
on it, and therefore, a juvenile court cannot allow foster parents to equi-
tably intervene independently of the statutes.
13. Juvenile Courts: Appeal and Error. The fact that a person has two
different relationships to a child does not confer that person with a
right to appeal when neither is a relationship listed in Neb. Rev. Stat.
§ 43-2,106.01(2) (Reissue 2016).
14. Jurisdiction: Interventions: Standing: Final Orders: Appeal and
Error. An appellate court exercises jurisdiction over an appeal from an
order denying intervention even if the appellant would not have standing
to appeal from the court’s final order or judgment on the merits.
15. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
16. Minors: Words and Phrases. “Sibling,” under the Foster Care Review
Act generally and under Neb. Rev. Stat. § 43-1311.02(9) (Cum. Supp.
2020) specifically, means a person with whom one shares a common
parent or parents.
17. Appeal and Error. An issue not presented to or decided by the trial
court is not appropriate for consideration on appeal.
Appeal from the County Court for Dodge County: Kenneth
J. Vampola, Judge. Affirmed.
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Linsey A. Camplin and Sam Baue, of McHenry, Haszard,
Roth, Hupp, Burkholder, Blomenberg & Camplin, P.C., L.L.O.,
for appellants.
Leslie E. Remus and Trevor J. Rogers, Senior Certified
Law Student, for appellee Nebraska Department of Health and
Human Services.
Brianna L. McLarty, Deputy Dodge County Attorney, for
appellee State of Nebraska.
Timothy E. Sopinski, of Sopinski Law Office, for appellee
Allen B.
Adam R. Tripp, of Tripp Law Office, for appellee Leah B.
Pamela Lynn Hopkins, of Hopkins Law Office, L.L.C., for
guardian ad litem.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
Andrew Todd and Alicia Todd appeal the order of the juve-
nile court for Dodge County which granted a change of place-
ment for Jordon B. They claim that they have certain rights as
foster parents, and they claim error in, inter alia, the juvenile
court’s determination that Andrew did not have standing to
intervene as an adult sibling of Jordon. In addition, Christina
Boydston, Jordon’s guardian ad litem, cross-appeals and claims
that the juvenile court erred when it found that Andrew was a
“sibling” of Jordon and when it failed to appoint counsel to
represent her or new counsel to represent Jordon after Andrew
challenged the credibility and veracity of her guardian ad
litem report.
We determine that as foster parents, the Todds do not have
standing to appeal the juvenile court’s placement order or the
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right to intervene as parties. We further determine that Andrew
is not a “sibling” to Jordon, and for that reason, the juvenile
court did not err when it denied Andrew’s petition to intervene.
We further determine that the record does not show the guard-
ian ad litem requested appointment of counsel for herself or
new counsel for Jordon and that therefore, the juvenile court
did not err when it failed to make such appointments. We
therefore affirm the juvenile court’s order.
STATEMENT OF FACTS
Jordon was born in September 2020, and his biological
parents were Leah B. and Allen B. The Nebraska Department
of Health and Human Services (DHHS) removed Jordon from
Leah and Allen’s home on September 25. The juvenile court
for Dodge County granted temporary custody of Jordon to
DHHS based on concerns that Leah and Allen were not able to
care for him and provide an accurate feeding schedule. Such
concerns were based in part on the fact that two older sons of
Leah and Allen had been removed from their custody for simi-
lar reasons. The court appointed Boydston as Jordon’s guardian
ad litem.
Jordon was initially placed with Jason D. and Lesley D.
Jason is Leah’s father, and Lesley is Leah’s stepmother by
virtue of her marriage to Jason. Jason and Lesley had adopted
Jordon’s two older brothers after Leah’s and Allen’s parental
rights to the two were terminated.
After Jason and Lesley advised DHHS that they could not
provide permanency or long-term care to Jordon, DHHS placed
Jordon with the Todds. Andrew is Lesley’s adult biological
son. Andrew is not biologically related to Leah, but he is her
stepbrother by virtue of his mother Lesley’s marriage to Leah’s
father, Jason. Andrew is also a sibling to Jordon’s two older
brothers by virtue of Lesley’s adoption of the two boys.
In an order filed December 9, 2020, the court adjudicated
Jordon to be a child within the meaning of Neb. Rev. Stat.
§ 43-247(3)(a) (Reissue 2016). The court later approved a case
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plan with a primary permanency plan of reunification, but the
court determined that custody should remain with DHHS and
that Jordon should remain in out-of-home placement.
On July 14, 2021, Leah filed a motion for change of
placement in which she requested that Jordon’s placement
be changed to the residence of Rita Pospishil, who is Allen’s
cousin. On the same day, Jason, as biological grandfather and
adoptive father, filed a complaint on behalf of Jordon’s two
older brothers requesting that they be allowed to intervene
in this case to seek a joint-sibling placement of Jordon with
them in Jason and Lesley’s home. The court allowed Jason to
intervene on behalf of the brothers, and it set a hearing on the
request for joint-sibling placement and on Leah’s motion to
change placement to Pospishil. The court ordered submission
of reports prior to the hearing, including, inter alia, a home
study with regard to Pospishil and a guardian ad litem report.
The hearing was set for September 16.
On September 9, 2021, the Todds filed a motion to intervene
in the case. They sought to intervene as Jordon’s foster par-
ents, and they alleged that Jordon had been placed with them
for most of his life and that it was in Jordon’s best interests
to continue placement with them. Andrew also alleged that he
was a relative of Jordon. He alleged that he was a stepuncle
to Jordon based on his stepsibling relationship with Leah and
that he was also a stepbrother to Jordon based on his mother
Lesley’s adoption of Jordon’s two older brothers. Andrew
alleged that he was a sibling of Jordon under the Foster Care
Review Act (the Act) and that as a sibling he had an interest
in the case.
After the hearing, the juvenile court filed an order on
October 27, 2021, in which it ruled on pending motions. The
court first addressed the Todds’ motion to intervene. The
court determined that the Todds did not have standing to
intervene on the basis that they were Jordon’s foster parents.
The court cited In re Interest of Enyce J. & Eternity M., 291
Neb. 965, 870 N.W.2d 413 (2015), for the proposition that
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although foster parents have a statutory right to participate
in review hearings, their ability to participate was less than
that of a party, and that foster parents do not have an interest
that entitles them to intervene in a juvenile case as a matter
of right.
The court then turned to Andrew’s request to intervene
on the basis that he was a sibling of Jordon. The court
defined the issue as being “whether Andrew . . . has stand-
ing to intervene as an adult stepbrother to Jordon pursuant to
Neb. Rev. Stat. [§] 43-1311.02.” The court cited Neb. Rev.
Stat. § 43-1311.02(1)(a) (Cum. Supp. 2020), which provides
as follows:
Reasonable efforts shall be made to place a child and
the child’s siblings in the same foster care placement or
adoptive placement, unless such placement is contrary
to the safety or well-being of any of the siblings. This
requirement applies even if the custody orders of the sib-
lings are made at separate times and even if the children
have no preexisting relationship.
The court cited In re Interest of Nizigiyimana R., 295
Neb. 324, 889 N.W.2d 362 (2016), in which we held that the
duty to make reasonable efforts to implement a joint-sibling
placement existed even if a court had terminated a parent’s
relationship with each child and even if the siblings had not
previously lived together and that the duty extended to joint-
sibling placements with unadjudicated siblings. The court
also referenced § 43-1311.02(9), which generally provides
that a sibling of a juvenile has a right to intervene for limited
purposes. The court noted that § 43-1311.02(1)(a) referred
specifically to situations in which the “children” have no pre
existing relationship. The court read this reference to mean
that § 43-1311.02 applied only to siblings who were children,
and it noted that the statute made no reference to adult sib-
lings. The court therefore concluded that “the limited right
to seek ‘joint-sibling placement, sibling visitation, or ongo-
ing interaction with their sibling’ in subsection (9) belongs
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to minor siblings only.” The court therefore denied Andrew’s
motion to intervene as a sibling of Jordon.
In its October 27, 2021, order, the court next addressed
Leah’s motion to change Jordon’s placement to Pospishil and
the older brothers’ request for placement with them in Jason
and Lesley’s home. The court noted that DHHS had complied
with § 43-1311.02(1)(a) when it initially placed Jordon in
Jason and Lesley’s home. The court, however, further noted
the testimony of a DHHS caseworker that Jordon’s placement
had been changed because Jason and Lesley were “incapable
or unwilling to provide care for Jordon” and that therefore, “it
was not in Jordon’s best interest to put him in a home . . . that
was unable to provide for his basic needs due to the reported
issues of the other children in the home.” The caseworker fur-
ther testified that Jason and Lesley had not subsequently asked
that DHHS place Jordon back in their home and that the case-
worker did not become aware they were interested in taking
placement until the motion in this case was filed.
The court found that the primary permanency plan in this
case was reunification of Jordon with Leah and Allen and that
Leah and Allen were making progress toward reunification.
The court noted that the caseworker had testified that it was
in Jordon’s best interests to be in a placement that was more
conducive to the plan of reunification and that the caseworker
opined that Pospishil’s relationship with Leah and Allen was
conducive to that goal although Jason and Lesley’s relation-
ship was less conducive and could negatively affect the goal
of reunification.
The court stated that another witness who had supervised
Leah and Allen’s visitations with Jordon agreed that they were
making good progress and that it was in Jordon’s best interests
to be in a placement with Pospishil, who would be conducive
to the goal of reunification. The court further noted that the
home study showed that Pospishil had a good relationship
with Leah and Allen and that placement with her was recom-
mended. Based on this evidence, the court found that it was
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in Jordon’s best interests to grant Leah’s motion for change
of placement to Pospishil, and it ordered DHHS to prepare a
transition plan to effectuate the change. The court overruled
motions to reconsider that were subsequently filed by the
Todds and by Jason on behalf of Jordon’s older brothers.
The Todds appeal the juvenile court’s order, and Boydston
cross-appeals.
ASSIGNMENTS OF ERROR
The Todds claim that the juvenile court erred when it deter-
mined that they did not have the right to intervene as foster
parents and that Andrew did not have the right to intervene
because he was an adult sibling and not a child sibling. They
also claim that the court erred when it (1) granted Leah’s
motion to change placement to Pospishil, (2) denied the older
brothers’ motion for placement with them, and (3) overruled
the motions to reconsider.
Boydston claims on cross-appeal that the juvenile court
erred when it found that Andrew was a “sibling” of Jordon
when Andrew and Jordon do not have a common parent.
Boydston also claims the court erred when it failed to appoint
counsel to represent her or to appoint new counsel to represent
Jordon after Andrew challenged the credibility and veracity of
her guardian ad litem report.
STANDARDS OF REVIEW
[1] An appellate court reviews juvenile cases de novo on the
record and reaches a conclusion independently of the juvenile
court’s findings. In re Interest of Enyce J. & Eternity M., 291
Neb. 965, 870 N.W.2d 413 (2015).
[2-4] A jurisdictional question that does not involve a factual
dispute is a question of law. Id. Whether a party has the right
to intervene is a question of law. Id. When reviewing questions
of law, an appellate court resolves the questions independently
of the conclusions reached by the trial court. Id.
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[5] Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court. In re
Guardianship of Jill G., ante p. 108, 977 N.W.2d 913 (2022).
ANALYSIS
Standing.
[6,7] In a juvenile case, as in any other appeal, before reach-
ing the legal issues presented for review, it is the duty of an
appellate court to determine whether it has jurisdiction over the
matter before it. In re Interest of Mekhi S. et al., 309 Neb. 529,
960 N.W.2d 732 (2021). Standing relates to a court’s power,
that is, jurisdiction, to address issues presented and serves
to identify those disputes which are appropriately resolved
through the judicial process. In re Interest of Meridian H., 281
Neb. 465, 798 N.W.2d 96 (2011).
In its brief of appellee, the State argues, firstly, that the
Todds do not have standing to appeal the juvenile court’s
placement order as foster parents and, secondly, that even if he
is a sibling to Jordon, Andrew also would not have standing
as a sibling to appeal the juvenile court’s placement order. No
objection is made to the standing of Boydston, the guardian ad
litem. In support of its position that the Todds lack standing,
the State cites Neb. Rev. Stat. § 43-2,106.01 (Reissue 2016),
which provides as follows:
(1) Any final order or judgment entered by a juvenile
court may be appealed to the Court of Appeals in the
same manner as an appeal from district court to the Court
of Appeals. The appellate court shall conduct its review
in an expedited manner and shall render the judgment and
write its opinion, if any, as speedily as possible.
(2) An appeal may be taken by:
(a) The juvenile;
(b) The guardian ad litem;
(c) The juvenile’s parent, custodian, or guardian. For
purposes of this subdivision, custodian or guardian shall
include, but not be limited to, [DHHS], an association, or
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an individual to whose care the juvenile has been awarded
pursuant to the Nebraska Juvenile Code; or
(d) The county attorney or petitioner . . . .
Under § 43-2,106.01(2)(b), the guardian ad litem may appeal
a final order or judgment entered by a juvenile court. Therefore,
Boydston has standing to appeal the juvenile court’s order, and
we may consider the issues she raises in her cross-appeal. In
contrast, we must proceed to consider whether, and to what
extent, the Todds have standing as foster parents and then con-
sider Andrew’s standing as a purported sibling of Jordon.
Foster Parents Do Not Have Standing to
Appeal Under § 43-2,106.01 and Do
Not Have a Right to Intervene
in Juvenile Proceedings.
[8-10] We have stated that in assessing standing, the right of
appeal in a juvenile case in Nebraska is purely statutory, and
that § 43-2,106.01 controls who has the right to appeal from
a juvenile court’s placement order. In re Interest of Joseph C.,
299 Neb. 848, 910 N.W.2d 773 (2018). As set forth above,
§ 43-2,106.01(2) does not include “foster parent” in the list
of persons who may take an appeal. We have held that foster
parents who were never awarded custody are not “custodians”
or “guardians” for purposes of § 43-2,106.01(2)(c). See In re
Interest of Jackson E., 293 Neb. 84, 875 N.W.2d 863 (2016).
Furthermore, in In re Interest of Enyce J. & Eternity M., 291
Neb. 965, 974, 870 N.W.2d 413, 420 (2015), we determined
that foster parents “do not have a legal or equitable right,
title, or interest in the subject matter of the controversy that
gives them standing to appeal from the order changing [a
child’s] placement.”
[11,12] In In re Interest of Enyce J. & Eternity M., supra, we
also stated that although foster parents did not have standing
to appeal the order changing placement, we nevertheless had
jurisdiction to consider the order dismissing the foster parents’
complaint to intervene. We determined that although foster
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parents have a statutory right to participate in review hearings,
their ability to participate was less than that of a party, and we
held that foster parents are not entitled to intervene as a mat-
ter of right. Id. We further determined that a juvenile court, as
a statutorily created court of limited jurisdiction, has only the
authority which the statutes confer on it and that therefore, a
juvenile court could not allow foster parents to equitably inter-
vene independently of the statutes. Id.
We conclude that under this authority, the Todds’ status as
foster parents did not authorize them either to intervene or to
appeal the placement order. In their brief, the Todds recognize
this precedent, but they argue that the present case is different
because they assert that Andrew is both a foster parent and a
sibling. We next consider the effect of Andrew’s alleged status
as a sibling with regard to intervention and appeal.
Although Siblings Do Not Have Standing to Appeal
Under § 43-2,106.01, They Have a Limited Right
to Intervene Under § 43-1311.02(9).
[13] As noted above, the State argues that even if Andrew
is a sibling of Jordon, a sibling does not have standing under
§ 43-2,106.01 to appeal a placement order. As set forth above,
§ 43-2,106.01(2) does not include “sibling” in the list of per-
sons who may take an appeal. We therefore agree with the State
that even if Andrew is a sibling of Jordon, Andrew qua sibling
is not among those listed in § 43-2,106.01 as persons who may
appeal a juvenile court order. We further reject the Todds’ argu-
ment that Andrew may appeal because he is both a foster par-
ent and a sibling. The fact that a person has two different rela-
tionships to a child does not confer that person with a right to
appeal when neither is a relationship listed in § 43-2,106.01(2).
We conclude that the Todds, and Andrew specifically, do not
have standing under § 43-2,106.01 to appeal the placement
order whether as foster parents, a sibling, or both.
[14] However, as stated above, in In re Interest of Enyce J.
& Eternity M., supra, we stated that although foster parents
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did not have standing to appeal the order changing placement,
we had jurisdiction to consider the order dismissing the foster
parents’ complaint to intervene. Similarly, in In re Interest of
Nizigiyimana R., 295 Neb. 324, 331, 889 N.W.2d 362, 369
(2016), in which adoptive parents of a biological sibling of
the juvenile sought to intervene, we stated that “[w]e exercise
jurisdiction over an appeal from an order denying intervention
even if the appellant would not have standing to appeal from
the court’s final order or judgment on the merits.” Under this
precedent, we understand that even though the Todds may not
appeal the portion of the juvenile court’s order changing place-
ment, Andrew may appeal the portion of the order in which the
juvenile court denied him leave to intervene as a sibling.
In considering Andrew’s arguments regarding the denial to
intervene, we refer to In re Interest of Nizigiyimana R., supra,
wherein we cited In re Interest of Enyce J. & Eternity M., 291
Neb. 965, 870 N.W.2d 413 (2015), for the proposition that a
juvenile court lacks authority to permit an equitable interven-
tion. We further rejected the argument that a sibling had a
statutory right to intervene pursuant to § 43-1311.02, which
imposed a duty on DHHS to make reasonable efforts with
regard to placement with the juvenile’s siblings. We deter-
mined that the statute, as it existed at the time, specifically
limited the right to enforce such duties to parties and that a
sibling was not considered a party. We concluded that “the only
persons who can enforce [DHHS’] duties under § 43-131[1].02
are a guardian ad litem, on behalf of an adjudicated child, or an
adjudicated child’s parent, guardian, or custodian.” 295 Neb. at
342, 889 N.W.2d at 375.
However, after our decision in In re Interest of Nizigiyimana
R., supra, the Legislature amended § 43-1311.02 to add sub-
section (9), which provides as follows: “A sibling of a child
under the jurisdiction of the court shall have the right to inter-
vene at any point in the proceedings for the limited purpose of
seeking joint-sibling placement, sibling visitation, or ongoing
interaction with their sibling.” Therefore, § 43-1311.02(9) now
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provides a sibling a limited right to intervene for the specific
listed purposes.
The juvenile court in this case recognized the limited right
of intervention under § 43-1311.02(9), but it determined that
Andrew did not have the right to intervene. The court appeared
to accept that Andrew was a sibling of Jordon. However, the
court determined that § 43-1311.02(9) did not apply to an adult
sibling, like Andrew, and that § 43-1311.02(9) only applied
to siblings who were children. In their brief of appellants, the
Todds claim that the juvenile court erred when it determined
that the right of intervention under § 43-1311.02(9) does not
apply to an adult sibling.
We note that in her cross-appeal, Boydston, the guardian
ad litem, does not dispute the decision to deny Andrew inter-
vention, but she claims that the juvenile court erred when it
concluded that Andrew was a “sibling” regardless of Andrew’s
age. If Boydston’s argument that Andrew is not a “sibling”
under § 43-1311.02(9) is correct, then we would not need
to consider whether the statute applies to adult siblings. We
therefore consider Boydston’s claim next, because, as will be
discussed below, our resolution of that question determines the
intervention issue.
Before moving on, we note that when the Legislature
amended § 43-1311.02 to give siblings a limited right to inter-
vene, it did not simultaneously amend § 43-2,106.01 to include
siblings among those who may appeal a juvenile court order.
The statutes therefore appear to create a situation in which a
sibling may intervene to advocate on the specified issues but
does not have a statutory right to appeal an adverse determina-
tion on those issues.
Andrew Is Not a “Sibling” of Jordon and Therefore
Did Not Have a Right to Intervene
Pursuant to § 43-1311.02(9).
As noted above, Boydston, as Jordon’s guardian ad litem,
may appeal the juvenile court’s order pursuant to § 43-2,106.01.
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Boydston claims on cross-appeal that the juvenile court erred
when it found that Andrew was a “sibling” of Jordon, but that
as an adult sibling, Andrew could not intervene. Boydston
argues that Andrew and Jordon are simply not siblings regard-
less of age because they do not have a common parent.
We agree.
Neb. Rev. Stat. § 43-1301(1) (Reissue 2016) of the Act
defines “[s]iblings” as “biological siblings and legal siblings,
including, but not limited to, half-siblings and stepsiblings.”
The Act also provides in Neb. Rev. Stat. § 43-1311.01(1)
(Reissue 2016) that “sibling means an individual who is con-
sidered by Nebraska law to be a sibling or who would have
been considered a sibling under Nebraska law but for a termi-
nation of parental rights or other disruption in parental rights
such as the death of a parent.” We note that although these
definitions set forth the types of siblings that are considered
“siblings” under the Act—including half siblings, stepsiblings,
and those who would be considered siblings but for a termina-
tion or disruption of parental rights—the definitions are circu-
lar in that they use the word “sibling” to define “sibling.” We
therefore resort to rules of construction to determine the mean-
ing of “sibling” under the Act.
[15,16] Statutory language is to be given its plain and ordi-
nary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which
are plain, direct, and unambiguous. In re Guardianship of
Jill G., ante p. 108, 977 N.W.2d 913 (2022). Black’s Law
Dictionary defines “sibling” as a “brother or sister,” Black’s
Law Dictionary 1660 (11th ed. 2019), and it defines “brother”
as a “male who has one parent or both parents in common with
another person,” id. at 241, and “sister” as a “female who has
one parent or both parents in common with another person,” id.
at 1667. The plain and ordinary meaning of “sibling” requires
a common parent or parents. Therefore, we conclude that
“sibling,” under the Act generally and under § 43-1311.02(9)
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specifically, means a person with whom one shares a common
parent or parents.
Andrew argues that he is a “stepbrother” to Jordon because
he and Jordon have siblings in common. Jordon is a sibling to
his two older brothers because they share common biological
parents, and although the biological parents’ rights to the older
brothers have been terminated, pursuant to § 43-1311.01(1),
they are still considered Jordon’s siblings under the Act.
Andrew’s mother Lesley adopted Jordon’s older brothers, and
therefore, Andrew shares a common parent with, and is a sib-
ling to, Jordon’s older brothers under § 43-1301(1) as a legal
sibling and a half sibling. But although Andrew and Jordon
share two brothers as common siblings, Andrew and Jordon
are not siblings. Having a common sibling does not in itself
make two people siblings to one another. Instead, the two must
have a common parent or parents, and Andrew and Jordon
have no common parent. Andrew is a stepbrother to Jordon’s
mother Leah, which makes him a stepuncle rather than a step-
brother to Jordon, and sharing two brothers in common does
not make Andrew and Jordon siblings in the absence of a com-
mon parent.
Because Andrew is not a “sibling” to Jordon under the
Act, we need not consider the juvenile court’s reasoning that
§ 43-1311.02(9) does not apply to Andrew because he is an
adult sibling rather than a child sibling, and we make no
comment on that reasoning. The limited right to intervene
under § 43-1311.02(9) does not apply to Andrew because he
is not a “sibling” to Jordon. Therefore, based on different
reasoning, we determine that the juvenile court did not err
when it denied Andrew leave to intervene as a sibling under
§ 43-1311.02(9).
Boydston Did Not Request Appointment of Counsel.
Boydston also claims on cross-appeal that the juvenile court
erred when it failed to appoint counsel to represent her after
Andrew challenged the credibility and veracity of her guardian
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ad litem report. We determine that because Boydston did not
request appointment of counsel, the juvenile court did not err
when it failed to do so.
Boydston’s argument that the juvenile court erred when it
did not appoint counsel to represent her or different counsel
to represent Jordon appears to focus on testimony by Andrew
at the hearing wherein he disagreed with certain aspects of
her guardian ad litem report. Boydston also notes a portion of
the Todds’ brief on appeal in which they assert that her guard-
ian ad litem report raises “misleading and baseless concerns”
regarding their care of Jordon and that such concerns were
“disproven by the evidence.” See brief for appellants at 16.
[17] However, it does not appear that Boydston asked the
juvenile court to appoint counsel. Boydston does not assert in
her brief that she made such request, and the record does not
appear to include such a request. An issue not presented to or
decided by the trial court is not appropriate for consideration
on appeal. In re Trust of Shire, 299 Neb. 25, 907 N.W.2d 263
(2018). Because the juvenile court was neither presented with
nor ruled upon a request for appointment of counsel, whether
such appointment was warranted is not appropriate for consid-
eration on appeal. Therefore, we do not consider this assign-
ment of error raised on cross-appeal.
CONCLUSION
We conclude that as foster parents, the Todds did not have
the right to intervene as parties and did not have the right
to appeal the juvenile court’s placement order. As urged by
Boydston in her cross-appeal, we also conclude that Andrew is
not a “sibling” to Jordon under the Act and that therefore, he
did not have a right to intervene pursuant to § 43-1311.02(9).
We therefore affirm the juvenile court’s order in which it denied
intervention by the Todds as foster parents or by Andrew as a
sibling. No party with a right to appeal has challenged the
juvenile court’s change of placement, and we therefore also
affirm the juvenile court’s placement order.
Affirmed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487189/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/18/2022 09:05 AM CST
- 792 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
REO ENTERS. V. VILLAGE OF DORCHESTER
Cite as 312 Neb. 792
REO Enterprises, LLC, a Nebraska limited
liability company, appellant, v. Village
of Dorchester, a Nebraska political
subdivision, appellee.
___ N.W.2d ___
Filed November 4, 2022. No. S-21-752.
1. Summary Judgment: Appeal and Error. An appellate court will
affirm a lower court’s grant of summary judgment if the pleadings
and admitted evidence show that there is no genuine issue as to any
material facts or as to the ultimate inferences that may be drawn from
the facts and that the moving party is entitled to judgment as a matter
of law.
2. Constitutional Law: Ordinances. The constitutionality of an ordinance
presents a question of law.
3. Judgments: Appeal and Error. An appellate court independently
reviews questions of law decided by a lower court.
4. Administrative Law: Statutes: Appeal and Error. The meaning
and interpretation of statutes and regulations are questions of law for
which an appellate court has an obligation to reach an independent
conclusion irrespective of the decision made by the court below.
5. Appeal and Error. Plain error is error plainly evident from the record
and of such a nature that to leave it uncorrected would result in damage
to the integrity, reputation, or fairness of the judicial process.
6. Special Legislation. A legislative act constitutes special legislation if
(1) it creates an arbitrary and unreasonable method of classification or
(2) it creates a permanently closed class.
7. Special Legislation: Public Policy. To be valid, a legislative clas-
sification must be based upon some reason of public policy, some
substantial difference in circumstances that would naturally suggest
the justice or expediency of diverse legislation regarding the objects to
be classified.
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312 Nebraska Reports
REO ENTERS. V. VILLAGE OF DORCHESTER
Cite as 312 Neb. 792
8. Special Legislation. Legislative classifications must be real and not
illusive; they cannot be based on distinctions without a substantial
difference.
9. ____. A legislative body’s distinctive treatment of a class is proper if
the class has some reasonable distinction from other subjects of a like
general character. And that distinction must bear some reasonable rela-
tion to the legitimate objectives and purposes of the legislative act.
Appeal from the District Court for Saline County: Vicky L.
Johnson, Judge. Affirmed.
Gregory C. Damman, of Blevens & Damman, for appellant.
Kelly R. Hoffschneider and Timothy J. Kubert, of
Hoffschneider Law, P.C., L.L.O., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Per Curiam.
The Village of Dorchester, Nebraska, enacted an ordinance
providing that renters of property could receive utility services
from the village only if their landlord guaranteed that the land-
lord would pay any unpaid utility charges. REO Enterprises,
LLC (REO), an owner of rental property within the village,
filed an action seeking a declaration that the ordinance was
unenforceable for various reasons. The district court initially
granted the relief REO sought, declaring that the ordinance
violated the Equal Protection Clauses of the U.S. and Nebraska
Constitutions. In an appeal filed by the village, however, we
reversed the district court’s judgment on that question and
remanded the cause for the district court to consider REO’s
other claims. See REO Enters. v. Village of Dorchester, 306
Neb. 683, 947 N.W.2d 480 (2020) (REO I). On remand, the
district court found that the village was entitled to summary
judgment on each of REO’s other claims. The case now returns
to us, this time at the behest of REO. We find no error on the
part of the district court and therefore affirm.
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312 Nebraska Reports
REO ENTERS. V. VILLAGE OF DORCHESTER
Cite as 312 Neb. 792
BACKGROUND
The Ordinance.
The village enacted the ordinance at issue in this appeal in
2017. The ordinance addresses the village’s provision of utility
services, including water, sewer, and electricity. The ordinance
requires that all residents of the village “subscribe to [the]
[v]illage utility services” and provides terms for billing, collec-
tion of bills, and discontinuance of service.
The ordinance also sets forth the process by which persons
may apply to receive utility services. Under the ordinance,
an application for utility services must be submitted to the
village clerk, who is to require payment of “a service deposit
and tap fees for water and sewer service.” Of particular rel-
evance to this appeal, the ordinance provides the following
with respect to applications for utility services filed by rent-
ers of property: “Before a tenant’s utility application will be
accepted, the landlord shall be required to sign an owner’s
consent form and agree to pay all unpaid utility charges for
his or her property.”
REO’s Complaint.
Several months after the ordinance was enacted, REO filed
a lawsuit against the village in which it asked the district
court to declare the ordinance unenforceable. In its complaint,
REO alleged that when one of its tenants, Ange Lara, applied
to receive utility services and paid the requested deposit, the
village clerk told her that she would not be provided with
such services until REO signed a guarantee as required by the
ordinance. According to the complaint, when REO informed
the village that it would not sign the guarantee, the village pro-
vided utility services to the property, but through an account
held by a member of REO rather than through an account
in Lara’s name. Although REO’s complaint named Lara as a
third-party defendant, nothing in our record indicates that Lara
has participated in the proceedings as a party.
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REO ENTERS. V. VILLAGE OF DORCHESTER
Cite as 312 Neb. 792
REO’s complaint alleged that the ordinance was unconsti-
tutional and in violation of state and federal statutes. REO
alleged that the ordinance violated the Equal Protection Clauses
of the U.S and Nebraska Constitutions, as well as article III,
§ 18, of the Nebraska Constitution. It also alleged that the
ordinance violated the federal Equal Credit Opportunity Act,
see 15 U.S.C. § 1691 et seq. (2018), and Nebraska’s Uniform
Residential Landlord and Tenant Act, see Neb. Rev. Stat.
§§ 76-1401 to 76-1449 (Reissue 2018 & Supp. 2021). REO
asked the district court to declare that the ordinance was void
and unenforceable on each of these grounds.
Summary Judgment Evidence.
REO and the village eventually filed cross-motions for sum-
mary judgment. At the summary judgment hearing, the district
court received an affidavit from the village clerk, Gloria Riley.
In her affidavit, Riley asserted that she was responsible for
managing utility accounts for the village. Riley stated that a
previous renter of the property REO rented to Lara failed to
pay a utility bill of over $500 and that the residency of that
former tenant was unknown. She also stated that the village
“has spent substantial resources in trying to locate former
residential tenant utilities customers that have left town with
unpaid utility account obligations” and that the village had
previously used collection agencies to assist in pursuing a
recovery for these unpaid bills, but that such agencies would
charge 50 percent of the amount collected. According to Riley,
the ordinance was adopted to “further the goal of collection
by reducing the possibility that [the village] will be faced
with the administrative expenses associated with repeatedly
resorting to cumbersome and expensive foreclosure or collec-
tion proceedings.”
The district court also received an affidavit of Lara. Lara’s
affidavit was consistent with the allegations in REO’s com-
plaint regarding the village’s response to Lara’s application
for utility services.
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REO ENTERS. V. VILLAGE OF DORCHESTER
Cite as 312 Neb. 792
Initial District Court Order
and First Appeal.
After the hearing on the motions for summary judgment,
the district court entered an order granting summary judgment
in favor of REO. In its order, the district court found that the
ordinance violated the Equal Protection Clauses of the U.S.
and Nebraska Constitutions. It reasoned that the ordinance
treated residential owners of property and residential tenants
differently and that there was no rational relationship between
the difference in treatment and the village’s interest in collect-
ing unpaid utility bills. The district court did not address the
other grounds REO offered in support of its request that the
ordinance be declared invalid.
The village appealed the district court’s decision, and we
reversed. We held that although the ordinance classified resi-
dential tenants and residential owners separately, the classifica-
tion was subject to and satisfied rational basis scrutiny and thus
did not violate the Equal Protection Clauses of the U.S. and
Nebraska Constitutions. We found that ensuring the collection
of utility bills was a plausible policy reason for the requirement
that renters obtain a landlord guarantee and that the differential
treatment of renters and owners was sufficiently related to the
goal of ensuring payment of utility bills so as not to render
the treatment arbitrary or irrational.
Proceedings on Remand.
After receiving and spreading our mandate in REO I, the
district court entered an order addressing REO’s other claims.
It found that the village was entitled to summary judgment
on each of those claims and thus granted the village’s motion
for summary judgment, overruled REO’s motion for summary
judgment, and dismissed the case.
REO timely appealed. We moved the case to our docket
on our own motion pursuant to Neb. Rev. Stat. § 24-1106(3)
(Cum. Supp. 2020).
- 797 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
REO ENTERS. V. VILLAGE OF DORCHESTER
Cite as 312 Neb. 792
ASSIGNMENTS OF ERROR
REO assigns that the district court erred by finding that
the ordinance (1) did not violate article III, § 18, of the
Nebraska Constitution, (2) did not violate the federal Equal
Credit Opportunity Act, and (3) was not void as against the
public policy of Nebraska. REO also assigns that the district
court committed plain error by finding that the village had
statutory authority to enact the ordinance.
STANDARD OF REVIEW
[1] An appellate court will affirm a lower court’s grant of
summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter of
law. D-CO, Inc. v. City of La Vista, 285 Neb. 676, 829 N.W.2d
105 (2013).
[2,3] The constitutionality of an ordinance presents a ques-
tion of law. Dowd Grain Co. v. County of Sarpy, 291 Neb.
620, 867 N.W.2d 599 (2015). An appellate court independently
reviews questions of law decided by a lower court. Id.
[4] The meaning and interpretation of statutes and regula-
tions are questions of law for which an appellate court has
an obligation to reach an independent conclusion irrespec-
tive of the decision made by the court below. In re App. No.
P-12.32 of Black Hills Neb. Gas, 311 Neb. 813, 976 N.W.2d
152 (2022).
[5] Plain error is error plainly evident from the record and
of such a nature that to leave it uncorrected would result in
damage to the integrity, reputation, or fairness of the judicial
process. North Star Mut. Ins. Co. v. Miller, 311 Neb. 941, 977
N.W.2d 195 (2022).
ANALYSIS
Special Legislation.
REO first claims that the district court should have declared
the ordinance unenforceable on the grounds that it violates
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312 Nebraska Reports
REO ENTERS. V. VILLAGE OF DORCHESTER
Cite as 312 Neb. 792
article III, § 18, of the Nebraska Constitution. The text of
article III, § 18, prohibits “[t]he Legislature” from “pass[ing]
local or special laws” in a set of enumerated circumstances.
The section concludes, “In all other cases where a general law
can be made applicable, no special law shall be enacted.” Id.
We have described article III, § 18, as generally prohibiting
“special legislation.” Big John’s Billiards v. State, 288 Neb.
938, 944, 852 N.W.2d 727, 734 (2014). We have said that the
special legislation prohibition applies to municipal ordinances.
See, e.g., D-CO, Inc., supra.
[6] So what exactly is it that article III, § 18, prohibits? Our
precedent holds that a legislative act constitutes special legis-
lation if (1) it creates an arbitrary and unreasonable method
of classification or (2) it creates a permanently closed class.
D-CO, Inc., supra. REO’s sole argument is that the ordinance
creates an arbitrary and unreasonable classification, so we next
turn our attention to the tests we have developed to identify
such classifications.
[7-9] In order to withstand a special legislation challenge,
i.e., to be valid, a legislative classification must be based
upon some reason of public policy, some substantial difference
in circumstances that would naturally suggest the justice or
expediency of diverse legislation regarding the objects to be
classified. Id. Legislative classifications must be real and not
illusive; they cannot be based on distinctions without a sub-
stantial difference. Id. A legislative body’s distinctive treatment
of a class is proper if the class has some reasonable distinction
from other subjects of a like general character. Id. And that
distinction must bear some reasonable relation to the legitimate
objectives and purposes of the legislative act. Id.
REO argues that by requiring only renters’ applications for
utility services to be supported by the guarantee of a third
party, the ordinance treats renters differently than it treats
owners. And it argues that there is no substantial difference in
circumstances between renters applying for utility services and
owners doing the same that justifies the differential treatment.
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312 Nebraska Reports
REO ENTERS. V. VILLAGE OF DORCHESTER
Cite as 312 Neb. 792
REO observes that some renters may be very creditworthy
while some owners may have very poor credit, and thus argues
that requiring only renters’ applications to be supported by a
guarantee is arbitrary.
If the village was attempting to defend the ordinance based
on a claim about the relative creditworthiness of renters and
owners of property, REO’s argument might have some force.
But, in fact, the village does not claim that the ordinance
is justified based solely on a difference in creditworthiness
between those two groups. Instead, the village’s argument
and Riley’s affidavit focus on the time and expense associ-
ated with collecting unpaid utility bills from renters. As noted
above, Riley’s affidavit stated that the village had spent sub-
stantial resources trying to locate former renters of property
with unpaid utility bills and had resorted to using collection
agencies that would take half of any amount collected. The
ordinance’s requirement of a landlord guarantee, according to
Riley, was intended to minimize the time and expense associ-
ated with those efforts.
We agree with the village that there is a substantial difference
in circumstances between renters and owners as to the time and
expense that are likely necessary to collect unpaid utility bills.
On this point, we find our opinion in REO I instructive. In the
course of our equal protection analysis in that case, we found
compelling the village’s assertion that “administrative and col-
lection costs associated with unpaid utility bills are more likely
to increase when seeking payment for services provided to
tenants versus residential owners.” REO I, 306 Neb. 683, 693,
947 N.W.2d 480, 488 (2020). We observed that tenants are
connected to the property through only a lease agreement and
that their connection to the property thus ceases when they
are no longer acting under the agreement, while owners are
more “tied” to the serviced property and thus provide a “static
source” that can be more easily contacted and from which
collection can be more easily pursued. Id. at 693, 694, 947
N.W.2d at 488. We also noted that a landlord guarantee could
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REO ENTERS. V. VILLAGE OF DORCHESTER
Cite as 312 Neb. 792
help the village minimize collection costs, because the guar-
antee provides another party to account for amounts due, but
concluded that “a third-party guarantee does not equally apply
to residential owners who do not have a landlord third-party
relationship and are already tied to the serviced propert y.” Id.
at 694, 947 N.W.2d at 488.
Although the foregoing analysis was conducted in the con-
text of an equal protection challenge in REO I, we find it also
supports the conclusion that there is a substantial difference
in circumstances between renters and owners that justifies the
ordinance’s differential treatment of the two groups. We have
previously acknowledged that special legislation analysis is
similar to an equal protection analysis and that, in some cases,
both issues can be decided on the same facts. See Hug v. City
of Omaha, 275 Neb. 820, 749 N.W.2d 884 (2008). As a result,
language normally applied to an equal protection analysis is
sometimes used to help explain the reasoning employed under
a special legislation analysis. Id. That is the case here.
We are not dissuaded from our conclusion that the ordinance
did not violate article III, § 18, by an alternative argument
raised by REO challenging the adequacy of Riley’s affidavit.
In support of this argument, REO compares Riley’s affidavit to
a commissioned study a municipality offered in defending an
ordinance regulating rental properties against a special legisla-
tion challenge in D-CO, Inc. v. City of La Vista, 285 Neb. 676,
829 N.W.2d 105 (2013). REO also contends that Riley’s affi-
davit failed to compare the resources the village had expended
pursuing unpaid utility bills of renters to unpaid utility bills
of property owners and failed to consider the effectiveness of
other means the village could have used to recover renters’
unpaid utility bills, such as requiring deposits or pursuing liens
imposed on the property.
We disagree with REO’s contention that Riley’s affidavit
was inadequate. Although the municipality in D-CO, Inc.,
supra, relied on a commissioned study, our opinion in that
case did not require that type of evidence in every special
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REO ENTERS. V. VILLAGE OF DORCHESTER
Cite as 312 Neb. 792
legislation challenge. Moreover, in that case, we relied on
more than just the commissioned study to determine that there
were substantial differences in circumstances between rental
properties and owner-occupied properties that justified the
municipality’s rental property regulations. The study did not
specifically show that rental properties within the municipal-
ity were dilapidated, but we relied on evidence of complaints
the municipality received about the condition of some rental
properties and of code violations it had found in some rental
properties. This anecdotal evidence is not unlike the evidence
set forth in Riley’s affidavit.
We also disagree with REO that the village was required
to offer evidence comparing the resources it had expended
attempting to collect unpaid utility bills from renters as opposed
to owners or show that it had considered the effectiveness of
other potential means of pursuing renters’ unpaid utility bills.
REO’s argument that this information was required overlooks
aspects of our special legislation doctrine. Even assuming the
village had also invested significant time and money in pursu-
ing unpaid utility bills associated with owner-occupied proper-
ties, our special legislation jurisprudence would not preclude it
from attempting to minimize the resources it must expend to
pursue renters’ unpaid utility bills. As we said in D-CO, Inc.,
in response to an argument that there were also maintenance
problems associated with owner-occupied properties in the
relevant municipality, government entities are “not required to
solve every problem at once.” 285 Neb. at 685, 829 N.W.2d
at 112.
In addition, even if the village may have had other means
at its disposal to pursue renters’ unpaid utility bills, it does
not follow that the ordinance is prohibited special legisla-
tion. As we have explained, the special legislation inquiry
is focused on whether the distinctive treatment of classes is
based on a substantial difference in circumstances between
the classes that justifies the distinctive treatment. Because
we find that there was such a substantial difference here, we
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REO ENTERS. V. VILLAGE OF DORCHESTER
Cite as 312 Neb. 792
conclude that REO’s special legislation challenge to the ordi-
nance fails.
Equal Credit Opportunity Act.
We next consider REO’s contention that the ordinance is
unenforceable because it violates the federal Equal Credit
Opportunity Act (ECOA). The ECOA prohibits creditors from
discriminating against applicants for credit on various bases.
See 15 U.S.C. § 1691(a). REO’s argument that the ordinance
violates the ECOA is based on a regulation promulgated to
enforce that statute. The regulation REO relies upon provides
that creditors may not generally require “the signature of an
applicant’s spouse or other person” on a credit instrument “if
the applicant qualifies under the creditor’s standards of credit-
worthiness for the amount and terms of the credit requested.”
12 C.F.R. § 1002.7(d)(1) (2021). REO contends that when a
renter applies to receive utility services from the village, he or
she is applying for credit. And because the ordinance requires
that the renter’s application be supported by the guarantee of
his or her landlord without any consideration of the renter’s
creditworthiness, REO argues that the ordinance violates the
ECOA. As we will explain, however, it is not necessary for
us to determine whether the ordinance is inconsistent with
the ECOA, because REO was not entitled to seek relief under
that act.
REO claims that a provision of the ECOA, 15 U.S.C.
§ 1691e(c), authorized it to ask the district court to declare the
ordinance invalid. Section 1691e(c) of the ECOA provides that
“[u]pon application by an aggrieved applicant, the appropriate
United States district court or any other court of competent
jurisdiction may grant such equitable and declaratory relief as
is necessary to enforce the requirements imposed under this
subchapter.” REO focuses on the language authorizing courts
of competent jurisdiction to grant equitable and declaratory
relief, but it glosses over the fact that § 1691e(c) authorizes
only an “aggrieved applicant” to seek such relief.
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REO ENTERS. V. VILLAGE OF DORCHESTER
Cite as 312 Neb. 792
The ECOA defines an “applicant” as “any person who
applies to a creditor directly for an extension, renewal, or con-
tinuation of credit, or applies to a creditor indirectly by use of
an existing credit plan for an amount exceeding a previously
established credit limit.” 15 U.S.C. § 1691a(b). For present
purposes, we will assume for the sake of argument that when
a person applies to the village to receive utility services, he
or she is requesting an extension of credit for purposes of the
ECOA. Having made this assumption, we would have no dif-
ficulty in finding that a renter seeking utility services is an
“applicant” under the ECOA. But, even with that assumption,
it is not so clear that REO is an “applicant” for purposes of
the statute.
REO asserts that the ordinance violates the ECOA by
requiring REO to serve as a guarantor. At least two federal
courts of appeal have expressly held that, notwithstanding a
regulation of the Federal Reserve Bank providing that “the
term [applicant] includes guarantors,” see 12 C.F.R. § 202.2(e)
(2021), a guarantor is not an “applicant” under the ECOA.
The U.S. Court of Appeals for the Eighth Circuit reached that
conclusion in Hawkins v. Community Bank of Raymore, 761
F.3d 937 (8th Cir. 2014), affirmed by an equally divided court,
577 U.S. 495, 136 S. Ct. 1072, 194 L. Ed. 2d 163 (2016). It
observed that to qualify as an “applicant” under the definition
provided in the ECOA, a person must “apply” for, that is,
request, credit. It reasoned that a guarantor is not an “appli-
cant,” because a guarantor agrees to pay the debt of another in
the event of default, but does not itself request credit. As the
Eighth Circuit put it, “[a] guarantor engages in different con-
duct, receives different benefits, and exposes herself to differ-
ent legal consequences than does a credit applicant.” Hawkins,
761 F.3d at 942.
More recently, the U.S. Court of Appeals for the Eleventh
Circuit also concluded that a guarantor was not an “applicant”
under the ECOA. See Regions Bank v. Legal Outsource PA,
936 F.3d 1184 (11th Cir. 2019). Relying on a number of legal
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and other dictionaries, that court concluded that the ordinary
meaning of the term “applicant” under the ECOA is “one who
requests credit to benefit himself.” Regions Bank, 936 F.3d at
1191. The Eleventh Circuit concluded that a guarantor did not
fit within this definition, explaining that “[a]lthough a guaran-
tor makes a promise related to an applicant’s request for credit,
the guaranty is not itself a request for credit, and certainly not
a request for credit for the guarantor.” Id.
The U.S. Court of Appeals for the Seventh Circuit has also
expressed doubt about whether a guarantor qualifies as an
“applicant” under the ECOA in Moran Foods v. Mid-Atlantic
Market Development, 476 F.3d 436 (7th Cir. 2007). The court
ultimately decided that case on other grounds, but not before
observing that “there is nothing ambiguous about ‘applicant’
and no way to confuse an applicant with a guarantor.” Id.
at 441.
Although one other federal court of appeals has concluded
that for purposes of the ECOA, “applicant” could reasonably
be construed to include a guarantor, see RL BB Acquisition v.
Bridgemill Commons Dev. Group, 754 F.3d 380 (6th Cir. 2014),
we find the reasoning of the Seventh, Eighth, and Eleventh
Circuits persuasive. A guarantor may support an application
for credit, but, in our view, a guarantor does not itself apply
for credit and is thus not an “applicant” under the plain terms
of the ECOA.
Because REO did not qualify as an “applicant” under the
ECOA, it could not seek declaratory or equitable relief under
15 U.S.C. § 1691e(c). And, contrary to REO’s suggestion
otherwise, it could not obtain relief under the ECOA by nam-
ing Lara as a third-party defendant. As we have discussed,
§ 1691e(c) authorizes courts to grant relief to enforce the
ECOA “[u]pon application by an aggrieved applicant . . . .”
Even if Lara qualified as an “applicant” for credit under the
ECOA, she did not make an “application” to the district court
for relief. REO alone asked the district court to declare the
ordinance invalid.
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Because we find that REO was not entitled to seek relief
under the ECOA, we find no error in the district court’s entry
of summary judgment on REO’s claim that the ECOA rendered
the ordinance invalid.
Public Policy.
Next, we address REO’s argument that the district court
erred by rejecting REO’s claim that the ordinance violated
Nebraska public policy. REO alleged in its complaint and now
argues on appeal that the ordinance “violates public policy as
established by the Nebraska Uniform Residential Landlord
[and] Tenant Act.” Brief for appellant at 12. REO focuses on
a particular provision of the Uniform Residential Landlord and
Tenant Act, § 76-1416, which generally prohibits landlords
from demanding a security deposit exceeding 1 month’s rent.
REO argues that because state law caps the amount landlords
may demand as a security deposit, the ordinance cannot create
the potential for additional liability by requiring a landlord to
provide a guarantee in support of a tenant’s application for util-
ity services.
While REO clearly takes the position that the district court
should have declared the ordinance invalid given the statutory
limit on the amount landlords may require as a security deposit,
the precise legal theory it is relying on is less obvious. REO
claims that the ordinance is “void as against public policy.”
Brief for appellant at 26. The only case it relies on in support
of this argument is a New Jersey case that used that language
in finding a municipal ordinance unenforceable. See Economy
Enterprises, Inc. v. Township Committee, 104 N.J. Super. 373,
250 A.2d 139 (1969). REO does not, however, direct us to any
Nebraska authority holding that a municipal ordinance can be
“void as against public policy,” and we are not aware of any
such doctrine under Nebraska law.
Municipal ordinances can of course be preempted by state
law. See State ex rel. City of Alma v. Furnas Cty. Farms, 266
Neb. 558, 667 N.W.2d 512 (2003). This can occur in three
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REO ENTERS. V. VILLAGE OF DORCHESTER
Cite as 312 Neb. 792
different circumstances: (1) where the Legislature expressly
declares in explicit statutory language its intent to preempt
municipal ordinances, (2) where the Legislature’s intent to
preempt municipal ordinances may be inferred from a compre-
hensive scheme of legislation, and (3) where a municipal ordi-
nance actually conflicts with state law. See id. REO, however,
has not made a preemption argument of any kind, let alone
shown that the ordinance is preempted under the recognized
categories discussed above.
We find no error in the district court’s rejection of REO’s
claim that the ordinance violated Nebraska public policy.
Plain Error.
Finally, we come to REO’s argument that the district court
committed plain error. Here, REO contends that the village
lacked the statutory authority to enact the ordinance. And while
REO concedes that it did not raise this issue before the district
court, it asserts that the district court nonetheless plainly erred
by finding that the village had the statutory authority to enact
the ordinance. We disagree.
Plain error is error plainly evident from the record and
of such a nature that to leave it uncorrected would result in
damage to the integrity, reputation, or fairness of the judicial
process. North Star Mut. Ins. Co. v. Miller, 311 Neb. 941, 977
N.W.2d 195 (2022). While REO assigns that the district court
erred by finding that the village had the statutory authority to
enact the ordinance, the district court did not expressly con-
sider that issue. That is not surprising given REO’s concession
that it did not raise the issue of the village’s statutory authority
to enact the ordinance in the district court.
To the extent REO claims the district court committed plain
error by not finding that the village lacked statutory author-
ity, we would still disagree. As noted above, the district court
resolved the case on the parties’ cross-motions for summary
judgment. We have held, however, that a court may not enter a
summary judgment on an issue not presented by the pleadings.
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Cite as 312 Neb. 792
See, e.g., Green v. Box Butte General Hosp., 284 Neb. 243,
818 N.W.2d 589 (2012). Because the district court could not
properly enter summary judgment on an issue REO concedes
it did not raise in the district court, the district court obviously
did not commit plain error by not doing so.
CONCLUSION
We find no error in the district court’s entry of summary
judgment in favor of the village and against REO. Accordingly,
we affirm.
Affirmed.
Papik, J., concurring.
I agree with the majority opinion in all respects, including
its conclusion that under our current precedent, the ordinance
at issue does not qualify as special legislation prohibited by
article III, § 18, of the Nebraska Constitution. I write sepa-
rately, however, to suggest that certain aspects of our precedent
in this area may not be consistent with the text and original
meaning of that constitutional provision.
Application to Municipal Ordinances.
I have more than one concern with our current special leg-
islation precedent. The first is whether the limits on special
legislation expressed in article III, § 18, properly apply to
municipal ordinances like the one challenged in this case. This
court held that a municipal ordinance violated article III, § 18,
as early as 1964. See Midwest Employers Council, Inc. v. City
of Omaha, 177 Neb. 877, 131 N.W.2d 609 (1964). We have
since said on numerous occasions that article III, § 18, applies
to municipal ordinances. See, e.g., Dowd Grain Co. v. County
of Sarpy, 291 Neb. 620, 867 N.W.2d 599 (2015); D-CO, Inc. v.
City of La Vista, 285 Neb. 676, 829 N.W.2d 105 (2013). But,
as far as I can tell, we have never explored whether there is a
principled basis for interpreting the text of article III, § 18, to
do so. I am skeptical such a basis exists.
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Cite as 312 Neb. 792
Article III, § 18, provides that “[t]he Legislature shall not
pass local or special laws” in several enumerated circum-
stances. (Emphasis supplied.) After that list of enumerated
circumstances, article III, § 18, states as follows:
Provided, that notwithstanding any other provisions of
this Constitution, the Legislature shall have authority
to separately define and classify loans and installment
sales, to establish maximum rates within classifications
of loans or installment sales which it establishes, and to
regulate with respect thereto. In all other cases where a
general law can be made applicable, no special law shall
be enacted.
(Second emphasis supplied.)
Article III, § 18, thus contains three rules for three categories
of cases: (1) an absolute prohibition on local or special laws
in the specifically enumerated circumstances, (2) an explicit
authorization of certain special legislation regarding loans and
installment sales, and (3) for all other cases, a prohibition on
special laws if “a general law can be made applicable.” For
ease of reference, I will refer to these provisions respectively
as “the absolute prohibition,” “the loans and installment sales
exception,” and “the catchall prohibition.”
I can discern no textual basis for concluding that the abso-
lute prohibition applies to municipal ordinances. The text pro-
vides that only “the Legislature” shall not pass local or special
laws in the enumerated circumstances. No mention is made of
acts of other branches or levels of government.
As for the catchall prohibition, perhaps one could muster an
argument that it applies to municipal ordinances by emphasiz-
ing that the sentence in which it appears does not expressly
refer to the Legislature. But while the catchall prohibition
does not refer to any enacting authority, it immediately fol-
lows the absolute prohibition and the loans and installments
sales exception, both of which expressly refer only to the
Legislature. This context suggests to me that all of article
III, § 18, is aimed at laws passed by the Legislature. If that
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context were not enough, the placement of this constitutional
provision in article III, the article of the Nebraska Constitution
discussing the enactment of statewide legislation, provides
yet more evidence that article III, § 18, does not apply to
municipal ordinances. See, also, Robert D. Miewald et al., The
Nebraska State Constitution: A Reference Guide 156 (2d ed.
2009) (observing that text of article III, § 18, appears to limit
its application to Legislature).
I recognize that this court has held that another provi-
sion of the state Constitution that refers expressly only to the
Legislature—article III, § 19—nonetheless applies to political
subdivisions of the State. See Retired City Civ. Emp. Club of
Omaha v. City of Omaha Emp. Ret. Sys., 199 Neb. 507, 260
N.W.2d 472 (1977). In that case, we reasoned that to hold
otherwise would permit the State to evade this constitutional
restriction by creating a political subdivision and authoriz-
ing it to do what the Nebraska Constitution prohibited the
Legislature from doing.
Whatever the merits of that reasoning with respect to article
III, § 19, it seems a stretch to apply it to article III, § 18. In
addition to restricting the enactment of “special laws,” the
absolute prohibition of article III, § 18, forbids the enactment
of “local” laws on subjects including “[r]egulating [c]ounty
and [t]ownship offices”; “changing or amending the charter of
any [t]own, [c]ity, or [v]illage”; “[p]roviding for the bonding
of cities, towns, precincts, school districts or other munici-
palities”; and “[p]roviding for the management of [p]ublic
[s]chools.” If article III, § 18, applies to political subdivisions,
its terms would appear to prevent those political subdivisions
from governing themselves in several key areas. No such
problems arise if article III, § 18, is interpreted to apply only
to the Legislature.
Special Legislation Test.
I also have a more general concern about our special leg-
islation jurisprudence: I question whether the test we use to
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identify “special laws” is consistent with the original meaning
of that term.
Nebraska’s article III, § 18, is far from unique. Similar
provisions are found in the legislative articles of approx-
imately 30 other state constitutions. See Anthony Schutz,
State Constitutional Restrictions on Special Legislation as
Structural Restraints, 40 J. Legis. 39 (2013). A number of
jurists who have examined the history of such provisions have
concluded that the restrictions on “special laws” would have
been originally understood as restricting a then-common legis-
lative practice of passing legislation that, by its terms, applied
only to an individual person, corporation, or other entity.
See, Laurance B. VanMeter, Reconsideration of Kentucky’s
Prohibition of Special and Local Legislation, 109 Ky. L.J. 523,
524 (2021) (contending that original understanding of special
legislation prohibited by Kentucky constitution was legisla-
tion that “refer[red] only to a particular individual or entity”);
Schutz, 40 J. Legis. at 58 (contending that “the primary focus
of these provisions was on laws that identified an object and
singled it out for special treatment”); Robert M. Ireland, The
Problem of Local, Private, and Special Legislation in the
Nineteenth-Century United States, 46 Am. J. Legal Hist. 271
(2004). Under this conception, examples of special legislation
would be acts granting a legal remedy or benefit to a specifi-
cally identified party. See, also, Calloway Cty. Sheriff ’s Dep’t
v. Woodall, 607 S.W.3d 557, 572 (Ky. 2020) (concluding that
original understanding of local or special legislation is legisla-
tion that “applies exclusively to particular places or particu-
lar persons”).
If these scholars are correct about the original understand-
ing of the term “special laws,” our special legislation test
may be due for reconsideration. We have held that a legisla-
tive act will be found to constitute special legislation if it
creates an arbitrary and unreasonable method of classifica-
tion. See D-CO, Inc. v. City of La Vista, 285 Neb. 676, 829
N.W.2d 105 (2013). But a statute could create an unreasonable
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classification and be nothing like the type of individualized
statutes the scholars cited above contend were the original tar-
get of special legislation prohibitions. Taking this case as the
basis for an example, if a statute unreasonably or arbitrarily
treats property owners and property renters differently and
without sufficient justification, it would be special legislation
under our current precedent, but it is difficult to see how such
a statute looks anything like a law that singles out a specifi-
cally identified party for special treatment.
Instead of policing individualized legislation, it seems to
me that our current special legislation precedent’s focus on
the reasonableness of classifications provides an avenue for
parties to obtain something akin to heightened equal protec-
tion review. Our precedent says that to withstand a special
legislation challenge, a legislative classification “must rest
upon some reason of public policy, some substantial difference
in circumstances, which would naturally suggest the justice or
expediency of diverse legislation regarding the objects to be
classified.” Dowd Grain Co. v. County of Sarpy, 291 Neb. 620,
628, 867 N.W.2d 599, 606 (2015). To my ears, that sounds a
lot like the intermediate scrutiny test developed by the U.S.
Supreme Court under which certain types of classifications
“must serve important governmental objectives and must be
substantially related to achievement of those objectives.” See,
e.g., Friehe v. Schaad, 249 Neb. 825, 832, 545 N.W.2d 740,
746 (1996).
We have, I acknowledge, asserted that the focus of our spe-
cial legislation test is different from the tests used to evaluate
equal protection challenges. Specifically, we have said the
following:
The analysis under a special legislation inquiry focuses
on the Legislature’s purpose in creating the class and
asks if there is a substantial difference of circumstances
to suggest the expediency of diverse legislation. This
is different from an equal protection analysis under
which the state interest in legislation is compared to the
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statutory means selected by the Legislature to accomplish
that purpose.
Gourley v. Nebraska Methodist Health Sys., 265 Neb. 918, 939,
663 N.W.2d 43, 66 (2003).
With all due respect, I am not sure I grasp the difference the
foregoing quote purports to identify. Instead, I am sympathetic
to the view of a group of commentators who have called the
distinction identified above “somewhat fleeting.” Miewald et
al., supra at 159.
To the extent our special legislation jurisprudence allows
parties to obtain something like intermediate scrutiny equal
protection review by alleging that a classification is spe-
cial legislation, it is effectively a more expansive Equal
Protection Clause. Unless a legislative classification jeop-
ardizes the exercise of a fundamental right or categorizes
on the basis of an inherently suspect characteristic, an equal
protection challenge to that classification is analyzed using
the deferential rational basis standard. See REO Enters. v.
Village of Dorchester, 306 Neb. 683, 947 N.W.2d 480 (2020).
But this limitation does not apply to challenges brought to
legislation under article III, § 18: One need not allege the
jeopardization of a fundamental right or the use of a sus-
pect classification to trigger the arguably heightened review
required by our article III, § 18, precedent. It is not clear
to me, however, that the text or history of article III, § 18,
suggests that this provision should be policing the reason-
ableness of legislative classifications at all, let alone under a
heightened standard of scrutiny. See Schutz, 40 J. Legis. at
55 (“[t]he text of special-legislation provisions reveals little
in terms of a concern for substantive equality, whether it is
the minoritarian concerns of the mid- to late-1800s or some
broader notion of equality”).
Conclusion.
No party in this case asked us to reconsider whether article
III, § 18, properly applies to municipal ordinances. Neither
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were we asked to reconsider the tests we have developed to
identify special legislation under that constitutional provision.
In the absence of such arguments, the majority’s decision
to analyze this case under our current precedent makes per-
fect sense.
That said, this court has emphasized that the “main inquiry”
in interpreting the Nebraska Constitution is the original
meaning of its provisions. See State ex rel. State Railway
Commission v. Ramsey, 151 Neb. 333, 340, 37 N.W.2d 502,
507 (1949). We have also stressed the importance of adhering
to the text of constitutional provisions. See id. For the reasons
discussed in this concurrence, I believe our precedent under
article III, § 18, may not be entirely consistent with that pro-
vision’s original meaning and text. In an appropriate case, I
would be open to reconsidering that precedent. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487192/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/18/2022 09:05 AM CST
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312 Nebraska Reports
SCHREIBER BROS. HOG CO. V. SCHREIBER
Cite as 312 Neb. 707
Schreiber Brothers Hog Company, LLC,
a Nebraska limited liability company,
and Steven Schreiber, an individual
member, appellees, v. Jerald
Schreiber, an individual
member, appellant.
___ N.W.2d___
Filed October 28, 2022. No. S-21-570.
1. Jurisdiction: Appeal and Error. A jurisdictional question that does not
involve a factual dispute is determined by an appellate court as a matter
of law.
2. Judgments: Appeal and Error. When reviewing questions of law, an
appellate court resolves the questions independently of the lower court’s
conclusions.
3. Jurisdiction: Appeal and Error. Appellate courts have an independent
obligation to ensure they have appellate jurisdiction.
4. Actions. A special proceeding includes every special statutory remedy
that is not itself an action.
5. Actions: Words and Phrases. An action is any proceeding in a court by
which a party prosecutes another for enforcement, protection, or deter-
mination of a right or the redress or prevention of a wrong involving and
requiring the pleadings, process, and procedure provided by statute and
ending in a judgment.
6. Final Orders: Words and Phrases. A substantial right is an essential
legal right, not a mere technical right.
7. Final Orders: Appeal and Error. A substantial right is affected if an
order affects the subject matter of the litigation, such as by diminishing
a claim or defense that was available to an appellant before the order
from which an appeal is taken.
8. Final Orders. It is not enough that the right itself be substantial; the
effect of the order on that right must also be substantial.
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9. Final Orders: Appeal and Error. A substantial right is not affected
when that right can be effectively vindicated in an appeal from the final
judgment.
10. Restitution: Unjust Enrichment. To recover under a theory of unjust
enrichment, the plaintiff must allege facts that the law of restitution
would recognize as unjust enrichment.
11. Contracts: Unjust Enrichment. One who is free from fault cannot be
held to be unjustly enriched merely because one has chosen to exercise
a contractual or legal right.
12. ____: ____. The doctrine of unjust enrichment is recognized only in the
absence of an agreement between the parties.
Appeal from the District Court for Platte County: Robert R.
Steinke, Judge. Appeal dismissed in part, and in part reversed
and remanded with directions.
David A. Domina, of Domina Law Group, P.C., L.L.O., for
appellant.
Jonathan M. Brown, of Walentine O’Toole, L.L.P., for
appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
After Steven Schreiber filed a complaint asking for the dis-
solution of the limited liability company he owned in equal
shares with his brother, Jerald Schreiber, the district court
ordered dissolution and directed a receiver to liquidate the
company’s assets. Those assets included two buildings owned
by the company but located on land owned by Jerald. Jerald
made the only offer to purchase the buildings, but Steven
contended that if the buildings were sold to Jerald at the
price offered, Jerald would be unjustly enriched. The parties
later agreed that the district court should order the receiver to
accept Jerald’s offer, but that Steven and the company should
be allowed to continue to pursue a claim of unjust enrich-
ment. Following a trial, the district court found that Jerald
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Cite as 312 Neb. 707
was unjustly enriched and ordered him to pay an additional
$400,184 to the company. The district court also denied a
motion filed by Jerald asking the district court to provide fur-
ther directions to the receiver.
In Jerald’s appeal of these rulings, we find that we lack
jurisdiction to review the order denying the motion for further
directions but that the district court erred in its unjust enrich-
ment finding. We therefore dismiss in part, and in part reverse
and remand with directions.
I. BACKGROUND
1. Dissolution Action Filed;
Receiver Appointed
Jerald and Steven formed the Schreiber Brothers Hog
Company, LLC, in 2011. They each owned a 50-percent inter-
est in the company and managed it together for a number
of years.
This case began when Steven commenced an action in the
district court on behalf of the company and himself seeking the
judicial dissolution of the company pursuant to Neb. Rev. Stat.
§ 21-147(a)(5) (Cum. Supp. 2021). Jerald eventually agreed
that the company should be dissolved and that a receiver
should be appointed to wind up the company’s affairs. The
district court subsequently ordered dissolution and appointed a
receiver to wind up the company’s activities.
2. Complaint Amended to Raise Claims
Regarding Hog Buildings
After the receiver had begun his work and liquidated most of
the company’s assets, Steven and the company obtained leave
to file an amended complaint. The amended complaint added
several additional claims for relief, all of which pertained to
two buildings used in the company’s hog production busi-
ness which the receiver had not yet sold. The two buildings
are referred to by the parties as a “finishing building” and a
“nursery.” All agree that these buildings were owned by the
company, but located on land owned only by Jerald.
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SCHREIBER BROS. HOG CO. V. SCHREIBER
Cite as 312 Neb. 707
In the amended complaint, Steven and the company requested
that the district court quiet title to the real property upon which
the buildings were located in the company’s name on the basis
of adverse possession. Alternatively, they requested that the
district court grant the company a prescriptive easement or
easement by necessity to allow it and any successors in interest
or grantees to enter the real property upon which the buildings
were located as the company had during its operation. As a
final alternative, Steven and the company alleged that if they
did not obtain any of the previously described relief, the com-
pany was entitled to a judgment for unjust enrichment against
Jerald in the amount of the fair market value of the property.
The amended complaint alleged that an appraisal obtained by
the receiver estimated the market value of the buildings to be
$450,000.
After conducting some discovery, Steven and the company
voluntarily dismissed their claims for adverse possession, pre-
scriptive easement, and easement by necessity.
3. Hearing on Disposition of
Hog Buildings
Before adjudicating the remaining claim of unjust enrich-
ment, the district court held a hearing regarding what action the
receiver should take as to the buildings. Prior to the hearing,
counsel for Steven and the company argued that the district
court should either enter an order declaring the buildings the
“de facto assets of Jerald” and ordering him to pay for their
reasonable value or order that the buildings be dismantled.
Counsel for Jerald argued that the buildings should be sold to
the highest bidder.
The district court received evidence at the hearing, including
testimony from Steven, Jerald, and the receiver. The evidence
established that when the buildings were constructed in 1994
and 1997, the company was not yet formed, and that Jerald and
Steven were working together as part of a general partnership.
Jerald testified that at the time the buildings were built on his
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property, Steven knew that the buildings were being built on
land that Jerald owned.
After the formation of the company, the buildings came to
be owned by the company, but Jerald continued to own the real
property where they were located. The receiver testified that he
attempted to sell the buildings along with the rest of the com-
pany’s assets, but that many parties who made initial inquiries
about purchasing the buildings lost interest upon learning that
the land upon which the buildings were located was not for
sale and that there was no legal right of ingress and egress to
access the buildings. The receiver testified that Jerald made
the only offer to purchase the buildings and that he offered to
purchase them for their assessed value, which was $18,000.
Jerald confirmed that he was willing to purchase the buildings
for $18,000. He also acknowledged that he was not willing to
grant an easement to allow a buyer of the buildings to access
them. He testified that he would not want to have “someone
else going in and out of there any time of the day or night on
their own accord.”
An appraiser hired by the receiver also testified. The
appraiser testified that in his opinion, the buildings were
worth $450,000. He testified that he formed this opinion
by calculating the difference between the value of the land
together with the buildings and the value of the land without
the buildings. The district court also received evidence about
whether or not the buildings were operational. On this point,
there was some disagreement by the witnesses. The receiver
described the buildings as operational, but Jerald and his son
testified the buildings were in a state of significant disrepair
from nonuse, termination of utilities, frost and thaw cycles,
and condensation damage.
At the conclusion of the hearing, the parties agreed that they
would submit written briefs to the district court and that the
district court would take the matter under advisement. The dis-
trict court also scheduled a trial on the remaining unjust enrich-
ment claim asserted by Steven and the company.
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4. Trial on Unjust Enrichment Claim
On the day the unjust enrichment claim was scheduled to
be tried, the district court stated on the record that the parties
had reached an agreement that the receiver should be directed
to accept Jerald’s offer to purchase the buildings for $18,000,
“with the understanding that nothing with respect to that stipu-
lation of the parties would be construed as a final determina-
tion on the [unjust enrichment claim,] which [Steven and the
company] then would pursue.” The district court later entered
a written order to the same effect.
With respect to the district court’s consideration of the
unjust enrichment claim, the parties agreed that the district
court could consider all evidence and testimony offered at the
prior hearing regarding the disposition of the buildings. Jerald
and Steven also provided additional limited testimony.
After taking the matter under advisement, the district court
entered a written order finding that judgment should be entered
in favor of the company and against Jerald on the unjust
enrichment claim. The district court relied heavily upon an
opinion of the Arkansas Court of Appeals, Trickett v. Spann,
2020 Ark. App. 552, 613 S.W.3d 773 (2020). We discuss this
case in more detail in the analysis section below.
The district court also found that because the buildings
could not be sold with a right to ingress and egress, they had
value only to Jerald. It reasoned that if Jerald were allowed to
obtain the property for only the price for which he offered to
purchase them, the company would not receive “reasonable
compensation” and Jerald would receive a “personal windfall
to which he is not entitled.”
On the issue of damages, the district court noted some
of Jerald’s evidence showing that the buildings would need
repairs before they could be used, but concluded that the
appraiser’s opinion was the only credible evidence of valua-
tion. The district court found that the reasonable value of the
buildings was just over $418,000 and ordered Jerald to pay the
difference between that amount and the $18,000 he previously
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Cite as 312 Neb. 707
tendered to purchase the buildings. Because the buildings were
owned by the company, the district court dismissed Steven’s
claim for unjust enrichment.
5. Motion for Further Directions
After the receiver was appointed, Jerald filed a motion pur-
suant to Neb. Rev. Stat. § 25-1087 (Reissue 2016) requesting
that the district court enter an order providing further direc-
tions to the receiver. Among other things, Jerald requested that
the district court order the receiver to pay certain bills Jerald
claims were incurred by the company, both before and after the
appointment of the receiver. The motion alleged that Jerald had
requested that the receiver pay the bills and that the receiver
had refused.
The district court held a hearing on the motion for further
directions on the same day it held trial on the unjust enrich-
ment claim. At the hearing, Jerald testified regarding several
bills he contended were incurred by the company, but the
receiver had refused to pay. The receiver also testified. When
asked by Jerald’s counsel about several of the bills for which
Jerald sought court direction to pay, the receiver testified that
he had not yet paid the bills, but he would consider paying
them. With respect to other bills, he testified that he did not
believe they were legitimate expenses of the company. In
response to a question about whether a bill should be paid,
the receiver stated that he had a “budget problem,” which
we understand to refer to the fact that the amount of the bills
Jerald was asking the district court to direct the receiver to pay
exceeded the funds held by the receiver.
In the same document in which the district court explained
its unjust enrichment finding, it denied the relief requested in
the motion for further directions without further explanation.
6. Appeal
Jerald filed an appeal within 30 days of the district court’s
order finding unjust enrichment and denying the motion for
further directions. We moved the case to our docket.
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Cite as 312 Neb. 707
II. ASSIGNMENTS OF ERROR
Jerald assigns several errors on appeal, but they can be con-
solidated and restated as three: He contends that the district
court erred (1) in its finding that the company was entitled to
recover on its unjust enrichment claim, (2) in its calculation
of the amount that Steven was unjustly enriched, and (3) in its
denial of Jerald’s motion for further directions regarding the
payment of bills.
III. STANDARD OF REVIEW
The parties disagree on the standard of review we should
apply to Jerald’s arguments concerning the unjust enrichment
judgment. Steven and the company contend that our opinion in
City of Scottsbluff v. Waste Connections of Neb., 282 Neb. 848,
809 N.W.2d 725 (2011), holds that claims of unjust enrich-
ment are actions at law and that thus, we should apply the
standard of review we would normally apply in reviewing a
bench trial of a law action, i.e., the court’s factual findings are
not disturbed unless clearly wrong, but questions of law are
reviewed independently. Jerald, on the other hand, contends
that because the unjust enrichment claims were raised in the
context of an action to dissolve the company and actions to
dissolve a limited liability company are actions in equity, we
should apply the standard of review applicable to appeals from
bench trials of equity actions, i.e., de novo on the record, with
this court independently resolving both questions of law and
questions of fact. See Schmid v. Simmons, 311 Neb. 48, 970
N.W.2d 735 (2022). We find that we need not resolve this dis-
pute as to the standard of review. Jerald’s unjust enrichment
arguments primarily turn on issues of law, and even under the
more deferential standard of review urged by Steven and the
company, we find that the district court’s unjust enrichment
finding is erroneous.
[1,2] A jurisdictional question that does not involve a fac-
tual dispute is determined by an appellate court as a matter of
law. In re Estate of Beltran, 310 Neb. 174, 964 N.W.2d 714
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(2021). When reviewing questions of law, an appellate court
resolves the questions independently of the lower court’s con-
clusions. Id.
IV. ANALYSIS
1. Appellate Jurisdiction
[3] While the issue of appellate jurisdiction was not initially
raised by the parties, we have an independent obligation to
ensure we have appellate jurisdiction. State v. Reames, 308
Neb. 361, 953 N.W.2d 807 (2021). With that duty in mind,
we ordered the parties to submit supplemental briefing on
the issue. We now consider that issue, first as to the denial of
the motion for further directions and then as to the finding of
unjust enrichment.
(a) Motion for Further Directions
We begin our analysis of our jurisdiction to review the
district court’s denial of Jerald’s motion for further directions
with Neb. Rev. Stat. § 25-1090 (Reissue 2016). That statute
provides that “[a]ll orders appointing receivers” and “giving
them further directions” may be appealed. Id. Jerald takes the
position that because the district court did not give further
directions but denied his request to do so, this statute does not
authorize our review. We agree. Jerald argues, however, that
we have jurisdiction to review the district court’s order because
it qualifies as a final order under Neb. Rev. Stat. § 25-1902
(Cum. Supp. 2020). We consider that issue next.
Section 25-1902 currently recognizes four categories of final
orders. In our view, however, the order denying the motion for
further directions could fit into only one such category: those
orders “affecting a substantial right made during a special pro-
ceeding.” § 25-1902(1)(b).
[4,5] A special proceeding occurs where the law confers a
right and authorizes a special application to a court to enforce
it. See In re Grand Jury of Douglas Cty., 302 Neb. 128,
922 N.W.2d 226 (2019). A special proceeding includes every
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special statutory remedy that is not itself an action. See Kremer
v. Rural Community Ins. Co., 280 Neb. 591, 788 N.W.2d 538
(2010). An action is any proceeding in a court by which a party
prosecutes another for enforcement, protection, or determina-
tion of a right or the redress or prevention of a wrong involving
and requiring the pleadings, process, and procedure provided
by statute and ending in a judgment. In re Grand Jury of
Douglas Cty., supra. Every other legal proceeding by which a
remedy is sought by original application to a court is a special
proceeding. Id.
Applying these rules, we find that once the district court
granted dissolution and appointed a receiver, a special pro-
ceeding commenced. Neb. Rev. Stat. § 21-148(e) (Reissue
2012) authorizes the district court, on application of a mem-
ber of a limited liability company (LLC), to “order judicial
supervision of the winding up of a dissolved [LLC], including
the appointment of a person to wind up the company’s activi-
ties.” Judicial supervision of the winding up an LLC is thus a
remedy that may be sought by application to a court, but it is
not an action. Treating judicial supervision of a receivership
as a special proceeding is also consistent with our precedent.
In Sutton v. Killham, 285 Neb. 1, 825 N.W.2d 188 (2013),
we held that we could review a district court’s determination
that a receiver could deny a claim for payment of services
as an action that affected a substantial right during a special
proceeding.
[6-9] The fact that the order denying the motion for further
directions was issued in a special proceeding does not, by
itself, make the order appealable. The order must have also
affected a substantial right. See § 25-1902(1)(b). A substantial
right is an essential legal right, not a mere technical right. In
re Estate of Beltran, 310 Neb. 174, 964 N.W.2d 714 (2021). A
substantial right is affected if an order affects the subject mat-
ter of the litigation, such as by diminishing a claim or defense
that was available to an appellant before the order from which
an appeal is taken. Id. It is not enough that the right itself
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be substantial; the effect of the order on that right must also
be substantial. Id. A substantial right is not affected when that
right can be effectively vindicated in an appeal from the final
judgment. In re Estate of Larson, 308 Neb. 240, 953 N.W.2d
535 (2021).
We have approvingly cited a commentator who has sug-
gested that in the context of multifaceted special proceedings
that are designed to administer the affairs of a person, an order
that ends a discrete phase of the proceedings affects a substan-
tial right because it finally resolves the issues raised in that
phase. See id., citing John P. Lenich, What’s So Special About
Special Proceedings? Making Sense of Nebraska’s Final Order
Statute, 80 Neb. L. Rev. 239 (2001). We have employed that
“discrete phase” rubric in a number of probate proceedings.
See, In re Estate of Severson, 310 Neb. 982, 970 N.W.2d 94
(2022); In re Estate of Beltran, supra; In re Estate of Larson,
supra; In re Estate of McKillip, 284 Neb. 367, 820 N.W.2d 868
(2012). We have also held that in probate cases, while an order
ending a discrete phase of the proceeding is appealable, one
that is merely preliminary to such an order is not. See In re
Estate of Larson, supra.
Although the judicial supervision of the winding up of an
LLC is not designed to administer the affairs of a person, it
can be a multifaceted proceeding that is designed to administer
the affairs of an LLC. Indeed, it bears substantial similarity to
a probate proceeding: Probate is the legal process by which
a deceased person’s debts are paid and assets distributed; the
judicial supervision of the winding up of an LLC is the legal
process by which a dissolved LLC’s debts are paid and assets
distributed. See § 21-148(b). We also note that the Nebraska
Court of Appeals has previously analyzed whether an order
entered in a receivership proceeding affected a substantial right
by applying the discrete phase analysis. See Sutton v. Killham,
22 Neb. App. 257, 854 N.W.2d 320 (2014). We find it appro-
priate to apply the discrete phase rubric to orders entered in the
judicial supervision of the winding up of an LLC.
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Applying that discrete phase rubric, we conclude that the
order denying the motion for special directions did not end
a discrete phase of the proceedings and thus did not affect a
substantial right. In the motion for further directions, Jerald
sought an order specifically directing the receiver to pay cer-
tain expenses. At the hearing on that motion, the receiver’s
testimony demonstrated that he had not made a final determi-
nation of the expenses that he would pay. Indeed, he testified
that he would consider paying some of the expenses that were
the subject of Jerald’s motion but that a “budget problem”
complicated that task.
Given the evidence adduced and the district court’s order,
contrary to the parties, we do not understand the district court’s
denial of the motion for further directions to be a final deter-
mination that the receiver need not pay the expenses at issue.
Rather, we understand the district court merely to have deter-
mined that additional, specific direction was not necessary at
that time. Because the district court’s order denying Jerald’s
motion for further directions did not affect a substantial right
of Jerald’s, we find that we lack jurisdiction under § 25-1902.
And because we can discern no other basis of appellate juris-
diction, we dismiss that portion of Jerald’s appeal.
(b) Unjust Enrichment
We now consider whether we have appellate jurisdiction to
review the district court’s resolution of the unjust enrichment
claims. We begin our analysis of that question by consider-
ing whether this case implicates Neb. Rev. Stat. § 25-1315
(Reissue 2016). Specifically, we consider whether the fact
that the judicial supervision of the winding up of the company
apparently remained ongoing at the time the appeal was filed
precludes appellate review of the district court’s resolution of
the unjust enrichment claim under § 25-1315.
Section 25-1315(1) provides, in relevant part:
When more than one claim for relief is presented in an
action, . . . or when multiple parties are involved, the
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court may direct the entry of a final judgment as to one or
more but fewer than all of the claims or parties only upon
an express determination that there is no just reason for
delay and upon an express direction for the entry of judg-
ment. In the absence of such determination and direction,
any order or other form of decision, however designated,
which adjudicates fewer than all the claims or the rights
and liabilities of fewer than all the parties shall not ter-
minate the action as to any of the claims or parties . . . .
As we have recently explained, § 25-1315(1) is implicated
only when a case presents more than one claim for relief or
involves multiple parties, and the court enters an order which
adjudicates fewer than all the claims or the rights and liabili-
ties of fewer than all the parties. See Mann v. Mann, ante p.
275, 978 N.W.2d 606 (2022). For purposes of determining
whether a case presents more than one “claim for relief” under
§ 25-1315(1), we have said the term is not synonymous with
“issue” or “theory of recovery,” but is instead the equivalent of
a cause of action. Mann v. Mann, supra.
We find in this circumstance that § 25-1315(1) is not impli-
cated. Although the parties have asserted more than one claim
for relief during the course of this case, the order adjudicat-
ing the unjust enrichment claim did not adjudicate fewer than
all the remaining claims in the case or leave claims asserted
against certain parties for future resolution. Steven initially
asserted a claim for judicial dissolution on behalf of the com-
pany, but that claim was resolved when the court ordered
dissolution. Steven and the company also asserted claims for
adverse possession, prescriptive easement, and easement by
necessity, but those claims were involuntarily dismissed. At the
time the district court decided the unjust enrichment claim, it
was the only claim remaining in the case.
Because we find that § 25-1315(1) is not implicated, we
have appellate jurisdiction to review the district court’s order
resolving the unjust enrichment claim if it satisfies § 25-1902.
Cf. Mann v. Mann, supra. We find that the order is appealable
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under § 25-1902, because it affects a substantial right in a spe-
cial proceeding.
We have already explained our conclusion that the judicial
supervision of the winding up of the company is a special
proceeding. We also find that the order resolving the unjust
enrichment claim was entered in that special proceeding. The
claim of unjust enrichment arose once the judicial supervi-
sion of the winding up process began and Jerald was the only
interested buyer for the buildings. The parties later agreed
that the receiver should be directed to sell the buildings to
Jerald at the price he offered to pay. The unjust enrichment
claim was then litigated under the theory that the sale to
Jerald at that price would result in his unjust enrichment.
The district court’s eventual order found unjust enrichment
and effectively ordered Jerald to pay additional amounts for
the buildings. The unjust enrichment claim was inextricably
bound up within the judicial supervision of the winding up
of the company. Under these circumstances, we find that the
order resolving the unjust enrichment claim was entered in a
special proceeding.
We recognize that a claim for unjust enrichment will, in the
vast majority of cases, be litigated in an action. After all, it is
usually a claim that one party prosecutes against another for
the enforcement, protection, or determination of a right or for
the redress or prevention of a wrong; is usually decided by way
of pleadings, process, and procedure provided by statute; and
usually ends in a judgment. See, e.g., Bloedorn Lumber Co. v.
Nielson, 300 Neb. 722, 915 N.W.2d 786 (2018). Under these
assuredly rare circumstances, however, we find that the unjust
enrichment claim was entered in a special proceeding.
Having determined that the order resolving the unjust enrich-
ment claim was entered in a special proceeding, we return to
the discrete phase rubric discussed above. Here, we find that
the order resolving the unjust enrichment claim ended a dis-
crete phase of the proceeding. It ended the phase of the pro-
ceeding dedicated to resolving the claims of Steven and the
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company that Jerald was unjustly enriched by his purchase
of the buildings and should be required to pay more to the
company. The district court held a trial on this issue and then
entered an order determining that Jerald was unjustly enriched
and ordering him to pay an additional $400,184 for the pur-
chase of the buildings. In this respect, the order is much like
the order we found appealable in Sutton v. Killham, 285 Neb.
1, 825 N.W.2d 188 (2013). In that case, we reviewed an order
of summary judgment finding that a receiver correctly denied
a claim for payment of services. We see no meaningful dif-
ference between the conclusive determination that a party in
receivership had no liability for a debt in Sutton v. Killham
and the district court’s conclusive determination that a party in
receivership was owed a debt here.
We also find similarity between this case and In re Estate of
McKillip, 284 Neb. 367, 820 N.W.2d 868 (2012). We described
that case as one in which a party sought partition of certain
real property within a probate proceeding. See id. at 372, 820
N.W.2d at 874 (“we are presented with the partition of real
property in an estate proceeding”). The testator left four tracts
of land to his three daughters, one of whom sought partition
of the property. The county court found that partition of the
property should be made and appointed a referee. The referee
concluded that the real property should be partitioned by sale;
however, one of the daughters opposed the partition by sale.
Ultimately, the court ordered partition by sale, and the daughter
appealed. Before we reached the merits of the case, we con-
sidered whether or not we had appellate jurisdiction. We con-
cluded that the circumstances qualified as an order that affected
a substantial right. We reasoned:
The county court’s order directing the referee to sell the
property would affect the right of the devisees to receive
the real estate in kind and would force them to sell their
interests in the land. The distribution of the real estate is
a discrete phase of the probate proceedings and would
finally resolve the issues in that phase of the probate of
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the estate. It could be months before an appeal from the
order of confirmation would be finally resolved. In the
interim, distribution of the assets of the estate would have
to wait until that phase of the probate was finally resolved
regarding distribution of the real estate. The sale of the
real estate would diminish the right of the devisees to
have the real estate distributed in kind.
Id. at 374, 820 N.W.2d at 876.
Similar reasoning applies in these circumstances. As in In
re Estate of McKillip, the district court here fully resolved an
issue presented within a multifaceted proceeding. And, like
the situation in In re Estate of McKillip, delaying review of
that finally resolved issue will complicate the resolution of the
entire proceeding. Here, the question of whether the company’s
unjust enrichment recovery will stand obviously affects the
resources the receiver will have available in completing the
winding up of the company’s affairs.
For these reasons, we find that the order of the district court
awarding the company an unjust enrichment recovery from
Jerald affected a substantial right during a special proceeding.
We turn to the merits of that issue now.
2. Unjust Enrichment Merits
The district court concluded that Jerald was unjustly enriched
at the company’s expense when he purchased the buildings
for $18,000. Unjust enrichment claims do not arise from an
express or implied agreement between the parties; rather, they
are imposed by law “when justice and equity require the
defendant to disgorge a benefit that he or she has unjustifi-
ably obtained at the plaintiff’s expense.” Bloedorn Lumber Co.
v. Nielson, 300 Neb. 722, 729, 915 N.W.2d 786, 792 (2018)
(internal quotation marks omitted).
Jerald attacks the district court’s unjust enrichment judg-
ment on a number of fronts. One such argument is that the
district court erred by basing its unjust enrichment finding on
the fact that the transfer of the buildings to Jerald for the price
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he offered would result in his receiving a windfall and the
company’s not receiving reasonable compensation. According
to Jerald, “financial disparity” in a transaction alone cannot
establish unjust enrichment liability. Brief for appellant at 3.
Jerald is undoubtedly correct that an unjust enrichment
recovery is not available solely because a court finds that one
party to an exchange obtained a better deal, or even a much
better deal, than another. Our cases and other authorities
confirm that unjust enrichment, while a flexible remedy, is a
narrower concept. This idea is helpfully summarized in the
comments to the Restatement (Third) of Restitution and Unjust
Enrichment:
[T]he law of restitution is very far from imposing liabil-
ity for every instance of what might plausibly be called
unjust enrichment. The law’s potential for intervention
in transactions that might be challenged as inequitable is
narrower, more predictable, and more objectively deter-
mined than the unconstrained implications of the words
“unjust enrichment.” . . .
The concern of restitution is not, in fact, with unjust
enrichment in any such broad sense, but with a narrower
set of circumstances giving rise to what might more
appropriately be called unjustified enrichment. Compared
to the open-ended implications of the term “unjust enrich-
ment,” instances of unjustified enrichment are both pre-
dictable and objectively determined, because the justifica-
tion in question is not moral but legal.
1 Restatement (Third) of Restitution and Unjust Enrichment
§ 1, comment b. at 5 (2011) (emphasis in original).
Consistent with these thoughts, we have emphasized that
“‘[t]he fact that a recipient has obtained a benefit without
paying for it does not of itself establish that the recipient
has been unjustly enriched,’” Kalkowski v. Nebraska Nat.
Trails Museum Found., 290 Neb. 798, 806, 862 N.W.2d 294,
301-02 (2015), quoting 1 Restatement (Third) of Restitution
and Unjust Enrichment, supra, § 2(1), and that the doctrine
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does not exist to rescue a party from the consequences of a
bad bargain, Washa v. Miller, 249 Neb. 941, 546 N.W.2d 813
(1996). Or, as the Texas Supreme Court has articulated the
same basic idea, “[u]njust enrichment is not a proper remedy
merely because it might appear expedient or generally fair
that some recompense be afforded for an unfortunate loss to
the claimant, or because the benefits to the person sought to
be charged amount to a windfall.” Heldenfels Bros. v. City of
Corpus Christi, 832 S.W.2d 39, 42 (Tex. 1992) (internal quota-
tion marks omitted).
[10,11] Rather than a tool that a court can use to correct any
transaction it might find unfair or unequal, the unjust enrich-
ment remedy can be taken off the shelf in more limited situ-
ations. As we have held, to recover under a theory of unjust
enrichment, the plaintiff must allege facts that the law of resti-
tution would recognize as unjust enrichment. City of Scottsbluff
v. Waste Connections of Neb., 282 Neb. 848, 809 N.W.2d 725
(2011). We have explained that this rule does not mean that
prior cases must have recognized a specific fact pattern as
unjust enrichment in order for an unjust enrichment recovery
to be available. It does mean, however, that an unjust enrich-
ment plaintiff must demonstrate that under the circumstances,
principles of the law of restitution would authorize a recovery.
We have said that it is a “bedrock principle of restitution”
that unjust enrichment occurs when there is a “transfer of a
benefit without adequate legal ground” or a “transaction that
the law treats as ineffective to work a conclusive alteration
in ownership rights.” Id. at 866, 809 N.W.2d at 743, quoting
Restatement (Third) of Restitution and Unjust Enrichment, § 1,
comment b. (internal quotation marks omitted). We have also
said one who is free from fault cannot be held to be unjustly
enriched merely because one has chosen to exercise a contrac-
tual or legal right. Kissinger v. Genetic Eval. Ctr., 260 Neb.
431, 618 N.W.2d 429 (2000).
Given the foregoing, we find that the company was not
entitled to an unjust enrichment recovery solely because the
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district court found that the transfer of the buildings to Jerald
at the price he offered was economically lopsided. Even assum-
ing the result of the transfer was a much better deal for Jerald
than the company, this alone does not demonstrate that the
transfer occurred without an adequate legal ground or that it
was ineffective to work a conclusive alteration in ownership
rights of the buildings. And while the district court appears to
have concluded that Jerald was able to benefit from the circum-
stances solely because he was not willing to grant an easement
on his property for ingress to and egress from the buildings,
we see no basis to find that Jerald was obligated to grant such
an easement.
Aside from the bare economics of the transaction, Steven
and the company argued and the district court found that an
unjust enrichment recovery was warranted based on the rea-
soning of the Arkansas Court of Appeals in Trickett v. Spann,
2020 Ark. App. 552, 613 S.W.3d 773 (2020). Again, we dis-
agree. In that case, plaintiffs, a husband and wife, paid for
the construction of a house on real property owned by their
daughter and her husband. Plaintiffs lived in the home for a
time, but moved away after their daughter died. After plain-
tiffs had moved away and their daughter’s husband refused to
pay them for the home, they filed a lawsuit claiming unjust
enrichment and prevailed in the trial court. The appellate court
upheld the unjust enrichment recovery, but did so based on
the theory that an unjust enrichment recovery was appropri-
ate when a plaintiff provides improvements to a defendant’s
property, the circumstances were such that the plaintiff rea-
sonably expected the defendant to pay for the value of the
improvements, and the defendant was aware the plaintiff was
providing the improvements with the expectation of being
paid. The appellate court pointed to specific evidence in the
record demonstrating that plaintiffs expected their daughter
and her husband to pay for the home and that the daughter’s
husband accepted the home knowing that his in-laws expected
to be paid.
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While there is some surface similarity between this case and
Trickett v. Spann, the unjust enrichment rationale applied there
does not fit here. Unlike the plaintiffs in Trickett v. Spann,
Steven and the company can point to no evidence in the record
that the company constructed the buildings on Jerald’s land
with the expectation that Jerald would pay for them or that
Jerald allowed the buildings to be built there knowing that
the company expected to be paid. The company did not even
exist when the buildings were constructed. At that time, Jerald
and Steven were operating as a general partnership. And even
if that fact can be set to the side, there is also nothing in the
record that suggests that when the buildings were constructed,
Steven expected Jerald to pay him for the buildings, or that
Jerald allowed the construction of the buildings knowing that
such payment was expected.
Not only do we find the district court’s rationales for its
unjust enrichment judgment unpersuasive, we find that its
judgment is inconsistent with other principles of the law of
unjust enrichment. First, an unjust enrichment recovery is
generally unavailable when a party conferring a benefit has
the opportunity to form a contract with the party receiv-
ing the benefit, but neglects the opportunity to do so. See 1
Restatement (Third) of Restitution and Unjust Enrichment,
§ 2, comment d. (2011). The rationale for this principle is that
when voluntary transactions are feasible, it is preferable “to
require the parties to make their own terms [rather] than for
a court to try to fix them.” Indiana Lumbermens Mut Ins v.
Reinsurance Results, 513 F.3d 652, 657 (7th Cir. 2008). See,
also, 1 Dan B. Dobbs, Dobbs Law of Remedies § 4.9(4) at
690 (2d ed. 1993) (providing that “[i]f the parties could have
contracted but did not, the plaintiff generally is denied recov-
ery of the non-cash benefit”). Here, the company appears to
be claiming that it is entitled to an unjust enrichment recovery
because Jerald and Steven, through their partnership, conferred
a benefit on Jerald by constructing the buildings on his land
many years ago. But, at that time, Steven knew the buildings
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were being constructed on Jerald’s land. As Steven’s counsel
conceded at oral argument, there was no evidence that Steven
was deceived as to the buildings being built on Jerald’s land;
rather, he “went into this eyes wide open.” Despite knowing
where the buildings were being constructed, Steven did not
insist on contractual terms, but, in the words of the U.S. Court
of Appeals for the Seventh Circuit, is asking “a court to try
to fix them.” Indiana Lumbermens Mut Ins v. Reinsurance
Results, 513 F.3d at 657.
[12] In addition, the doctrine of unjust enrichment is rec-
ognized only in the absence of an agreement between the par-
ties. Washa v. Miller, 249 Neb. 941, 546 N.W.2d 813 (1996).
Steven and the company claim, and the district court found,
that Jerald was unjustly enriched by receiving the buildings
for his offered price of $18,000 and that he should have to pay
more. But this overlooks the fact that the parties agreed that
the district court should order the receiver to sell the buildings
to Jerald for that price. To this, Steven and the company will
no doubt respond that both they and Jerald agreed that a sale
should take place on those terms with the reservation that the
sale would not preclude further pursuit of an unjust enrichment
claim. While this reservation certainly permitted Steven and
the company to pursue an unjust enrichment claim after the
sale, it did not change the law of unjust enrichment that gov-
erned it. And in our view, despite the parties’ agreement that
an unjust enrichment claim could still be pursued, the company
could not, consistent with unjust enrichment principles, agree
to sell the buildings to Jerald for one price and also ask that the
district court order him to pay more. Such an outcome results
in Jerald’s effectively purchasing the buildings for much more
than he offered and agreed to pay.
Because we find that the district court erred in entering
judgment for the company and against Jerald on the com-
pany’s unjust enrichment claim, we reverse that judgment and
remand the cause with directions to enter judgment in Jerald’s
favor.
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Because we find that the unjust enrichment judgment was
erroneous, we need not consider Jerald’s contention that the
district court erred in its calculation of the amount Steven was
unjustly enriched. An appellate court is not obligated to engage
in an analysis that is not necessary to adjudicate the case and
controversy before it. Cain v. Lymber, 306 Neb. 820, 947
N.W.2d 541 (2020).
V. CONCLUSION
We find that we lack jurisdiction to review the district
court’s order denying Jerald’s motion for further directions.
We find that we have jurisdiction to review the district court’s
order finding that Jerald was unjustly enriched. On that issue,
we find the district court erred and therefore reverse, and
remand with directions to enter judgment in Jerald’s favor.
Appeal dismissed in part, and in
part reversed and remanded
with directions. | 01-04-2023 | 11-18-2022 |
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11/18/2022 09:05 AM CST
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF SCALETTA
Cite as 312 Neb. 953
In re Estate of Filadelfo (Jack) Scaletta, deceased.
Carl Scaletta, Jr., et al., appellees,
v. Carl Scaletta, Sr., appellant.
___ N.W.2d ___
Filed November 18, 2022. No. S-22-115.
1. Jurisdiction. The question of jurisdiction is a question of law.
2. Judgments: Appeal and Error. An appellate court independently
reviews questions of law decided by a lower court.
3. Jurisdiction: Appeal and Error. It is the power and duty of an appel-
late court to determine whether it has jurisdiction over the matter before
it, irrespective of whether the issue is raised by the parties.
4. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction of an appeal, there must be a final judgment or
final order entered by the tribunal from which the appeal is taken.
5. Final Orders: Words and Phrases. To be final, an order must dispose
of the whole merits of the case. When no further action of the court is
required to dispose of a pending cause, the order is final.
Petition for further review from the Court of Appeals,
Pirtle, Chief Judge, and Riedmann and Welch, Judges, on
appeal thereto from the County Court for Douglas County,
Jeffrey L. Marcuzzo, County Court Judge. Judgment of
Court of Appeals affirmed.
M. H. Weinberg, of Weinberg & Weinberg, P.C., for appellant.
Dennis P. Lee, of Lee Law Office, for appellee Carl
Scaletta, Jr.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
- 954 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF SCALETTA
Cite as 312 Neb. 953
Miller-Lerman, J.
NATURE OF CASE
Carl Scaletta, Sr. (Carl Sr.), appealed to the Nebraska Court
of Appeals from the order of the Douglas County Court that
ruled on his petition for trust administration. The Court of
Appeals dismissed the appeal for lack of jurisdiction pursuant
to Neb. Ct. R. App. P. § 2-107(A)(1) (rev. 2022). We granted
Carl Sr.’s petition for further review. Based on our reasoning
set forth below, we agree with the Court of Appeals’ conclu-
sion that the order from which Carl Sr. attempts to appeal was
not a final order, and we therefore affirm the dismissal of the
appeal for lack of jurisdiction.
STATEMENT OF FACTS
Filadelfo Scaletta, also known as Jack Scaletta (Jack), died
in February 2021. Jack left a will that named his nephew,
Carl Scaletta, Jr. (Carl Jr.), as personal representative. Letters
of personal representative evidencing Carl Jr.’s appointment
in the Douglas County probate division, estate case No.
PR21-1539, are found in the record. The provisions of the
will transferred most of Jack’s assets to the Filadelfo (Jack)
Scaletta Revocable Living Family Trust (the Trust). Although
created on the same day as the will, June 26, 2020, the Trust’s
existence was separate from the will. Jack named Carl Jr. as
trustee of the Trust, and he also named Carl Jr. as his agent
pursuant to a power of attorney. Among the beneficiaries of
the Trust were Carl Jr. and Carl Sr., who is Carl Jr.’s father
and Jack’s brother.
On September 7, 2021, Carl Sr. filed a “Petition for Trust
Administration Proceeding” with regard to the Trust. Carl
Sr. stated that among the reasons he wished to initiate a trust
administration action was the fact that after Jack’s death, Carl
Jr. had transferred to the Trust two bank accounts that Carl Sr.
asserted were designated as payable on death (POD) to him.
Carl Sr. further stated that he was “requesting records and
an accounting with regard to the handling of as[s]ets placed
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IN RE ESTATE OF SCALETTA
Cite as 312 Neb. 953
in the FILADELFO (JACK) SCALETTA TRUST and then
handled thereafter [and Carl Sr. was] requesting a declara-
tory judgment as to the proper disposition of assets pursuant
to Neb. Rev. Stat. [§] 25-21,152 [(Reissue 2016)].” We note
that the petition for trust administration was filed in the estate
case, No. PR21-1539.
In his response to Carl Sr.’s petition, Carl Jr. conceded
that the two accounts should have passed to Carl Sr. based
on the POD designation and should not have been transferred
to the Trust after Jack’s death. Carl Jr. therefore requested that
the court grant the relief requested by Carl Sr. with respect
to those two accounts. But Carl Jr. stated in the response
that after Carl Sr. had filed his petition, Carl Sr. had identi-
fied four additional accounts that Carl Sr. asserted Carl Jr.
had improperly transferred to the Trust before Jack died.
Carl Jr. asserted that the transfers prior to Jack’s death were
authorized and that therefore, the POD designations on those
accounts were no longer in effect on the date Jack died. Carl
Jr. requested that the court deny Carl Sr.’s requested relief
with respect to all accounts other than the two that were trans-
ferred after Jack’s death.
The county court held a hearing on the issues raised by the
pleadings regarding, inter alia, the various bank accounts trans-
ferred to the Trust before and after Jack’s death. On February
18, 2022, the county court filed an order on what it described
as Carl Sr.’s “Petition for Trust Administration and Request
for Declaratory Judgment.” The court first addressed how the
property of the Trust was to be divided among the benefici
aries under the terms of the Trust. Certain specified real prop-
erty was to be divided between Carl Sr. and Carl Jr., and the
remaining unspecified property was to be divided among three
beneficiaries with Carl Jr. receiving 50 percent and Jack’s sis-
ter and Carl Sr. each receiving 25 percent.
The court then addressed the four bank accounts that had
been transferred to the Trust in June and July 2020, prior
to Jack’s death. The court determined that because those
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IN RE ESTATE OF SCALETTA
Cite as 312 Neb. 953
accounts had been transferred prior to Jack’s death, the POD
designations did not prevent the accounts from being properly
transferred to the Trust. The county court further determined
that the transfers were properly made by Carl Jr. pursuant
to his authority under the power of attorney and received as
trustee of the Trust and that therefore, those assets should
remain in the Trust and be divided among the beneficiaries
according to the provisions of the Trust.
The court then addressed the two bank accounts that had
been transferred to the Trust in March 2021, after Jack’s
death. The court found in its order that each account had been
transferred to the Trust by Carl Jr. The court noted that each
account named Carl Sr. as the POD designee, and the court
stated that at the moment of Jack’s death, the POD designa-
tions went into effect and the accounts passed to Carl Sr. The
court determined that the transfer of those two accounts to the
Trust after Jack’s death was “without authorization or proper
authority” and that therefore, the two accounts should be dis-
tributed to Carl Sr.
Based on these findings and determinations, the county
court ordered that Carl Sr.’s motion for declaratory judg-
ment with regard to the four accounts transferred prior to
Jack’s death was denied and that the accounts were properly
assets of the Trust. The county court further ordered that Carl
Sr.’s motion for declaratory judgment with regard to the two
accounts transferred after Jack’s death was granted, and the
court ordered Carl Jr. as trustee to distribute the balance of
the accounts plus interest from the Trust to Carl Sr. The county
court finally ordered that “the Trustee of the Revocable Living
Family Trust, Carl . . . Jr., is to provide a complete Accounting
to all interested parties no later than March 1, 2022, unless
previously submitted and/or accepted by the parties.”
Carl Sr. filed a notice of appeal on February 22, 2022.
Before Carl Sr. filed a brief of appellant, the Court of Appeals
dismissed the appeal with the following minute entry: “Appeal
dismissed. See Neb. Ct. R. App. P. § 2-107(A)(1). County
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IN RE ESTATE OF SCALETTA
Cite as 312 Neb. 953
court’s treatment of account transfers made prior to decedent’s
death can be effectively considered on an appeal from the final
judgment. See In re Estate of Rose, 273 Neb. 490, 730 N.W.2d
391 (2007).” The Court of Appeals denied Carl Sr.’s motion
for rehearing.
We granted Carl Sr.’s petition for further review.
ASSIGNMENT OF ERROR
Carl Sr. claims that the Court of Appeals erred when it deter-
mined that the county court’s order was not a final, appealable
order and when it therefore dismissed his appeal for lack of
jurisdiction.
STANDARDS OF REVIEW
[1,2] The question of jurisdiction is a question of law. Tegra
Corp. v. Boeshart, 311 Neb. 783, 976 N.W.2d 165 (2022). An
appellate court independently reviews questions of law decided
by a lower court. Heist v. Nebraska Dept. of Corr. Servs., ante
p. 480, 979 N.W.2d 772 (2022).
ANALYSIS
[3] It is the power and duty of an appellate court to deter-
mine whether it has jurisdiction over the matter before it,
irrespective of whether the issue is raised by the parties. Tegra
Corp. v. Boeshart, supra. Therefore, it was appropriate for the
Court of Appeals to consider whether the county court’s order
was final and whether it had jurisdiction over this appeal. We
independently review the Court of Appeals’ determination that
it lacked appellate jurisdiction.
As the first step in our analysis, it is necessary to clarify
the nature of the proceeding that was being addressed in the
county court’s February 18, 2022, order that Carl Sr. seeks
to appeal. The Court of Appeals’ minute entry cites to a case
involving a decedent’s estate proceeding, and in his argument
in opposition to Carl Sr.’s motion for rehearing in the Court of
Appeals, Carl Jr. relied on cases involving decedents’ estates.
However, in his brief in support of further review, Carl Sr.
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IN RE ESTATE OF SCALETTA
Cite as 312 Neb. 953
relies on cases involving administration of trusts, and he argues
in part that the county court’s order that he seeks to appeal was
not preliminary to or “interrelated to a subsequent” determina-
tion of the estate, brief for appellant in support of petition for
further review at 6, notwithstanding the fact that the caption
on the order sought to be appealed states that the order is “In
the Matter of the Estate of Filadelfo (Jack) Scaletta, deceased.”
Whether the county court’s order is related to administration of
the Trust or whether it is a part of Jack’s estate proceeding is
relevant to our analysis of whether the order is a final, appeal-
able order.
Carl Sr. filed a petition for trust administration proceeding
pursuant to Neb. Rev. Stat. § 30-3812 (Reissue 2016), which
provides:
(a) The court may intervene in the administration of a
trust to the extent its jurisdiction is invoked by an inter-
ested person or as provided by law.
(b) A trust is not subject to continuing judicial super
vision unless ordered by the court.
(c) A judicial proceeding involving a trust may relate
to any matter involving the trust’s administration, includ-
ing a request for instructions and an action to declare
rights.
On its face, Carl Sr.’s petition sought, inter alia, a declaration
of rights under § 30-3812(c).
We further note that Neb. Rev. Stat. § 30-3814 (Reissue
2016) provides in relevant part that “the county court has
jurisdiction over all subject matter relating to trusts”; that
the “county court has full power to make orders, judgments,
and decrees and take all other action necessary and proper to
administer justice in the matters which come before it”; and
that “[e]ach proceeding before the court is independent of
any other proceeding involving the same trust.” In his peti-
tion, Carl Sr. stated that he was “requesting records and an
accounting with regard to the handling of as[s]ets placed in”
the Trust and that he was also seeking “a declaratory judgment
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IN RE ESTATE OF SCALETTA
Cite as 312 Neb. 953
as to the proper disposition of assets” that were placed in the
Trust. We agree with Carl Sr. that the matter initiated by Carl
Sr. and now before us involves the Trust.
In the February 18, 2022, order, the county court stated that
it was ruling on Carl Sr.’s petition for trust administration,
and it specifically limited its ruling to issues that involved
the Trust. The court found that the actions taken by Carl Jr. in
transferring assets to the Trust were taken by him as the trustee
of the Trust. The county court ruled on requests for declara-
tory judgments regarding the propriety of those transfers made
by Carl Jr. as trustee. The county court further ordered Carl
Jr. as “the Trustee of the . . . Trust” to submit an accounting
and provide an accounting to interested parties. We determine,
therefore, that the order Carl Sr. seeks to appeal involved a
county court ruling in a trust action regarding the Trust and
that the order was not a ruling on matters of the estate.
In the process of this case, some confusion may have been
created in the minds of the courts and the parties, because, as
we have noted, although the petition filed by Carl Sr. was titled
in the name of the Trust, the matter was assigned the estate
proceeding’s case number. In this regard, as we have noted, the
county court’s February 18, 2022, order ruling on the petition
for trust administration was captioned in the name of Jack’s
estate rather than the name of the Trust.
We take this opportunity to warn against mingling separate
trust actions with ongoing estate proceedings. Proceedings
in a decedent’s estate are governed by statutes that are part
of the Probate Code. See Neb. Rev. Stat. § 30-2201 (Cum.
Supp. 2020) (setting forth statutory sections that are part of
Nebraska Probate Code). By contrast, trusts are governed by
the Nebraska Uniform Trust Code, Neb. Rev. Stat. §§ 30-3801
through 30-38,110 (Reissue 2016 & Cum. Supp. 2020), and
in particular, trust administration actions are authorized by
§ 30-3812. Section 30-2201 does not designate the Nebraska
Uniform Trust Code as being part of the Nebraska Probate
Code. Trust actions and estate proceedings are currently
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312 Nebraska Reports
IN RE ESTATE OF SCALETTA
Cite as 312 Neb. 953
governed by separate statutory sections. Separate statutory
paths are consistent with the historical treatment of trusts and
estates. Historically, matters related to trusts were considered
part of a court’s inherent chancery jurisdiction rather than a
court’s probate jurisdiction. See In re Estate of Frerich, 120
Neb. 462, 233 N.W. 456 (1930). In the present case, although
issues related to the Trust might have an effect on Jack’s estate,
the instant trust administration involved the Trust rather than
Jack’s estate, and it was an action under the Nebraska Uniform
Trust Code rather than an estate proceeding under the Nebraska
Probate Code.
Because the order ruled on a trust administration matter,
an appeal of the order is subject to § 30-3821, which pro-
vides, “Appellate review under the Nebraska Uniform Trust
Code shall be governed by section 30-1601.” Neb. Rev. Stat.
§ 30-1601(1) (Cum. Supp. 2020) provides in relevant part
that “in all matters in county court arising under the Nebraska
Uniform Trust Code, . . . appeals may be taken to the Court of
Appeals in the same manner as an appeal from district court to
the Court of Appeals.” We read § 30-1601(1) as incorporating
the rules of appealability in civil matters, including Neb. Rev.
Stat. § 25-1902 (Cum. Supp. 2020).
[4,5] We have recognized in a case involving a trust that for
an appellate court to acquire jurisdiction of an appeal, there
must be a final judgment or final order entered by the tribunal
from which the appeal is taken. In re Margaret L. Matthews
Revocable Trust, ante p. 381, 979 N.W.2d 259 (2022). To be
final, an order must dispose of the whole merits of the case. Id.
When no further action of the court is required to dispose of a
pending cause, the order is final. Id.
In this case, Carl Sr. filed a petition in the county court in
which he sought two things: a declaratory judgment regard-
ing the handling of assets transferred into the Trust and an
accounting of the Trust. The county court entered an order in
which it denied a declaratory judgment with respect to certain
accounts, granted a declaratory judgment with respect to other
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF SCALETTA
Cite as 312 Neb. 953
accounts, and ordered distribution of those other accounts to
Carl Sr. The county court also ordered that in the absence of
agreement, Carl Jr., as trustee of the Trust, submit a complete
accounting. We read this order as reflecting the county court’s
expectation that further action was required to completely dis-
pose of Carl Sr.’s petition.
We determine that the order did not wholly dispose of the
request for a Trust accounting because until that accounting
is completed, the trust administration proceeding is not com-
pleted and the order is not yet final. See § 25-1902 (regarding
appealability of substantial right in special proceeding).
The Court of Appeals therefore did not err when it con-
cluded that it lacked jurisdiction and dismissed this appeal.
CONCLUSION
Based on the reasoning set forth above, we conclude that
the county court’s February 18, 2022, ruling was not a final
order in the trust administration proceeding and that therefore,
the Court of Appeals lacked jurisdiction of this appeal. We
affirm the order of the Court of Appeals that dismissed the
appeal for lack of jurisdiction.
Affirmed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487186/ | Nebraska Supreme Court Online Library
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11/18/2022 09:05 AM CST
- 925 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
CHILDS V. FRAKES
Cite as 312 Neb. 925
Moses Childs, appellant and
cross-appellee, v. Scott Frakes,
appellee and cross-appellant.
___ N.W.2d ___
Filed November 18, 2022. No. S-21-878.
1. Habeas Corpus: Appeal and Error. On appeal of a habeas corpus peti-
tion, an appellate court reviews the trial court’s factual findings for clear
error and its conclusions of law de novo.
2. Statutes: Appeal and Error. The meaning and interpretation of statutes
are questions of law for which an appellate court has an obligation to
reach an independent conclusion irrespective of the decision made by
the court below.
3. Limitations of Actions: Dismissal and Nonsuit. Neb. Rev. Stat.
§ 25-217 (Cum. Supp. 2020) is self-executing, so that an action is dis-
missed by operation of law, without any action by either the defendant
or the court, as to any defendant who is named in the civil action and
not served with process within the time set forth in the statute.
4. Limitations of Actions: Dismissal and Nonsuit: Jurisdiction. After
dismissal of a civil action by operation of law under Neb. Rev. Stat.
§ 25-217 (Cum. Supp. 2020), there is no longer an action pending and
the district court has no jurisdiction to make any further orders except
to formalize the dismissal.
5. Habeas Corpus: Courts. Habeas corpus proceedings are not like ordi-
nary civil actions, and courts should follow the traditional procedure
illustrated by the habeas corpus statutes rather than make up their own
procedure.
6. Habeas Corpus. The writ of habeas corpus derives from common law
and is a special civil proceeding providing a summary remedy to per-
sons illegally detained.
7. Constitutional Law: Habeas Corpus. The Nebraska Constitution pro-
vides for the remedy of habeas corpus, while the procedure for the writ
is governed by statute.
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CHILDS V. FRAKES
Cite as 312 Neb. 925
8. Habeas Corpus. Habeas corpus proceedings are not adversarial civil
actions and are not in a technical sense a suit between the applicant and
the respondent officer.
9. Habeas Corpus: Rules of the Supreme Court: Pleadings. The plead-
ing rules governing civil actions have no application to habeas corpus
proceedings.
10. Habeas Corpus. The statutory service provisions governing civil actions
have no application in habeas corpus proceedings.
11. Appeal and Error. A proper result will not be reversed merely because
it was reached for the wrong reason.
12. Habeas Corpus. A writ of habeas corpus challenges and tests the
legality of a person’s detention, imprisonment, or custodial deprivation
of liberty.
13. ____. In Nebraska, habeas corpus is quite limited in comparison to the
scope of the writ in federal courts.
14. Criminal Law: Habeas Corpus. Eligibility for a writ of habeas corpus
is governed by the criteria set forth in Neb. Rev. Stat. § 29-2801 (Cum.
Supp. 2020), which explicitly excludes from the scope of habeas cor-
pus persons convicted of some crime or offense for which they stand
committed.
15. Habeas Corpus: Prisoners. Under Nebraska law, in the case of a pris-
oner held pursuant to a judgment of conviction, habeas corpus is avail-
able as a remedy only upon a showing that the judgment, sentence, and
commitment are void.
16. Habeas Corpus: Judgments: Sentences. The writ of habeas corpus
will not lie upon the ground of mere errors and irregularities in the judg-
ment or sentence rendering it not void, but only voidable.
17. Judgments: Collateral Attack. A judgment that is not void, even if
erroneous, cannot be collaterally attacked.
18. Habeas Corpus: Jurisdiction: Sentences. A writ of habeas corpus will
not lie to discharge a person from a sentence of penal servitude where
the court imposing the sentence had jurisdiction of the offense and the
person of the defendant, and the sentence was within the power of the
court to impose.
19. Habeas Corpus. A writ of habeas corpus is not a writ for correction of
errors, and its use will not be permitted for that purpose.
20. Habeas Corpus: Sentences. The regularity of the proceedings lead-
ing up to the sentence in a criminal case cannot be inquired into on an
application for writ of habeas corpus, for that matter is available only
in a direct proceeding.
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312 Nebraska Reports
CHILDS V. FRAKES
Cite as 312 Neb. 925
Appeal from the District Court for Douglas County: W.
Russell Bowie III, Judge. Affirmed.
Moses Childs, pro se.
Douglas J. Peterson, Attorney General, and James A.
Campbell, Solicitor General, for appellee.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Stacy, J.
In this appeal, we consider whether the service and auto-
matic dismissal provisions of Neb. Rev. Stat. § 25-217 (Cum.
Supp. 2020) apply to habeas corpus proceedings. We hold that
§ 25-217 has no application to habeas corpus proceedings,
and consequently, the district court erred when it dismissed
a petition for writ of habeas corpus pursuant to that statute.
However, because our de novo review shows the petition did
not state a cognizable claim for habeas relief, we affirm the
judgment of dismissal, albeit on a different ground.
BACKGROUND
In 2017, the State filed an information against Moses Childs
in the district court for Lancaster County, Nebraska, charg-
ing him with one count of first degree sexual assault. Childs
eventually pled no contest to a reduced charge of attempted
first degree sexual assault and was sentenced to a term of
imprisonment. Childs’ conviction and sentence were affirmed
on direct appeal. 1
On March 24, 2021, Childs filed a petition for writ of habeas
corpus in the district court for Douglas County, Nebraska.
His pro se petition alleged he was being confined in Douglas
1
State v. Childs, No. A-18-1208, 2019 WL 6873068 (Neb. App. Dec. 17,
2019) (selected for posting to court website).
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CHILDS V. FRAKES
Cite as 312 Neb. 925
County pursuant to a conviction and sentence that was void
because (1) he had been denied trial counsel of his choice;
(2) his plea was not entered knowingly, voluntarily, and intel-
ligently; (3) the prosecutor lacked “legal standing” to invoke
the court’s jurisdiction; and (4) his right to remain silent was
violated when the sentencing court required him to participate
in a presentence investigation.
The record on appeal shows no activity in the habeas pro-
ceeding from the date of its filing until September 23, 2021,
when the district court entered an order stating: “Pursuant to
Nebraska Revised Statute 25-217, this action stands dismissed
without prejudice.” Childs timely appealed from the order of
dismissal, and we moved the appeal to our docket to address
an issue of first impression: whether the provisions of § 25-217
apply to habeas corpus proceedings.
ASSIGNMENTS OF ERROR
Childs assigns, restated, that the district court erred in dis-
missing his petition for writ of habeas corpus because (1) the
requirements of § 25-217 do not apply in habeas proceedings
and (2) the allegations of the habeas petition entitled him to
an evidentiary hearing.
The State has cross-appealed, assigning the district court
erred by failing to dismiss Childs’ habeas petition on the
ground its allegations did not entitle him to habeas relief.
STANDARD OF REVIEW
[1] On appeal of a habeas corpus petition, an appellate court
reviews the trial court’s factual findings for clear error and its
conclusions of law de novo. 2
[2] The meaning and interpretation of statutes are questions
of law for which an appellate court has an obligation to reach
2
Buggs v. Frakes, 298 Neb. 432, 904 N.W.2d 664 (2017).
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CHILDS V. FRAKES
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an independent conclusion irrespective of the decision made by
the court below. 3
ANALYSIS
In their appellate briefing, both Childs and the State take
the position that the service and automatic dismissal provi-
sions of § 25-217 do not apply to habeas corpus proceedings.
We agree.
Section 25-217 addresses the statutory timeline for perfect-
ing service on defendants in civil actions, and it provides in
relevant part:
(1) An action is commenced on the day the complaint
is filed with the court.
(2) Each defendant in the action must be properly served
within one hundred eighty days of the commencement of
the action. . . .
(3) If any defendant is not properly served within the
time specified by subsection (2) of this section then the
action against that defendant is dismissed by operation
of law. The dismissal is without prejudice and becomes
effective on the day after the time for service expires.
[3,4] We have often explained that Ҥ 25-217 is self-
executing, so that an action is dismissed by operation of law,
without any action by either the defendant or the court, as
to any defendant who is named in the [civil] action and not
served with process within the time set forth in the statute.” 4
After dismissal of a civil action by operation of law under
§ 25-217, there is no longer an action pending and the district
3
In re App. No. P-12.32 of Black Hills Neb. Gas, 311 Neb. 813, 976 N.W.2d
152 (2022).
4
E.g., Carrizales v. Creighton St. Joseph, ante p. 296, 304, 979 N.W.2d
81, 89 (2022); Davis v. Choctaw Constr., 280 Neb. 714, 789 N.W.2d 698
(2010).
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Cite as 312 Neb. 925
court has no jurisdiction to make any further orders except to
formalize the dismissal. 5
§ 25-217 Does Not Apply
to Habeas Corpus
[5] To the extent the district court here concluded that
§ 25-217 applies in habeas corpus proceedings, it erred. We
have cautioned trial courts that habeas corpus proceedings are
not like ordinary civil actions, and courts should “follow the
traditional procedure illustrated by the habeas corpus statutes
rather than make up their own procedure.” 6
[6,7] The writ of habeas corpus derives from common
law, and we have described it as “a special civil proceeding
providing a summary remedy to persons illegally detained.” 7
The Nebraska Constitution provides for the remedy of habeas
corpus, 8 while the procedure for the writ is governed by
statute. 9
The statutory procedure for habeas corpus proceedings is set
out in Neb. Rev. Stat. §§ 29-2801 through 29-2824 (Reissue
2016 & Cum. Supp. 2020). Under those procedures, the first
step is for the petitioner or relator, or someone on his or her
behalf, to “make application” to the court. 10 Accompanying
the application should be “a copy of the commitment or
5
See id.
6
Maria T. v. Jeremy S., 300 Neb. 563, 573, 915 N.W.2d 441, 450 (2018).
7
Id. at 570, 915 N.W.2d at 448. Accord, In re Application of Tail, Tail v.
Olson, 144 Neb. 820, 822, 14 N.W.2d 840, 841 (1944) (“[h]abeas corpus
. . . is a special proceeding, civil in character[,] providing a summary
remedy open to persons illegally detained”).
8
Neb. Const. art. I, § 8 (“[t]he privilege of the writ of habeas corpus shall
not be suspended”).
9
Maria T., supra note 6.
10
§ 29-2801.
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Cite as 312 Neb. 925
cause of detention of such person” 11 or, if the person claims
to be imprisoned or detained without any legal authority, the
application must “mak[e] the same appear to such judge, by
oath or affirmation.” 12 It has long been the rule that a peti-
tion for writ of habeas corpus should be filed in the county
where the petitioner or relator is confined, and although our
older opinions characterized this as a jurisdictional issue, our
more recent opinions clarify that the issue implicates venue,
not jurisdiction. 13
Once an application for writ of habeas corpus is filed,
the next procedural step requires the court to determine, sua
sponte and based on the allegations of the application, if the
writ should issue. 14 If the application or petition for writ of
habeas corpus sets forth facts which, if true, would entitle
the petitioner to discharge, then the writ is a matter of right
and the petitioner should be produced and a hearing held
thereon to determine the question of fact presented. 15 But if
the application or petition alleges mere conclusions of law, or
if the facts alleged in the application or petition do not show
the petitioner is entitled to the relief of habeas corpus, “then
the writ will be denied for it would be useless to go through
the procedure of granting the writ and having the party
brought before the court merely to be remanded back to the
custody out of which he [or she] seeks to be discharged.” 16
11
Id. See, also, Gallion v. Zinn, 236 Neb. 98, 459 N.W.2d 214 (1990) (hold
ing when petition fails to present statutorily required copy of commitment
and detention order, habeas relief may be denied).
12
§ 29-2801.
13
See, O’Neal v. State, 290 Neb. 943, 863 N.W.2d 162 (2015); Anderson v.
Houston, 274 Neb. 916, 744 N.W.2d 410 (2008).
14
See Maria T., supra note 6.
15
See, id.; Evans v. Frakes, 293 Neb. 253, 876 N.W.2d 626 (2016); In re
Application of Tail, Tail v. Olson, 145 Neb. 268, 16 N.W.2d 161 (1944).
16
In re Application of Tail, Tail v. Olson, supra note 15, 145 Neb. at 272, 16
N.W.2d at 164.
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CHILDS V. FRAKES
Cite as 312 Neb. 925
When a writ of habeas corpus is issued, service is governed
by § 29-2816, which states simply that “[s]uch writ may be
served in any county by any sheriff of the same or of any
other county.”
When a court issues a writ of habeas corpus, it then becomes
“the duty of the officer or person to whom such writ shall
be directed to convey the person or persons so imprisoned
or detained and named in such writ, before the judge . . . on
the day specified in such writ, and to make due return of the
writ.” 17 Once a writ is issued, it must be obeyed, or resistance
thereto made in the regular manner. 18 In every case in which
a writ has been issued, the person to whom it is directed must
sign and file a “return” 19 that plainly and unequivocally states
whether he or she has the petitioner or relator under his or her
“custody or power or under restraint” 20 and, if so, sets forth the
authority for such custody, power, or restraint. 21 The habeas
statutes do not describe by what means, if any, the respondent
may challenge the sufficiency of the application or petition for
writ of habeas corpus, but this court has said that before filing
a response to the writ, the respondent “may challenge the suf-
ficiency of the statements in the application of the relator by
filing a motion to quash or to ‘dissolve’ the writ.” 22 We have
recognized that this procedure is “consistent with traditional
common-law habeas corpus procedure.” 23
[8-10] As the foregoing discussion illustrates, the statu-
tory and traditional common-law procedures governing habeas
17
§ 29-2802. See, also, §§ 29-2816 through 29-2819 (governing contents
and verification of return).
18
See Maria T., supra note 6.
19
See §§ 29-2817 and 29-2818.
20
§ 29-2817.
21
See id. See, also, Maria T., supra note 6.
22
Maria T., supra note 6, 300 Neb. at 572, 915 N.W.2d at 449.
23
Id.
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corpus proceedings in Nebraska have very little in common
with the statutory procedure governing civil actions. 24 Habeas
corpus proceedings are not adversarial civil actions and “are
not in a technical sense a suit between the applicant and the
[respondent] officer.” 25 We have been clear that the pleading
rules governing civil actions have no application to habeas cor-
pus proceedings, 26 and we now similarly hold that the statutory
service provisions governing civil actions have no application
in habeas corpus proceedings. Simply put, under the habeas
corpus procedure, the court issues the writ where appropriate
and there is no requirement that the petitioner must perfect
service on anyone. 27 The district court thus erred as a matter of
law when it applied the service and automatic dismissal provi-
sions of § 25-217 to Childs’ petition for writ of habeas corpus.
Moreover, the erroneous application of § 25-217 resulted in
an unnecessary delay of the court’s duty to sua sponte review
the petition.
[11] But our analysis does not end there, because a proper
result will not be reversed merely because it was reached for
the wrong reason. 28 We find merit in the State’s cross-appeal.
Petition Does Not Support
Habeas Corpus Relief
Although the district court erred in relying on § 25-217 to
dismiss Childs’ habeas petition, our de novo review shows that
24
Accord id. (holding habeas corpus proceedings are not governed by
Nebraska Court Rules of Pleading in Civil Cases).
25
In re Application of Tail, Tail v. Olson, supra note 7, 144 Neb. at 822, 14
N.W.2d at 841.
26
See Maria T., supra note 6.
27
See In re Application of Tail, Tail v. Olson, supra note 7, 144 Neb. at 823,
14 N.W.2d at 842 (“[w]e are unable to find any provision in our [habeas
corpus] statutes for service upon respondent of any other process except
the writ”).
28
See O’Neal, supra note 13.
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dismissal was nevertheless proper on a different ground: Childs
has failed to allege facts which, if true, would entitle him to
habeas relief.
[12-17] A writ of habeas corpus challenges and tests the
legality of a person’s detention, imprisonment, or custodial
deprivation of liberty. 29 In Nebraska, habeas corpus is quite
limited in comparison to the scope of the writ in federal
courts. 30 Eligibility for the writ is governed by the criteria set
forth in § 29-2801, and under that statute, “persons convicted
of some crime or offense for which they stand committed”
are expressly excluded. 31 As such, under Nebraska law, in the
case of a prisoner held pursuant to a judgment of conviction,
habeas corpus is available as a remedy only upon a showing
that the judgment, sentence, and commitment are void. 32 “The
writ will not lie upon the ground of mere errors and irregulari-
ties in the judgment or sentence rendering it not void, but only
voidable.” 33 Stated differently, a judgment that is not void,
even if erroneous, cannot be collaterally attacked. 34
[18-20] Thus, a writ of habeas corpus will not lie to dis-
charge a person from a sentence of penal servitude where the
court imposing the sentence had jurisdiction of the offense and
the person of the defendant, and the sentence was within the
power of the court to impose. 35 A writ of habeas corpus is not
a writ for correction of errors, and its use will not be permitted
for that purpose. 36 “‘[T]he regularity of the proceedings lead-
ing up to the sentence in a criminal case cannot be inquired
29
Tyrrell v. Frakes, 309 Neb. 85, 958 N.W.2d 673 (2021).
30
Id.
31
Sanders v. Frakes, 295 Neb. 374, 888 N.W.2d 514 (2016).
32
Tyrrell, supra note 29.
33
Id., 309 Neb. at 94, 958 N.W.2d at 681.
34
Id.
35
Peterson v. Houston, 284 Neb. 861, 824 N.W.2d 26 (2012).
36
Id.
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into on an application for writ of habeas corpus, for that matter
is available only in a direct proceeding.’” 37
With these principles in mind, we turn to the four grounds
on which Childs alleges he is entitled to habeas relief. First, he
alleged his primary attorney appeared at only a few hearings,
while his secondary attorney appeared at more. Childs char-
acterizes this as denying him counsel of his choice, which he
argues resulted in structural error that supports “reversal of his
conviction.” But such a claim does not entitle him to habeas
relief because, even if true, it would not render the judgment,
sentence, and commitment void.
Second, Childs alleged his plea was not knowingly, volun-
tarily, and intelligently entered because he received ineffec-
tive assistance of counsel. But claims of an invalid plea or
ineffective assistance of counsel do not warrant habeas relief,
because they do not affect the jurisdiction of the trial court or
the authority of the court to impose the sentence given. 38 Thus,
even if true, these allegations would not render the judgment,
sentence, and conviction void.
Third, Childs alleged the prosecutor had no personal knowl-
edge of the factual basis provided to the court during the plea
hearing and thus “had no legal standing upon which to invoke
the [trial] court’s jurisdiction.” But under Nebraska law, it is
the duty of the county attorney, when in possession of
sufficient evidence to warrant the belief that a person is
guilty and can be convicted of a felony or misdemeanor,
to prepare, sign, verify, and file the proper complaint
against such person and to appear in the several courts
of the county and prosecute the appropriate criminal pro-
ceeding on behalf of the state and county. 39
37
Id., 284 Neb. at 867, 824 N.W.2d at 33.
38
See, Gonzalez v. Gage, 290 Neb. 671, 861 N.W.2d 457 (2015); Peterson,
supra note 35; Rehbein v. Clarke, 257 Neb. 406, 598 N.W.2d 39 (1999).
39
Neb. Rev. Stat. § 23-1201 (Cum. Supp. 2020).
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There is nothing improper about a prosecutor’s reciting the
factual basis for the charged crime during a plea hearing.
This claim has no legal merit and does not entitle Childs to
habeas relief.
And fourth, Childs alleged he was compelled to participate
in a presentence investigation “without a knowing and intelli-
gent waiver of his right to remain silent.” This allegation chal-
lenges the regularity of the proceedings leading up to Childs’
sentence and is not a basis for habeas relief. 40
Because none of the allegations in Childs’ petition set forth
facts which, if true, would entitle him to habeas relief, it was
proper to dismiss the petition for writ of habeas corpus. 41
CONCLUSION
Our de novo review demonstrates that the decision of the
district court to dismiss Childs’ petition for writ of habeas cor-
pus was ultimately correct, even though the district court’s rea-
son for ordering dismissal was erroneous. We therefore affirm
the dismissal.
Affirmed.
Miller-Lerman, J., participating on briefs.
40
See Peterson, supra note 35.
41
See Maria T., supra note 6. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487180/ | Case: 22-165 Document: 4 Page: 1 Filed: 11/18/2022
NOTE: This order is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
In re: IRINA COLLIER,
Petitioner
______________________
2022-165
______________________
On Petition for Writ of Mandamus to the United States
Court of Appeals for the Federal Circuit.
______________________
ON PETITION
______________________
PER CURIAM.
ORDER
Irina Collier submits a filing entitled “writ of manda-
mus and the notice of appeal.” ECF No. 2 at 1. 1 Ms. Collier
1 To the extent that Ms. Collier also intended to sub-
mit a complaint of judicial misconduct against justices of
the Supreme Court of the United States, this court lacks
jurisdiction to review such a complaint. See 28 U.S.C. § 351
(providing that a complaint may be filed against a circuit,
district, bankruptcy, or magistrate judge, but not including
Supreme Court justices under the definition of the term
“judge” covered by the Judicial Conduct and Disability
Act).
Case: 22-165 Document: 4 Page: 2 Filed: 11/18/2022
2 IN RE: COLLIER
has not responded to the court’s order of September 14,
2022, directing her to inform the court as to whether this
matter should remain under seal.
In May 2022, this court dismissed a prior appeal from
Ms. Collier for lack of jurisdiction and noted she had an
appeal pending before the United States Court of Appeals
for the Ninth Circuit seeking review of the same decision.
Collier v. Univ. of Cal., Berkeley, No. 2022-1442, 2022 WL
1676223, at *1 (Fed. Cir. May 26, 2022). In June 2022, this
court also dismissed Ms. Collier’s petitions for issuance of
an emergency writ in connection with the same case. Col-
lier v. Univ. of Cal., Berkeley, No. 2022-1442 (Fed. Cir. June
29, 2022), ECF No. 18 at 2. It is unclear what relief Ms.
Collier is seeking in the current petition, but she has iden-
tified her Ninth Circuit appeal; “case 18FL000889,” which
appears to be a state court matter; and a motion docketed
as No. 21M88 that she filed at the Supreme Court. 2
“The All Writs Act is not an independent basis of juris-
diction, and the petitioner must initially show that the ac-
tion sought to be corrected by mandamus is within this
court’s statutorily defined subject matter jurisdiction.”
Baker Perkins, Inc. v. Werner & Pfleiderer Corp., 710 F.2d
1561, 1565 (Fed. Cir. 1983). This court’s jurisdiction is lim-
ited and does not include jurisdiction to review the deci-
sions of other appellate courts, state courts, or the Supreme
Court. We therefore dismiss her petition. We also see no
basis for the docket of this matter to remain under seal.
Accordingly,
2 The Supreme Court granted Ms. Collier’s motion
for leave to file a petition for a writ of certiorari from an-
other Ninth Circuit appeal and ultimately denied her peti-
tion in May 2022.
Case: 22-165 Document: 4 Page: 3 Filed: 11/18/2022
IN RE: COLLIER 3
IT IS ORDERED THAT:
(1) The petition is dismissed.
(2) The court’s docket in this matter will no longer be
sealed, but Ms. Collier’s petition, ECF No. 2, will remain
sealed.
FOR THE COURT
November 18, 2022 /s/ Peter R. Marksteiner
Date Peter R. Marksteiner
Clerk of Court | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487193/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/18/2022 09:05 AM CST
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312 Nebraska Reports
LANCASTER CTY. BD. OF EQUAL. V. MOSER
Cite as 312 Neb. 757
Lancaster County Board of Equalization,
appellant, v. Brad Moser and
Mary Moser, appellees.
___ N.W.2d ___
Filed October 28, 2022. No. S-21-774.
1. Taxation: Judgments: Appeal and Error. Appellate courts review
decisions rendered by the Tax Equalization and Review Commission for
errors appearing on the record.
2. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable.
3. Administrative Law: Judgments: Words and Phrases. Agency action
is arbitrary, capricious, and unreasonable if it is taken in disregard of the
facts or circumstances of the case, without some basis which would lead
a reasonable and honest person to the same conclusion.
4. Taxation: Valuation: Presumptions: Evidence. A presumption exists
that a board of equalization has faithfully performed its official duties in
making an assessment and has acted upon sufficient competent evidence
to justify its action. That presumption remains until there is competent
evidence to the contrary presented.
5. ____: ____: ____: ____. If the challenging party overcomes the pre-
sumption of validity by competent evidence, the reasonableness of the
valuation fixed by the board of equalization becomes one of fact based
upon all of the evidence presented.
6. Taxation: Valuation: Proof: Appeal and Error. The burden of show-
ing that a valuation is unreasonable or arbitrary rests upon the taxpayer
on appeal from the action of the board of equalization.
7. Taxation: Valuation: Proof. The burden of persuasion imposed on
a complaining taxpayer is not met by showing a mere difference of
opinion unless it is established by clear and convincing evidence that
the valuation placed upon the property, when compared with valuations
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placed on other similar property, is grossly excessive and is the result of
a systematic exercise of intentional will or failure of plain duty, and not
mere errors of judgment.
8. Taxation: Valuation: Words and Phrases. Equalization is the process
of ensuring that all taxable property is placed on the assessment rolls
at a uniform percentage of its actual value. The purpose of equalization
of assessments is to bring the assessment of different parts of a taxing
district to the same relative standard, so that no one of the parts may be
compelled to pay a disproportionate part of the tax.
9. Taxation. While absolute uniformity of approach for taxation may not
be possible, there must be a reasonable attempt at uniformity.
10. Taxation: Valuation: Constitutional Law. The object of the uniformity
clause is accomplished if all of the property within the taxing jurisdic-
tion is assessed and taxed at a uniform standard of value.
11. Taxation: Valuation: Public Policy. No difference in the method of
determining the valuation or rate of tax to be imposed can be allowed
unless separate classifications rest on some reason of public policy or
some substantial difference of situation or circumstance that would natu-
rally suggest justice or expediency of diverse legislation with respect to
the objects classified.
12. Taxation: Valuation. Generally, taxpayers are entitled to have their
property assessed uniformly and proportionately, even though the result
may be that it is assessed at less than the actual value.
13. Taxation: Valuation: Proof. The burden of proof is on the taxpayer to
establish that the value of the property has not been fairly and propor-
tionately equalized with all other properties, resulting in a discrimina-
tory, unjust, and unfair assessment.
14. Taxation: Valuation: Constitutional Law: Statutes. The county board
of equalization has a statutory duty to fairly and impartially equalize
the values of all items of real property in the county so that all real
property is assessed uniformly and proportionately. This statutory duty
is informed, in turn, by the constitutional principles of uniformity and
proportionality set out in Neb. Const. art. VIII, § 1.
15. Taxation: Valuation: Constitutional Law. In carrying out its duty to
correct and equalize individual discrepancies and inequalities in assess-
ments within the county, a county board of equalization must give effect
to the constitutional requirement that taxes be levied uniformly and
proportionately upon all taxable property in the county.
16. ____: ____: ____. The rule of uniformity applies to both the rate of
taxation and the valuation of property.
17. Taxation: Valuation: Constitutional Law: Intent. When property
owners contend their property has been disproportionately valued as
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Cite as 312 Neb. 757
compared to other comparable property, such contention must be sus-
tained by evidence that the valuation is arbitrary or capricious, or so
wholly out of line with actual values as to give rise to an inference
that the assessor and county board of equalization have not properly
discharged their duties. Mere errors of judgment do not sustain a claim
of discrimination. There must be something more, something which in
effect amounts to an intentional violation of the essential principle of
practical uniformity.
Appeal from the Tax Equalization and Review Commission.
Reversed and remanded with directions.
Patrick Condon, Lancaster County Attorney, and Daniel J.
Zieg for appellant.
David C. Solheim, of Solheim Law Firm, for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
In 2018, 2019, and 2020, Mary Moser and Brad Moser
protested the valuation of their agricultural land, and the
Lancaster County Board of Equalization (County Board)
affirmed the valuations. The Mosers appealed to the Tax
Equalization and Review Commission (TERC), and after a
consolidated evidentiary hearing, TERC affirmed the County
Board’s decision regarding the 2020 tax year, but reversed its
decisions for the 2018 and 2019 tax years. For both 2018 and
2019, TERC reduced the value of the Mosers’ irrigated acres
to equalize those acres with a nearby parcel of agricultural
property. The County Board timely petitioned for review of
TERC’s decision, 1 and we moved the case to our docket. We
now reverse the decision of TERC and remand the matter with
directions to affirm the decision of the County Board.
1
See Neb. Rev. Stat. § 77-5019(2)(a)(i) (Reissue 2018).
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Cite as 312 Neb. 757
I. BACKGROUND
The facts in this matter are largely undisputed. The Mosers
own approximately 116 acres of agricultural land located in
Lancaster County. The parcel number of the subject property
is 02-36-400-001-000, and it is referred to by the parties as
“Mary’s Farm.”
At all relevant times, Mary’s Farm was classified as unim-
proved agricultural land, and the acres were inventoried into
different subclasses. 2 During the 2018, 2019, and 2020 tax
years, Mary’s Farm had a center pivot irrigator, so some of the
acres were subclassified as irrigated cropland. Other acres were
subclassified as dryland cropland, grassland, and wasteland.
Under the assessment methodology and schedule of values
used by Lancaster County during the relevant tax years, the
actual value of an acre of irrigated cropland was higher than
the actual value of an acre of dryland cropland, grassland, and
wasteland, but all subclasses were assessed at the same per-
centage of actual value. 3
1. 2018 Protest
For tax year 2018, the Lancaster County assessor determined
the taxable value of Mary’s Farm was $612,500. This valuation
was based in part on property records subclassifying 88.09 of
the acres as irrigated cropland. In protesting the 2018 valu-
ation, the Mosers focused on the acres of irrigated cropland,
asserting that “[c]omparable ground 1 mile west is valued
much lower than this property.” As authorized by Neb. Rev.
Stat. § 77-1502.01 (Reissue 2018), the County Board used a
referee to hear the protest.
2
See, generally, Neb. Rev. Stat. § 77-1363 (Cum. Supp. 2020) (requiring
agricultural and horticultural land to be divided into classes and subclasses
for purposes of valuation, including, but not limited to, irrigated cropland,
dryland cropland, grassland, wasteland, nursery, feedlot, or orchard); Betty
L. Green Living Trust v. Morrill Cty. Bd. of Equal., 299 Neb. 933, 911
N.W.2d 551 (2018).
3
See, generally, Neb. Rev. Stat. § 77-201(2) (Reissue 2018) (agricultural
land “shall be valued at seventy-five percent of its actual value”).
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In support of their protest, the Mosers submitted the 2018
property record for a neighboring parcel of agricultural land,
referred to by the parties as the “Morrison property.” This
evidence showed the Morrison property had been classified
as improved agricultural land, with some acres subclassified
as dryland cropland and other acres subclassified as grassland
and wasteland. The Morrison property record did not show
any acres of irrigated cropland, but the Mosers claimed that
the Morrison property had two center pivot irrigators. In sup-
port, they offered a “Google Earth” image which purportedly
showed center pivot irrigators, but no crop circles, in a field
represented to be the Morrison property. Based on that evi-
dence, the Mosers argued that Mary’s Farm and the Morrison
property were “comparable in soil type and both have irrigated
and dryland acres.” They argued that because the irrigated
acres on the Morrison property had been subclassified and val-
ued as dryland, the irrigated acres on Mary’s Farm should be
revalued as dryland, too.
The referee rejected the Mosers’ argument, reasoning that
the evidence adduced did not support a reduction in the valua-
tion of the irrigated acres of Mary’s Farm. The County Board
agreed with the referee. However, pursuant to an unrelated
2017 settlement between the Mosers and TERC, the County
Board reduced the 2018 assessed value of Mary’s Farm to
$598,900.
2. 2019 Protest
A similar protest process occurred in 2019. In that year, the
county assessor determined the taxable value of Mary’s Farm
was $570,300, based in part on 90.69 acres which were sub-
classified and valued as irrigated cropland. The Mosers filed
a protest, again asking that their irrigated cropland be valued
as dryland. In support, they provided the 2019 property record
file for the Morrison property, which again showed that none
of the acres on the Morrison property were subclassified or
valued as irrigated cropland. The Mosers also provided color
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Cite as 312 Neb. 757
photographs of an operating center pivot in a cropfield they
represented was part of the Morrison property. And, as they
had done in 2018, the Mosers asked that the irrigated cropland
on Mary’s Farm be revalued as dryland cropland.
After reviewing the evidence provided by the Mosers, the
referee found that the Morrison property was “irrigated by
2 pivots[,] but taxed as dryland,” and recommended that the
assessor’s data on the Morrison property be corrected. However,
the referee concluded that the error in subclassifying and valu-
ing the Morrison property did “not support a valuation error
within [the] current assessment” of Mary’s Farm. The County
Board agreed with the referee and affirmed the assessor’s 2019
valuation of Mary’s Farm.
3. 2020 Protest
For the 2020 tax year, the assessor determined the taxable
value of Mary’s Farm was $551,300. The Mosers protested this
valuation, but this time they did not challenge the valuation of
the irrigated acres. Instead, they argued that their wasteland
acres were valued higher than wasteland acres in surround-
ing counties. In support, the Mosers offered information on
the standard land values for the different subclasses and soil
types in Saline County. The referee concluded that the infor-
mation provided by the Mosers did not support a valuation
error with the current assessment of Mary’s Farm. The County
Board agreed with the referee and affirmed the assessor’s
2020 valuation.
4. TERC Appeal
The Mosers appealed the 2018, 2019, and 2020 valuations
of Mary’s Farm to TERC, and a consolidated evidentiary hear-
ing was held on April 5, 2021. Mary testified on behalf of the
Mosers. She explained that in 2018 and 2019, they protested
the valuation of the irrigated acres on Mary’s Farm because
the Morrison property was located nearby and was “valued so
much lower than ours.” In support, Mary offered the evidence,
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described above, that the Mosers had presented to the County
Board in 2018 and 2019 regarding pivot irrigators on the
Morrison property. Mary testified that the Morrison property
records for 2018 and 2019 did not show that any portion of
the Morrison property was irrigated, and she asked that the
property record for Mary’s Farm be changed to “also reflect
non-irrigated land,” because that would be “equal.”
Derrick Niederklein, the chief field deputy for the Lancaster
County assessor’s office, testified on behalf of the County
Board. Niederklein testified that in 2018 and 2019 the asses-
sor’s office did not know the Morrison property had any irri-
gated acres. He explained that usually, a property owner reports
adding a pivot irrigator, 4 and the assessor’s office also uses
aerial and oblique imagery to identify pivots. Niederklein testi-
fied that “leaving the pivot off the Morrisons’ property [was]
not an intentional act by the assessor’s office.” He admitted
that it was “not uncommon” for the assessor’s office to learn
that something was incorrect in its property records because
conditions can change from year to year, but he testified that
generally, the property records were “accurate.” Niederklein
also testified that beginning in the 2020 tax year, the irrigated
acres on the Morrison property were correctly subclassified
and valued as irrigated cropland.
In an order entered on August 24, 2021, TERC made a
finding that the irrigated acres on the Morrison property were
“comparable to irrigated acres” on Mary’s Farm. TERC further
found that the documents the Mosers had submitted to the
County Board during their 2018 and 2019 protests provided
“compelling evidence” that the Morrison property had pivot
irrigation, even though the county’s property records for 2018
and 2019 did not show that any portion of the Morrison prop-
erty was irrigated. TERC recited the rule that
4
See Neb. Rev. Stat. § 77-1318.01(1) (Reissue 2018) (requiring owner of
real property to report improvement valued at $2,500 or more to assessor).
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LANCASTER CTY. BD. OF EQUAL. V. MOSER
Cite as 312 Neb. 757
[i]f taxable values are to be equalized it is necessary for
a Taxpayer to establish by clear and convincing evidence
that the valuation placed on the property[,] when com-
pared with valuations placed on other similar properties[,]
is grossly excessive and is the result of systematic exer-
cise of intentional will or failure of plain legal duty, and
not mere errors of judgment. 5
TERC then reasoned:
In the context of an appeal to this Commission, the
systematic exercise of intentional will or failure of a plain
duty is that of the County Board, not the County Assessor.
During the protest process, the [Mosers] presented the
County Board with clear evidence that the Morrison Farm
included irrigated land that was not being assessed as
irrigated land. At that point, the County Board had a plain
legal duty to equalize the assessments, even though the
result may have been that [Mary’s Farm] was assessed at
less than the actual value.
Based on this reasoning, TERC found there was clear and
convincing evidence that the County Board’s decisions in 2018
and 2019 were arbitrary or unreasonable. TERC ordered that
the irrigated acres on Mary’s Farm must be revalued as dryland
for both the 2018 and 2019 tax years. Using the county asses-
sor’s scheduled value for dryland cropland, TERC reduced the
total assessed value of Mary’s Farm by $125,715 for 2018 and
by $119,605 for 2019.
TERC concluded that no equalization was necessary for
the 2020 tax year “[b]ecause the irrigated parcels on the
Morrison farm were assessed as irrigated land” for that tax
year. Additionally, TERC rejected the Mosers’ contention that
they were entitled to have any subclass of agricultural land
in Lancaster County equalized with comparably subclassified
property in Saline County, reasoning that the scheduled values
5
See Newman v. County of Dawson, 167 Neb. 666, 94 N.W.2d 47 (1959).
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in another taxing district did not constitute sufficient evidence
that the assessment of the Mosers’ property was incorrect, arbi-
trary, or unreasonable.
5. Petition for Judicial Review
The County Board filed this timely petition for judicial
review in the Nebraska Court of Appeals. 6 The petition chal-
lenges only TERC’s decision to reduce the valuation of Mary’s
Farm for the 2018 and 2019 tax years. We moved the matter to
our docket on our own motion.
II. ASSIGNMENTS OF ERROR
The County Board assigns, restated, that TERC erred in
reducing the valuation of Mary’s Farm because there was not
clear and convincing evidence that the value, when compared
to similar property, was grossly excessive and was the result of
a systematic exercise of intentional will or failure of plain legal
duty and not mere errors of judgment.
III. STANDARD OF REVIEW
[1-3] Appellate courts review decisions rendered by TERC
for errors appearing on the record. 7 When reviewing a judg-
ment for errors appearing on the record, an appellate court’s
inquiry is whether the decision conforms to the law, is sup-
ported by competent evidence, and is neither arbitrary, capri-
cious, nor unreasonable. 8 Agency action is arbitrary, capricious,
and unreasonable if it is taken in disregard of the facts or cir-
cumstances of the case, without some basis which would lead a
reasonable and honest person to the same conclusion. 9
6
See § 77-5019.
7
Wheatland Indus. v. Perkins Cty. Bd. of Equal., 304 Neb. 638, 935 N.W.2d
764 (2019).
8
Id.
9
Id.
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IV. ANALYSIS
The ultimate question presented in this appeal is whether
TERC’s decision to revalue the irrigated cropland on Mary’s
Farm as dryland cropland conformed to the law, was supported
by competent evidence, and was neither arbitrary, capricious,
nor unreasonable. 10 Before addressing that question, we first
review the taxpayer’s burden of proof in an appeal before
TERC. We then review the foundational principles of taxing
agricultural land in Nebraska, as well as the constitutional
requirements of uniformity and proportionality that govern our
analysis.
1. Presumption of Validity and Burden of Proof
When reviewing appeals from decisions of county boards of
equalization, TERC must follow the standard set out in Neb.
Rev. Stat. § 77-5016(9) (Reissue 2018), which provides:
In all appeals, excepting those arising [from a county tax
levy], if the appellant presents no evidence to show that
the order, decision, determination, or action appealed
from is incorrect, [TERC] shall deny the appeal. If the
appellant presents any evidence to show that the order,
decision, determination, or action appealed from is incor-
rect, such order, decision, determination, or action shall
be affirmed unless evidence is adduced establishing that
the order, decision, determination, or action was unrea-
sonable or arbitrary.
[4,5] We have held that the language of § 77-5016(9) creates
a presumption in an appeal to TERC that a board of equaliza-
tion has faithfully performed its official duties in making an
assessment and has acted upon sufficient competent evidence
to justify its action. 11 That presumption remains until there is
10
See id.
11
E.g., Wheatland Indus., supra note 7; Betty L. Green Living Trust, supra
note 2; JQH La Vista Conf. Ctr. v. Sarpy Cty. Bd. of Equal., 285 Neb. 120,
825 N.W.2d 447 (2013); Brenner v. Banner Cty. Bd. of Equal., 276 Neb.
275, 753 N.W.2d 802 (2008); Ideal Basic Indus. v. Nuckolls Cty. Bd. of
Equal., 231 Neb. 653, 437 N.W.2d 501 (1989).
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competent evidence to the contrary presented. 12 If the chal-
lenging party overcomes the presumption of validity by com-
petent evidence, the reasonableness of the valuation fixed by
the board of equalization becomes one of fact based upon all
of the evidence presented. 13
[6,7] The burden of showing that a valuation is unreason-
able or arbitrary rests upon the taxpayer on appeal from the
action of the board. 14 And the burden of persuasion imposed on
a complaining taxpayer is not met by showing a mere differ-
ence of opinion unless it is established by clear and convincing
evidence that the valuation placed upon the property, when
compared with valuations placed on other similar property, is
grossly excessive and is the result of a systematic exercise of
intentional will or failure of plain duty, and not mere errors
of judgment. 15
2. Taxation of Agricultural Land
Mary’s Farm and the Morrison property are both classified
as agricultural land. 16 According to § 77-1363, agricultural land
is to be inventoried and valued by class and subclass:
Agricultural land and horticultural land shall be
divided into classes and subclasses of real property under
section 77-103.01, including, but not limited to, irri-
gated cropland, dryland cropland, grassland, wasteland,
nurseries, feedlots, and orchards, so that the categories
reflect uses appropriate for the valuation of such land
according to law. Classes shall be inventoried by sub-
classes of real property based on soil classification stan-
dards developed by the Natural Resources Conservation
Service of the United States Department of Agriculture as
12
Id.
13
See Wheatland Indus., supra note 7. See, also, Betty L. Green Living Trust,
supra note 2; JQH La Vista Conf. Ctr., supra note 11.
14
See id.
15
Id.
16
See § 77-201 and Neb. Rev. Stat. § 77-1359 (Reissue 2018).
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converted into land capability groups by the Property Tax
Administrator. Land capability groups shall be Natural
Resources Conservation Service specific to the applied
use and not all based on a dryland farming criterion.
County assessors shall utilize soil surveys from the
Natural Resources Conservation Service of the United
States Department of Agriculture as directed by the
Property Tax Administrator. Nothing in this section shall
be construed to limit the classes and subclasses of real
property that may be used by county assessors or the Tax
Equalization and Review Commission to achieve more
uniform and proportionate valuations.
And according to Neb. Rev. Stat. § 77-103.01 (Reissue 2018):
Class or subclass of real property means a group of
properties that share one or more characteristics typically
common to all the properties in the class or subclass, but
are not typically found in the properties outside the class
or subclass. Class or subclass includes, but is not limited
to, the classifications of agricultural land or horticultural
land listed in section 77-1363 . . . .
It is undisputed that during the 2018 and 2019 tax years, the
irrigated acres on Mary’s Farm were correctly subclassified as
irrigated cropland, while the irrigated acres on the Morrison
property were erroneously subclassified as dryland cropland.
It is also undisputed that the erroneous subclassification of
the Morrison property resulted in a lower assessed value than
if the acres had been correctly subclassified as irrigated crop-
land. We find no prior cases in our equalization jurisprudence
presenting a similar fact pattern. To analyze the duty of the
County Board under these unique facts, we rely on settled
principles of uniform and proportionate taxation.
3. Uniform and Proportionate Taxation
Uniform and proportionate taxation, sometimes referred to
as “equalization,” is a constitutional requirement in Nebraska.
Article VIII, § 1(1), of the Nebraska Constitution provides
in relevant part that “[t]axes shall be levied by valuation
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uniformly and proportionately upon all real property . . . except
as otherwise provided in or permitted by this Constitution.”
And article VIII, § 1(4), governs how agricultural and horti-
cultural land is to be uniformly and proportionately valued and
taxed. It provides:
[T]he Legislature may provide that agricultural land and
horticultural land, as defined by the Legislature, shall
constitute a separate and distinct class of property for pur-
poses of taxation and may provide for a different method
of taxing agricultural land and horticultural land which
results in values that are not uniform and proportion-
ate with all other real property and franchises but which
results in values that are uniform and proportionate upon
all property within the class of agricultural and horticul-
tural land. 17
[8] We have explained the process and purpose of equaliza-
tion as follows:
“Equalization is the process of ensuring that all taxable
property is placed on the assessment rolls at a uniform
percentage of its actual value. The purpose of equaliza-
tion of assessments is to bring the assessment of different
parts of a taxing district to the same relative standard, so
that no one of the parts may be compelled to pay a dispro-
portionate part of the tax.” 18
[9-12] We have also recognized that while “absolute uni-
formity of approach for taxation may not be possible, there
must be a reasonable attempt at uniformity.” 19 The object of
the uniformity clause is accomplished “‘if all of the prop-
erty within the taxing jurisdiction is assessed and taxed at a
uniform standard of value.’” 20 No difference in the method
17
Neb. Const. art. VIII, § 1(4) (emphasis supplied).
18
Krings v. Garfield Cty. Bd. of Equal., 286 Neb. 352, 357, 835 N.W.2d 750,
754 (2013), quoting Brenner, supra note 11.
19
Constructors, Inc. v. Cass Cty. Bd. of Equal., 258 Neb. 866, 873, 606
N.W.2d 786, 792 (2000).
20
Id. at 873, 606 N.W.2d at 792, quoting County of Gage v. State Board of
Equalization & Assessment, 185 Neb. 749, 178 N.W.2d 759 (1970).
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of determining the valuation or rate of tax to be imposed
can be allowed unless “separate classifications rest on some
reason of public policy or some substantial difference of
situation or circumstance that would naturally suggest jus-
tice or expediency of diverse legislation with respect to the
objects classified.” 21 Generally, taxpayers are entitled to have
their property assessed uniformly and proportionately, even
though the result may be that it is assessed at less than the
actual value. 22
In this case, we consider an issue of first impression in
Nebraska: whether constitutional principles of uniform and
proportionate taxation require that an isolated error in the
subclassification and undervaluation of one taxpayer’s prop-
erty must be replicated through the equalization process. As
we explain, we find no such requirement in the Nebraska
Constitution, Nebraska statutes, or Nebraska case law.
4. Facts and Law Do Not Support
TERC’s Decision
(a) Presumption of Validity
In any appeal before TERC, the threshold determination
should be whether the taxpayer presented competent evidence
to rebut the presumption of validity in favor of the board
of equalization. 23 Here, TERC made an express finding that
the Mosers had presented “competent evidence to rebut the
presumption that the County Board faithfully performed its
duties and had sufficient competent evidence to make its deter-
mination.” In arriving at this conclusion, TERC did not find
any error in the assessor’s valuation of Mary’s Farm. Rather,
TERC concluded the Mosers had presented “compelling evi-
dence of pivot irrigation on the Morrison farm” in 2018 and
2019 and had shown that the assessor’s property records for
those years taxed the Morrison property as dryland cropland.
21
Constructors, Inc., supra note 19, 258 Neb. at 874, 606 N.W.2d at 793.
22
Constructors, Inc., supra note 19.
23
See Wheatland Indus., supra note 7.
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As such, we understand TERC to have concluded that the pre-
sumption of validity was rebutted by photographic evidence
that the Morrison property contained irrigated cropland that
was erroneously valued as dryland cropland.
The County Board has not challenged TERC’s conclusion
that the Mosers’ evidence sufficiently rebutted the presump-
tion, and we express no opinion in that regard. Because, as we
explain next, even if the Mosers’ evidence was sufficient to
rebut the presumption of validity, they did not ultimately sat-
isfy their burden to prove by clear and convincing evidence that
the valuation of Mary’s Farm was unreasonable or arbitrary. 24
(b) Mosers Did Not Meet Burden of Proof
To prove the value placed on Mary’s Farm was unreason-
able or arbitrary, 25 the Mosers had to show that when compared
to the valuations placed on similar property, the valuation of
Mary’s Farm was grossly excessive and was the result of either
a systematic exercise of intentional will or the failure of a plain
legal duty, and not a mere error of judgment. 26
(i) Grossly Excessive Valuation
We question whether the Mosers proved by clear and con-
vincing evidence that the valuation of their irrigated acres
was grossly excessive when compared to similar property. We
agree the Mosers’ evidence showed that the irrigated acres on
Mary’s Farm were valued higher than the irrigated acres on
the Morrison property. But the Mosers did not compare the
irrigated acres on Mary’s Farm to any of the irrigated acres
in the taxing district which, like their property, had been
subclassified and valued as irrigated cropland. Instead, they
compared their valuation to the valuation of irrigated acres
which had been erroneously subclassified and valued as dry-
land cropland.
24
See § 77-5016(9).
25
See id.
26
See Betty L. Green Living Trust, supra note 2.
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But even if we set aside the different land classification
groups of Mary’s Farm and the Morrison property and assume,
without deciding, that the Mosers proved their valuation was
grossly excessive when compared to similar property, we
nevertheless conclude they failed to prove their valuation was
the result of either a systematic exercise of intentional will
or the failure of a plain legal duty, and not a mere error of
judgment. 27
(ii) Insufficient Evidence of Systematic
or Intentional Action
The Mosers offered no evidence of a systematic or inten-
tional misclassification and undervaluation of irrigated acres
in Lancaster County. Instead, they offered evidence of a single
parcel—the Morrison property—where irrigated cropland had
been erroneously subclassified and valued as dryland. And it
was undisputed that such error was unintentional and resulted
from an improvement to the property of which the asses-
sor’s office was unaware, despite its use of aerial and oblique
imagery to identify pivot irrigators. The evidence also showed
that when the county became aware of the erroneous subclas-
sification via the Mosers’ tax protests, the error was corrected
for the 2020 tax year. On this record, the Mosers failed to
prove the valuation was the result of a systematic exercise of
intentional will.
(iii) No Plain Legal Duty to Equalize
Mary’s Farm and Morrison Property
Similarly, the Mosers did not carry their burden of proving
that the valuation of Mary’s Farm resulted from the failure of
a plain legal duty and not a mere error of judgment. TERC’s
order did not explain why it determined the County Board had
“a plain legal duty to equalize the assessments” by revaluing
the irrigated acres on Mary’s Farm as dryland cropland. But
in its appellate briefing, TERC argues that once the Mosers
presented evidence that their irrigated acres were assessed at
27
See id.
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a higher value than the irrigated acres on the Morrison prop-
erty, it “trigger[ed] a duty to equalize.” 28 We thus understand
TERC to contend that these circumstances implicated constitu-
tional principles of uniform and proportionate taxation. On this
record, we disagree.
TERC appears to have ignored the fact that a subclassifica-
tion error regarding the Morrison property was the reason for
the disparate valuations, but we cannot. When determining
whether principles of uniformity and proportionality have been
violated by disparate valuations, we have said it is appropriate
to consider the reasons offered for “why a particular valua-
tion is what it is” because, without such context, evidence of
disparate valuations “indicates nothing.” 29 Here, the irrigated
acres on the Morrison property were valued lower because they
had been erroneously subclassified as dryland. It was that error
in subclassification, and only that error, which caused the dis
parate valuation about which the Mosers complain.
[13-15] The burden of proof is on the taxpayer to establish
that the value of the property has not been fairly and pro-
portionately equalized with all other properties, resulting in
a discriminatory, unjust, and unfair assessment. 30 The county
board of equalization has a statutory duty to “fairly and impar-
tially equalize the values of all items of real property in the
county so that all real property is assessed uniformly and
proportionately.” 31 This statutory duty is informed, in turn, by
the constitutional principles of uniformity and proportionality
set out in Neb. Const. art. VIII, § 1. In carrying out its duty to
correct and equalize discrepancies and inequalities in assess-
ments within the county, a county board of equalization “‘must
give effect to the constitutional requirement that taxes be
28
Brief for appellee at 8.
29
County of Franklin v. Tax Equal. & Rev. Comm., 296 Neb. 193, 201, 892
N.W.2d 142, 147 (2017).
30
Lincoln Tel. & Tel. Co. v. County Board of Equalization, 209 Neb. 465,
308 N.W.2d 515 (1981).
31
Neb. Rev. Stat. § 77-1501 (Reissue 2018).
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levied uniformly and proportionately upon all taxable property
in the county.’” 32 We see no evidence that these constitutional
principles were implicated by the County Board’s decision to
affirm the valuation of Mary’s Farm.
[16] The rule of uniformity applies to both the rate of tax
ation and the valuation of property. 33 And the object of the
uniformity clause is accomplished “‘if all of the property
within the taxing jurisdiction is assessed and taxed at a uni-
form standard of value.’” 34 The evidence presented in this
case and relied upon by TERC showed that in 2018 and 2019,
all agricultural land within the taxing district was assessed
and taxed at a uniform standard of value based on land clas-
sification group and soil type. Under that methodology, which
no one challenges as unreasonable or arbitrary, the scheduled
value of an acre of dryland cropland was lower than the
scheduled value of an acre of irrigated cropland of the same
soil type. The same assessment methodology was applied to
both Mary’s Farm and the Morrison property, but due to an
unknown improvement on the Morrison property, the irrigated
acres on that property were mistakenly subclassified and
valued as dryland cropland in 2018 and 2019. As such, this
case does not present a uniformity problem; rather, it presents
a classification problem that equalization would exacerbate,
not correct.
[17] A property owner’s contention that property has been
disproportionately valued as compared to other comparable
property
must be sustained by evidence that the valuation is arbi-
trary or capricious, or so wholly out of line with actual
values as to give rise to an inference that the assessor
and county board of equalization have not properly dis-
charged their duties. Mere errors of judgment do not
32
Krings, supra note 18, 286 Neb. at 358, 835 N.W.2d at 754.
33
Gordman Properties Co. v. Board of Equal., 225 Neb. 169, 403 N.W.2d
366 (1987).
34
Constructors, Inc., supra note 19, 258 Neb. at 873, 606 N.W.2d at 792.
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sustain a claim of discrimination. There must be some-
thing more, something which in effect amounts to an
intentional violation of the essential principle of practi-
cal uniformity. 35
Here, there was no evidence of something more. The only
reason for the lower valuation of the irrigated acres on the
Morrison property was that the cropland had been erroneously
subclassified and valued as dryland because the assessor’s
office was unaware the parcel had center pivots. Our record
contains no evidence of an intentional violation of the essential
principles of uniformity or proportionality and no evidence that
would give rise to an inference that either the assessor’s office
or the County Board failed to properly discharge its duties
under the law.
We reject TERC’s suggestion that constitutional principles
of uniformity and proportionality require a county board of
equalization to replicate what has been shown to be an isolated
and unintentional error in the subclassification and undervalua-
tion of one taxpayer’s property. Were we to adopt such a rule,
it would have far-reaching consequences to our equalization
jurisprudence. As the County Board argues:
Under [TERC’s] order, all a taxpayer must do is locate a
single unknown or unreported improvement to receive a
reduction on their property value. A taxpayer with a fin-
ished basement would only need to locate a single house
with a finished basement that is unknown to a county
assessor and by the TERC’s standard, the taxpayer would
have met their burden for proving a lack of equalization.
Similarly, a residence that is built and unreported to a
county assessor would result in all improvements being
removed from the assessment roll under the TERC’s
standard. 36
And we generally agree with the County Board’s observation
that by ordering equalization in response to evidence that a
35
Newman, supra note 5, 167 Neb. at 672, 94 N.W.2d at 50.
36
Brief for appellant at 10-11.
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single irrigated parcel was misclassified and thus undervalued,
“TERC created two parcels that are undervalued [and] imper-
missibly shifted the tax burden to every other irrigated parcel
that did not protest.” 37
The dissent suggests the County Board had a plain legal duty
to value the irrigated acres on Mary’s Farm as dryland under
the reasoning of the U.S. Supreme Court in Sioux City Bridge
v. Dakota County. 38 In that case, the Court was reviewing a
decision of the Nebraska Supreme Court which had affirmed
the denial of a tax protest over the valuation of a bridge in
Dakota County. 39 The bridge company had argued it was enti-
tled to have the valuation of the bridge reduced to 55 percent
of its true value because “other property in the district [was]
assessed at 55 [percent] of its true value.” 40 The Nebraska
Supreme Court rejected that argument and held that “when
property is assessed at its true value, and other property in the
district is assessed below its true value, the proper remedy is
to have the property assessed below its true value raised, rather
than to have the property assessed at its true value reduced.” 41
The U.S. Supreme Court granted certiorari and reversed. 42
Relying on the Due Process and Equal Protection Clauses of
the 14th Amendment to the U.S. Constitution, the Supreme
Court reasoned it was “utterly impossible for [the protesting
taxpayer] by any judicial proceeding to secure an increase in
the assessment of the great mass of under-assessed property
in the taxing district.” 43 The Court held that under such cir-
cumstances, “the right of the taxpayer whose property alone is
37
Id. at 9.
38
Sioux City Bridge v. Dakota County, 260 U.S. 441, 43 S. Ct. 190, 67 L.
Ed. 340 (1923).
39
Sioux City Bridge Co. v. Dakota County, 105 Neb. 843, 182 N.W. 485
(1921).
40
Id. at 848, 182 N.W. at 487.
41
Id.
42
Sioux City Bridge, supra note 38.
43
Id., 260 U.S. at 446.
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taxed at 100 [percent] of its true value is to have [the] assess-
ment reduced to the percentage of that value at which others
are taxed even though this is a departure from the requirement
of the statute.” 44
Sioux City Bridge is readily distinguishable from this case.
First, the holding was grounded in the 14th Amendment, not
the uniformity clause of the Nebraska Constitution, and we
do not understand the Mosers to have raised or preserved a
due process or equal protection claim in this case. Moreover,
the underassessment of property in Sioux City Bridge was
intentional and systematic—the bridge was being taxed at
100 percent of its actual value, while the “great mass” 45 of
property in the district was being taxed at 55 percent of its
actual value. That is nothing like the situation here, where the
evidence showed that dryland cropland and irrigated cropland
were taxed at the same percentage of actual value, and the
same assessment methodology and uniform valuation standards
were applied to all agricultural land in the taxing district. And
finally, although the taxpayer in Sioux City Bridge apparently
had no way to secure an increase in the intentionally under
assessed property, the Mosers point to nothing that prevented
them from protesting the misclassification of the irrigated acres
on the Morrison property. 46 Indeed, the record indicates that
the Mosers’ protests resulted in correcting the misclassification
of irrigated acres on the Morrison property for the 2020 tax
year. We are not persuaded that the holding or the reasoning in
Sioux City Bridge has application here.
The dissent also relies on a settled proposition from our
equalization jurisprudence which states, “‘“The constitution
forbids any discrimination whatever among taxpayers, thus, if
the property of one citizen is valued for taxation at one-fourth
44
Id.
45
Id.
46
See Neb. Rev. Stat. § 77-1502 (Cum. Supp. 2022) (directing county clerk
to mail copy of protest to owner when person filing protest is not owner
of property).
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its value, others within the taxing district have the right to
demand that their property be assessed on the same basis.”’” 47
But this proposition is not implicated here either, because
the Mosers’ property and the Morrison property were both
assessed at the same percentage of actual value based on sub-
classification. Again, the only reason shown for the valuation
differences between these two properties was their different
subclass. And we do not understand the dissent to be suggest-
ing that constitutional principles of uniformity and propor-
tionality are offended by a tax assessment methodology under
which each subclass of agricultural land has a different sched-
uled actual value. The Mosers have not shown unconstitutional
discrimination in the valuation of their property as compared to
the Morrison property.
We find no principled support for TERC’s conclusion that
an unintentional error in subclassifying the Morrison property
as dryland cropland imposed on the County Board a plain legal
duty to replicate that error through equalization by applying a
factually false subclassification to reduce the valuation of the
cropland on Mary’s Farm.
We instead conclude, on this record, that the Mosers failed
to prove by clear and convincing evidence that the valuation
of Mary’s Farm, when compared to the valuation of similar
property, was grossly excessive and was the result of a sys-
tematic exercise of intentional will or failure of plain duty,
and not mere errors of judgment. 48 Nor did the Mosers adduce
sufficient evidence to establish that the County Board’s deci-
sion to affirm the Mosers’ assessments in 2018 and 2019 was
unreasonable or arbitrary. 49
47
Gamboni v. County of Otoe, 159 Neb. 417, 435, 67 N.W.2d 489, 501
(1954), overruled in part on other grounds, Hansen v. County of Lincoln,
188 Neb. 461, 197 N.W.2d 651 (1972). See State v. Savage, 65 Neb. 714,
91 N.W. 716 (1902).
48
See, Betty L. Green Living Trust, supra note 2; JQH La Vista Conf. Ctr.,
supra note 11.
49
See § 77-5016(9).
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TERC’s conclusion that the County Board had a plain legal
duty to equalize the 2018 and 2019 assessments by treating
irrigated cropland on Mary’s Farm as dryland cropland was
factually incorrect, was not supported by competent evidence,
failed to conform to the law, was unreasonable, and must
be reversed. 50
V. CONCLUSION
For the foregoing reasons, we reverse TERC’s decision
to the extent it ordered that the irrigated cropland on Mary’s
Farm be valued as dryland cropland for the 2018 and 2019 tax
years, and we remand the matter with directions to affirm the
County Board’s assessments on parcel 02-36-400-001-000 for
both tax years.
Reversed and remanded with directions.
50
See Wheatland Indus., supra note 7.
Cassel, J., dissenting.
Although the majority concedes that irrigated acres on the
Morrison property were incorrectly classified as dryland and
that as a result, the Morrison property was erroneously given a
lower value than the comparable property of Brad Moser and
Mary Moser, the majority concludes that this triggered no plain
duty to equalize the two properties. I respectfully disagree. The
Nebraska Constitution compels otherwise.
Neb. Const. art. VIII, § 1(4), plainly commands that prop-
erties within the class of agricultural land and horticultural
land must be equalized despite being in separate subclasses.
The majority effectively holds that an error in subclassifica-
tion relieved the county board of its duty to equalize. This
court thereby fails to enforce the plain duty imposed by the
constitution.
For the sake of completeness, and at the risk of some
duplication of the majority opinion, I set forth this plain con-
stitutional language, the principle commanding adherence to
the constitutional mandate, and the history of the uniformity
clause and the amendments permitting separate classification
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of agricultural land and horticultural land. The majority here
effectively deprives an agricultural-land taxpayer of any
remedy for the misclassification of comparable agricultural
property. Because the organic law of this state requires the
action taken by the Tax Equalization and Review Commission
(TERC), I respectfully dissent.
For convenience, I refer generally to the language of article
VIII, § 1, as the uniformity clause. Insofar as it relates to the
case before this court, the uniformity clause states as follows:
The necessary revenue of the state and its governmen-
tal subdivisions shall be raised by taxation in such manner
as the Legislature may direct. Notwithstanding Article I,
section 16, Article III, section 18, or Article VIII, sec-
tion 4, of this Constitution or any other provision of this
Constitution to the contrary: (1) Taxes shall be levied by
valuation uniformly and proportionately upon all real
property and franchises as defined by the Legislature
except as otherwise provided in or permitted by this
Constitution; [and] (4) the Legislature may provide that
agricultural land and horticultural land, as defined by the
Legislature, shall constitute a separate and distinct class
of property for purposes of taxation and may provide for a
different method of taxing agricultural land and horticul-
tural land which results in values that are not uniform and
proportionate with all other real property and franchises
but which results in values that are uniform and propor-
tionate upon all property within the class of agricultural
land and horticultural land; . . . Each actual property tax
rate levied for a governmental subdivision shall be the
same for all classes of taxed property and franchises. 1
To the extent pertinent here, one can readily discern that § 1
addresses uniformity in two clauses. First, § 1(1) imposes a
general duty to levy taxes by valuation uniformly and propor-
tionately upon all real property except as otherwise allowed by
the Nebraska Constitution. Then, § 1(4) permits classification
1
Neb. Const. art. VIII, § 1 (emphasis supplied).
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of agricultural land and horticultural land as “a separate and
distinct class of property” and imposes a uniformity require-
ment upon “all property within the class of agricultural land
and horticultural land.”
This court, TERC, and the county boards of equalization
are all bound by the Nebraska Constitution. As this court has
said:
“A written Constitution is not only the direct and basic
expression of the sovereign will, but is the absolute rule
of action and decision for all departments and offices of
government with respect to all matters covered by it and
must control as it is written until it shall be changed by
the authority that established it. . . .” 2
As I explain below, article VIII, § 1(4), commands that all agri-
cultural land and horticultural land be equalized with all other
agricultural and horticultural lands, regardless of subclasses.
Neither this court nor the tribunals below may ignore this con-
stitutional mandate.
The uniformity clause has ancient roots. It originated in
the constitution of 1875. 3 The modern language began with
the constitutional revisions of 1920, which, as relevant here,
required simply that “taxes shall be levied by valuation uni-
formly and proportionately upon all tangible property.” 4
The rules as to uniformity and equal protection of the laws
apply not only to acts of the legislative department but also
to the valuation by the assessing officers. 5 Discrimination in
valuation, where it exists, does not necessarily result from the
terms of the tax statute, but may be caused by the acts of the
taxing officer or officers. 6
2
State ex rel. Caldwell v. Peterson, 153 Neb. 402, 408, 45 N.W.2d 122, 127
(1950) (quoting 11 Am. Jur. Constitutional Law § 44).
3
See Neb. Const. art. IX, § 1 (1875).
4
Neb. Const. art. VIII, § 1 (1920).
5
Constructors, Inc. v. Cass Cty. Bd. of Equal., 258 Neb. 866, 606 N.W.2d
786 (2000).
6
Id.
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This court has long said that the paramount object of the
constitution and the laws relative to taxation is to raise all
needful revenues by valuation of the taxable property so that
each owner of property taxed will contribute his, her, or its
just proportion of the public revenues. 7 The object of the law
of uniformity is accomplished if all property within the taxing
jurisdiction is assessed at a uniform standard of value, as com-
pared with its actual market value. 8 “Thus if the property of
one citizen is valued for taxation at one-fourth its value, others
within the taxing district have the right to demand that their
property be assessed on the same basis.” 9 In other words, this
court said, the constitution forbids any discrimination whatever
among taxpayers. 10 Numerous cases have applied the uniform
ity clause in this way. 11
As to most real estate, Nebraska law still mandates equal-
ization with all other real estate subject to taxation. Above, I
quoted article VIII, § 1(1), which commands that “[t]axes shall
be levied by valuation uniformly and proportionately upon all
real property . . . as defined by the Legislature except as other-
wise provided in or permitted by this Constitution.” Likewise,
7
See State v. Savage, 65 Neb. 714, 91 N.W. 716 (1902).
8
See id.
9
Id. at 744, 91 N.W. at 720.
10
Id.
11
See, e.g., County of Douglas v. Nebraska Tax Equal. & Rev. Comm., 262
Neb. 578, 635 N.W.2d 413 (2001); AT&T Information Sys. v. State Bd.
of Equal., 237 Neb. 591, 467 N.W.2d 55 (1991); Konicek v. Board of
Equalization, 212 Neb. 648, 324 N.W.2d 815 (1982); County of Buffalo
v. State Board of Equalization & Assessment, 158 Neb. 353, 63 N.W.2d
468 (1954); Laflin v. State Board of Equalization and Assessment, 156
Neb. 427, 56 N.W.2d 469 (1953); Homan v. Board of Equalization, 141
Neb. 400, 3 N.W.2d 650 (1942); Continental Ins. Co. v. Smrha, 131 Neb.
791, 270 N.W. 122 (1936); Chicago, R. I. & P. R. Co. v. State, 111 Neb.
362, 197 N.W. 114 (1923); State v. Fleming, 70 Neb. 523, 97 N.W. 1063
(1903); State v. Savage, supra note 7; State v. Osborn, 60 Neb. 415, 83
N.W. 357 (1900); High School District v. Lancaster County, 60 Neb. 147,
82 N.W. 380 (1900); State, ex rel. Ahern, v. Walsh, 31 Neb. 469, 48 N.W.
263 (1891); Clother v. Maher, 15 Neb. 1, 16 N.W. 902 (1883).
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a Nebraska statute requires that “[t]he county board of equal-
ization shall fairly and impartially equalize the values of all
items of real property in the county so that all real property
is assessed uniformly and proportionately.” 12 The purpose of
equalization of assessments is to bring the assessment of dif-
ferent parts of a taxing district to the same relative standard, so
that no one of the parts may be compelled to pay a dispropor-
tionate part of the tax. 13
But through amendments begun in 1984, 14 revised in 1989, 15
and completed in 1992, 16 the constitution was amended to allow
agricultural and horticultural lands to be valued disproportion-
ately from other types of real property but to require them to
be valued uniformly and proportionately with other agricultural
and horticultural lands. 17 For the reader’s convenience, I repeat
that portion of the constitution, which now reads,
the Legislature may provide that agricultural land and
horticultural land, as defined by the Legislature, shall
constitute a separate and distinct class of property for pur-
poses of taxation and may provide for a different method
of taxing agricultural land and horticultural land which
results in values that are not uniform and proportion-
ate with all other real property and franchises but which
results in values that are uniform and proportionate upon
all property within the class of agricultural land and hor-
ticultural land. 18
The principles of interpreting a constitutional provision are
well settled. The words in a constitutional provision must be
interpreted and understood in their most natural and obvious
12
Neb. Rev. Stat. § 77-1501 (Reissue 2018).
13
Krings v. Garfield Cty. Bd. of Equal., 286 Neb. 352, 835 N.W.2d 750
(2013).
14
See 1984 Neb. Laws, L.R. 7, § 1.
15
See 1989 Neb. Laws, L.R. 2, § 1.
16
See 1992 Neb. Laws, L.R. 219CA, § 1.
17
See Neb. Const. art. VIII, § 1(4).
18
Neb. Const. art. VIII, § 1(4) (emphasis supplied).
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meaning unless the subject indicates or the text suggests that
they are used in a technical sense. 19 If the meaning of a consti-
tutional provision is clear, the court will give to it the meaning
that obviously would be accepted and understood by layper-
sons. 20 Constitutional provisions are not subject to strict con-
struction and receive a broader and more liberal construction
than do statutes. 21 It is the duty of courts to ascertain and to
carry into effect the intent and purpose of the framers of the
constitution or of an amendment thereto. 22
Here, the plain language requires uniformity within the
entire class of agricultural land and horticultural land. This
court is not permitted to read into this clause words which
are not there or to omit words. I respectfully submit that the
majority does so, at least implicitly. But the plain constitutional
language commands that “all property within the class of agri-
cultural land and horticultural land” be equalized.
First, the beginning part of § 1(4) states the singular—“a
separate and distinct class”—and not a plural—“one or more
separate and distinct classes.” (Emphasis supplied.) Second,
the words “all property” immediately precede the words
“within the class.” 23 Third, the last phrase reads, “uniform
and proportionate upon all property within the class of agri-
cultural land and horticultural land”—a construction using
singular and not plural. 24 This provides a plain command to
equalize all property within the class of agricultural land and
horticultural land, and it simply does not permit equalization
only within an agricultural subclass. My reading is, I respect-
fully suggest, the way these words and phrases would be read
by a layperson.
19
State ex rel. Peterson v. Shively, 310 Neb. 1, 963 N.W.2d 508 (2021).
20
Id.
21
Id.
22
Id.
23
Neb. Const. art. VIII, § 1(4).
24
Id. (emphasis supplied).
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The Legislature reads § 1(4) the same way that I do. A
statute proclaims, “The Legislature finds and declares that
agricultural land and horticultural land shall be a separate and
distinct class of real property for purposes of assessment.” 25 It
then states, “The assessed value of agricultural land and hor-
ticultural land shall not be uniform and proportionate with all
other real property, but the assessed value shall be uniform and
proportionate within the class of agricultural land and horti-
cultural land.” 26 Thus, the legislative language, consistent with
that of the constitution, mandates that assessed value shall be
uniform and proportionate within the class of agricultural land
and horticultural land.
Our previous case law construed this constitutional lan-
guage the same way. We said that after the amendments to
article VIII, § 1, and the enactment of statutes pursuant to such
authority providing for a different method of taxing agricultural
and horticultural land, the constitution does not require uni
formity between the class of agricultural and horticultural land
and other types of real estate. 27 From this development, we
drew two principles: (1) “[I]t is no longer required or proper
to equalize the value of nonagricultural, nonhorticultural land
with the value of agricultural and horticultural land,” and (2)
“[e]qualization is still required within the class of agricultural
and horticultural land, because the constitution still requires
uniformity within that class.” 28
For the sake of completeness, I note that during floor debate
of the 1984 legislation submitting an amendment of article
VIII, § 1, to the voters, senators read the phrase the same
way. Admittedly, that language was slightly different, in that
it added a sentence stating, “The Legislature may provide that
agricultural land and horticultural land used solely for agricul-
tural or horticultural purposes shall constitute a separate and
25
Neb. Rev. Stat. § 77-1359 (Reissue 2018).
26
Id.
27
Krings v. Garfield Cty. Bd. of Equal., supra note 13.
28
Id. at 361, 835 N.W.2d at 756.
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distinct class of property for purposes of taxation.” 29 One sena-
tor stated:
If you read the language very carefully, it says, I’ll just
read the last part, “shall constitute a separate and distinct
class.” Very singular. It says there will be one class, a class.
What it says is, “agricultural land and horticultural land
taken together as a group will constitute a single class.” I
think we could probably diagram that on the blackboard
and all but I believe it is very clear that it is singular and
it is just a class. We’re not creating two classes. 30
Another senator agreed “100 percent.” 31 Although the 1984
language differed slightly, it closely resembles the current con-
stitutional wording.
While another statute further divides agricultural land and
horticultural land into classes and subclasses, nothing in that
other statute suggests that a misclassification protects an assess-
ment from the requirements of uniformity and proportionality. 32
Here, TERC was reviewing the refusal of the county board
of equalization to equalize comparable agricultural proper-
ties within the same taxing district in Lancaster County. The
majority suggests that the county board had no plain duty to
correct an individual discrepancy. But our case law teaches
otherwise.
In Bartlett v. Dawes Cty. Bd. of Equal., 33 this court reiterated
three important principles. First, a county board of equalization
has the duty to correct and equalize individual discrepancies
and inequalities in assessments within the county. 34 Second, in
29
1984 Neb. Laws, L.R. 7, § 1.
30
Floor Debate, L.R. 7, 88th Leg., 1st Spec. Sess. 340 (Aug. 29, 1984)
(remarks of Senator Ron Withem).
31
Id. (remarks of Senator Peter Hoagland).
32
See Neb. Rev. Stat. § 77-1363 (Cum. Supp. 2020).
33
Bartlett v. Dawes Cty. Bd. of Equal., 259 Neb. 954, 613 N.W.2d 810
(2000) (superseded by statute on other grounds as stated in Cain v. Custer
Cty. Bd. of Equal., 298 Neb. 834, 906 N.W.2d 285 (2018)).
34
See id.
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carrying out this function, the county board must give effect to
the constitutional requirement that taxes be levied uniformly
and proportionately upon all taxable property in the coun-
ty. 35 Finally, this basic duty of county boards of equalization
remains unchanged by enactment of the Tax Equalization and
Review Commission Act. 36
The correct remedy for equalization was recognized by the
U.S. Supreme Court nearly 100 years ago in Sioux City Bridge
v. Dakota County, 37 which reversed a decision of this court. 38
There, this court found that a property, which had a valuation
disproportionately higher than comparable property, should
not have its valuation lowered. 39 This court ruled that when a
property is assessed at its true value, and other property in the
district is assessed below its true value, the proper remedy is
to have the property assessed below its true value raised, rather
than to have property assessed at its true value reduced. 40
The U.S. Supreme Court reversed this court’s decision and
remanded the case for further proceedings. 41 The high court
stated that “such a result as that reached by [this court] is
to deny the injured taxpayer any remedy at all because it is
utterly impossible for him by any judicial proceeding to secure
an increase in the assessment of the great mass of under-
assessed property in the taxing district.” 42 The Court further
stated, “The conclusion is based on the principle that where
it is impossible to secure both the standard of the true value,
35
See id.
36
See id.
37
Sioux City Bridge v. Dakota County, 260 U.S. 441, 43 S. Ct. 190, 67 L.
Ed. 340 (1923).
38
See Sioux City Bridge Co. v. Dakota County, 105 Neb. 843, 182 N.W. 485
(1921).
39
See id.
40
See id.
41
See Sioux City Bridge v. Dakota County, supra note 37.
42
Id., 260 U.S. at 446.
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and the uniformity and equality required by law, the latter
requirement is to be preferred as the just and ultimate purpose
of the law.” 43
Because the high court applied federal constitutional law,
the majority attempts to discredit the remedy. But the basic
principle of that case is instructive. Where it is impossible to
increase the misclassified agricultural land to its true value, the
preferred remedy is to reduce the injured taxpayer’s property
value to achieve the uniformity required. To refuse to do so
deprives the taxpayer of a remedy.
This court’s more recent uniformity clause jurisprudence
has also provoked criticism. 44 The majority’s implicit applica-
tion of the uniformity clause only within a subclass is fraught
with the danger of unintended consequences. Surely, this recent
experience counsels that in interpreting the uniformity clause,
this court should strictly adhere to the constitutional text, the
enabling legislation, and our previous case law—all of which
require application of the uniformity clause to all property
within the class of agricultural land and horticultural land.
After all, “Those who cannot remember the past are con-
demned to repeat it.” 45
Properly understood, § 1(4) accomplishes two related goals.
First, it permits agricultural and horticultural lands not to be
valued uniformly and proportionately with other types of real
estate, such as residential, commercial, or industrial lands.
Second, it imposes a uniformity requirement for all lands
within the separate class of agricultural land and horticul-
tural land.
Here, the assessments were not equalized. Mary’s Farm was
comparable to the Morrison property: they were located in
close proximity to one another and both were used as irrigated
43
Id.
44
See George Kilpatrick, Personal Property Tax Post Mortem: What Lies
Ahead for Nebraska, 27 Creighton L. Rev. 25 (1993).
45
George Santayana, The Life of Reason: Reason in Common Sense 284
(Scribner’s 1905).
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cropland. Though comparable, the Morrison property was mis-
classified as dry cropland. This led to its having a lower tax
valuation. Because the irrigated acres on the Morrison property
were assessed at a lower rate than the irrigated acres on Mary’s
Farm, the Mosers’ property was not “equalized” with the value
of other agricultural land in Lancaster County. As a result, the
Mosers paid a disproportionate part of the tax.
If a taxpayer’s property is assessed at a value in excess of
its actual value, or in excess of that value at which others are
taxed, then the taxpayer has a right to relief. 46 The right is to
have the taxpayer’s property assessment reduced to the per-
centage of the property’s value at which others are taxed. 47
TERC’s decision enforced that right.
The majority incorrectly contends that application of our
long-established uniformity clause jurisprudence would have
“far-reaching consequences.” It quotes the county board’s brief
regarding equalization that might be required due to a protest
based on a “finished basement” or a “residence that is built and
unreported.” 48
But these examples would not result in reduction of the val-
ues of all other properties. Only a taxpayer who protested and
persisted in that protest would receive equalization and only if
that taxpayer’s property were significantly overvalued in com-
parison to the undervalued property. In other words, the situa-
tion here did not require the county board to lower all irrigated
farmland valuations to the Morrison property’s level. But it did
require the county board to equalize the Mosers’ property with
the Morrison property.
This is a natural consequence of equalization at the local
level, in order to provide a remedy for a protesting taxpayer
disadvantaged by another taxpayer’s undervaluation. Here,
46
See, AT&T Information Sys. v. State Bd. of Equal., supra note 11; Zabawa
v. Douglas Cty. Bd. of Equal., 17 Neb. App. 221, 757 N.W.2d 522 (2008).
47
See, Chief Indus. v. Hamilton Cty. Bd. of Equal., 228 Neb. 275, 422
N.W.2d 324 (1988); Konicek v. Board of Equalization, supra note 11.
48
See brief for appellant at 11.
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equalization would reduce the protesting taxpayers’ burden in
a way not required for other similarly situated taxpayers who
failed to file protests or to appeal from the denial of their pro-
tests. This matters not. Other taxpayers’ failure to exercise their
rights is no defense to granting such relief to a taxpayer who
did so exercise such taxpayer’s rights. 49
The majority purports to avoid this clear constitutional com-
mand, but it cannot hide from the reality. The majority suggests
the Mosers should have protested the Morrison property’s valu-
ation. Nothing in the statute cited by the majority 50 or in that
statute’s 2018 amendment 51 suggests an intention to displace
the traditional equalization remedy. Nothing in the county
board’s brief makes any such argument. Nor has any decision
of this court or the Nebraska Court of Appeals so held. And
this notion flies in the face of long-settled uniformity clause
jurisprudence. I have already cited our numerous cases requir-
ing equalization. And this court has repeatedly said that if the
property of one citizen is valued for taxation at one-fourth its
value, others within the taxing district have the right to demand
that their property be assessed on the same basis. 52 Here, the
owners of the Morrison property are the “one citizen” and the
Mosers are the “others within the taxing district.” The Mosers
had the right to demand assessment on the same basis.
In this situation, the county board had the plain duty to
equalize. TERC was perhaps charitable in relying only on
plain duty and not systemic discrimination. The county board’s
49
84 C.J.S. Taxation § 42 (2022) (citing Kuiters v. County of Freeborn, 430
N.W.2d 461 (Minn. 1988)).
50
See Neb. Rev. Stat. § 77-1502 (Cum. Supp. 2022).
51
See 2018 Neb. Laws, L.B. 885, § 1 (adding requirement that protest “indi-
cate whether the person signing the protest is an owner of the property or
a person authorized to protest on behalf of the owner”).
52
See, Gamboni v. County of Otoe, 159 Neb. 417, 67 N.W.2d 489 (1954),
overruled in part on other grounds, Hansen v. County of Lincoln, 188 Neb.
461, 197 N.W.2d 651 (1972); State v. Back, 72 Neb. 402, 100 N.W. 952
(1904); State v. Savage, supra note 7; State v. Karr, 64 Neb. 514, 90 N.W.
298 (1902); State v. Osborn, supra note 11.
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failure to correct the misclassification after hearing the taxpay-
ers’ protest for the first year suggests, at best, bureaucratic
ineptitude, or, worse, a disdain for taxpayers’ rights in the
equalization process. Our traditional equalization jurisprudence
places the incentive for diligence where it belongs—upon the
taxing authority.
The majority purports to limit its refusal to equalize to
“error in the subclassification and undervaluation of one tax-
payer’s property.” But there is no principled distinction, based
in law, between errors in misclassification involving multiple
tracts. Perhaps at some point, such errors might be described
as systemic. But the majority does not announce a principle
which can guide county boards of equalization and TERC in
distinguishing when misclassifications are merely “isolated
error.” And I respectfully urge that the uniformity clause does
not condone this notion. Our case law teaches otherwise.
TERC was required to faithfully apply Neb. Const. art.
VIII, § 1(4), and it did so. TERC’s decision conforms to the
law, is supported by competent evidence, and is neither arbi-
trary, capricious, nor unreasonable. I would affirm its deci-
sion. Because the majority takes a different course, I respect-
fully dissent.
Papik and Freudenberg, JJ., join in this dissent. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487195/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/18/2022 09:05 AM CST
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STATE V. BROWN
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State of Nebraska, appellee, v.
David B. Brown, appellant.
___ N.W.2d ___
Filed October 21, 2022. No. S-21-097.
1. Appeal and Error. When reviewing a question of law, an appellate court
resolves the question independently of the lower court’s conclusion.
2. Pleadings: Judgments: Appeal and Error. A trial court’s decision
to grant or deny a motion to reconsider is reviewed for an abuse of
discretion.
3. Public Officers and Employees: Negligence: Pleadings: Appeal and
Error. The appropriate filing procedure when an appeal is lost due to
official negligence is for the party seeking relief to file a motion in
the lower court, seeking the ability to establish the basis for obtain-
ing relief.
4. Public Officers and Employees: Negligence: Appeal and Error.
Where a duty is placed upon a public officer to perform acts necessary
to perfect an appeal, his or her failure to perform cannot be charged to
the litigant or operate to defeat the appeal; however, if the negligence of
the appellant or his or her agent concurs with that of the court official,
it precludes the appeal.
5. Attorney and Client: Agency. The relationship between attorney and
client is one of agency, and the general agency rules of law apply to the
relation of attorney and client.
6. Postconviction: Effectiveness of Counsel: Public Officers and
Employees: Negligence: Appeal and Error. The loss of an appeal on
collateral review due to postconviction counsel’s negligence does not
entitle the party seeking relief to the procedural remedy recognized
when an appeal is lost due to official negligence.
7. Postconviction: Effectiveness of Counsel: Appeal and Error. Where
a defendant is denied his or her right to a direct appeal because counsel
fails to perfect an appeal, the proper vehicle for the defendant to seek
relief is through the Nebraska Postconviction Act.
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STATE V. BROWN
Cite as 312 Neb. 654
8. Postconviction: Constitutional Law: Effectiveness of Counsel. There
is no constitutional guarantee of effective assistance of counsel in a
postconviction action and therefore no claim for ineffective assistance
of postconviction counsel.
9. Courts: Judgments: Time: Appeal and Error. A motion for reconsid-
eration does not terminate the time for appeal and is considered nothing
more than an invitation to the court to consider exercising its inherent
power to vacate or modify its own judgment.
10. Courts: Judgments: Legislature: Time: Appeal and Error. Courts
have the power to vacate or modify their own judgments and orders at
any time during the term at which they were pronounced. But this power
may not be used to circumvent the Legislature’s power to fix the time
limit to take an appeal.
11. Courts: Judgments: Time: Appeal and Error. A court may not vacate
an order or judgment and reinstate it at a later date just for the purpose
of extending the time for appeal.
12. Judgments: Appeal and Error. Where the record adequately demon-
strates that the decision of a trial court is correct, although such correct-
ness is based on a ground or reason different from that assigned by the
trial court, an appellate court will affirm.
Petition for further review from the Court of Appeals,
Pirtle, Chief Judge, and Riedmann and Welch, Judges,
on appeal thereto from the District Court for Butler County,
Christina M. Marroquin, Judge. Judgment of Court of
Appeals reversed and remanded with direction.
Robert Wm. Chapin, Jr., for appellant.
Douglas J. Peterson, Attorney General, and Siobhan E.
Duffy for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
INTRODUCTION
We granted the State of Nebraska’s petition for further review
to consider a Nebraska Court of Appeals’ decision 1 extending
1
State v. Brown, 30 Neb. App. 657, 970 N.W.2d 809 (2022).
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the procedural remedy for “claims of official negligence” 2
to an appeal that purportedly was lost due to an appointed
postconviction counsel’s actions. Because we conclude that
the Court of Appeals’ decision extends State v. Parnell 3 and
State v. Jones 4 beyond their applicable scope, we reverse, and
remand with direction.
BACKGROUND
This case arises from criminal proceedings in the district
court for Butler County. A jury convicted David B. Brown of
two counts of first degree sexual assault, and the court sen-
tenced Brown. On direct appeal, the Court of Appeals affirmed
Brown’s convictions and sentences. 5 Brown filed a timely pro
se motion for postconviction relief pursuant to Neb. Rev. Stat.
§ 29-3001 (Reissue 2016). The State moved to dismiss the
motion, and the district court appointed counsel to represent
Brown. The court heard arguments from the State and Brown’s
appointed counsel.
On September 17, 2020, the court entered an order that sus-
tained the State’s motion to dismiss and “dismissed [Brown’s
motion for postconviction relief] without the necessity of an
evidentiary hearing.” The court addressed three claims. It
stated that Brown’s claim for actual innocence was “an attempt
to relitigate issues decided at trial,” that his ineffective assist
ance of trial counsel claim for failure to file a motion to
suppress had “no basis” in light of the jury instructions, and
that his ineffective assistance of appellate counsel claim for
failure to challenge the constitutionality of the Sex Offender
Registration Act 6 had no legal basis.
2
See, State v. Jones, 307 Neb. 809, 950 N.W.2d 625 (2020); State v.
Parnell, 301 Neb. 774, 919 N.W.2d 900 (2018).
3
State v. Parnell, supra note 2.
4
State v. Jones, supra note 2.
5
See State v. Brown, No. A-18-599, 2019 WL 1492689 (Neb. App. Mar. 25,
2019) (selected for posting to court website).
6
See Neb. Rev. Stat. §§ 29-4001 to 29-4014 (Reissue 2016).
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Brown did not file an appeal within 30 days of the court’s
order. 7
On January 19, 2021, Brown filed a pro se “Verified Motion
for Reconsideration, Motion to Vacate and Reinstate Order
Denying Motion for Postconviction Relief.” Brown moved the
court to reconsider his motion for postconviction relief or, in
the alternative, to vacate and reinstate the order so that Brown
could file a timely appeal.
In the motion, Brown asserted that his delay in filing an
appeal was due to his appointed counsel’s failure to provide
him with a copy of the court’s order. Brown further alleged
that his counsel did not notify him of the court’s ruling until
October 16, 2020, which was 29 days after the court entered
the order. Brown stated that he did not receive a copy of the
order until December 14.
On January 22, 2021, the court “dismissed” Brown’s motion.
The order stated: “The Court has reviewed [Brown’s] Motion
for Reconsideration. It is untimely filed and the Motion is here
dismissed.”
On February 3, 2021, Brown filed an appeal from that rul-
ing. He assigned, restated, that (1) the district court erred in
dismissing the motion for reconsideration and (2) the attorney
assigned to represent Brown in his postconviction motion was
ineffective. Brown argued that the court abused its discretion
in dismissing the motion as untimely in light of his delay in
receiving a copy of the court’s order. The State argued that
the court “correctly denied the motion for reconsideration
because it could not legally vacate and reissue” the initial
order to circumvent the legislatively created deadline and
because the court had correctly denied Brown’s postconvic-
tion motion. 8
Without addressing the merits of Brown’s motion for recon-
sideration, the Court of Appeals found that the district court
7
See Neb. Rev. Stat. § 25-1912 (Cum. Supp. 2022).
8
Brief for appellee at 11.
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abused its discretion in dismissing the motion as untimely. It
reasoned that a motion for reconsideration does not terminate
the time for appeal and is considered nothing more than an
invitation to the court to consider exercising its inherent power
to vacate or modify its own judgment. 9 It further stated:
Although Brown asserts that the delay in receiving
notice of the court’s dismissal of his postconviction
motion was due to his counsel’s negligence as opposed
to negligence of the court or prison officials, State v.
Parnell[ 10] and State v. Jones[ 11] instruct that Brown’s
motion to reconsider was not untimely and should not
have been dismissed as such. 12
The Court of Appeals also cited to one of its decisions 13 which
addressed the merits of an appeal of the denial of a motion to
vacate an order denying postconviction relief based on alleg-
edly newly discovered evidence.
The Court of Appeals next reasoned that there is no constitu-
tional guarantee of effective assistance of counsel in a postcon-
viction action and therefore no claim for ineffective assistance
of postconviction counsel. 14 It reversed the district court’s dis-
missal of Brown’s motion for reconsideration as untimely and
remanded the matter for consideration on the merits.
The State filed a timely petition for further review, which
we granted.
ASSIGNMENTS OF ERROR
The State assigns, restated, that the Court of Appeals erred
in (1) relying on Parnell and Jones to conclude that Brown’s
motion for reconsideration was not untimely and (2) remanding
9
See State v. Lotter, 301 Neb. 125, 917 N.W.2d 850 (2018).
10
State v. Parnell, supra note 2.
11
State v. Jones, supra note 2.
12
State v. Brown, supra note 1, 30 Neb. App. at 660, 970 N.W.2d at 812.
13
State v. Manning, 18 Neb. App. 545, 789 N.W.2d 54 (2010).
14
See State v. Hessler, 288 Neb. 670, 850 N.W.2d 777 (2014).
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the matter, because the district court could not legally vacate
and reinstate the order dismissing Brown’s motion for postcon-
viction relief.
STANDARD OF REVIEW
[1,2] When reviewing a question of law, an appellate court
resolves the question independently of the lower court’s con-
clusion. 15 A trial court’s decision to grant or deny a motion to
reconsider is reviewed for an abuse of discretion. 16
ANALYSIS
In its petition for further review, the State assigns that the
Court of Appeals’ reliance on Parnell 17 and Jones 18 is mis-
placed. It suggests that the procedural remedy outlined in
those cases applies only to “claims of official negligence.” 19 It
points out—and the Court of Appeals recognized—that Brown
attributes his delay in filing to his appointed counsel’s negli-
gence. The State characterizes the Court of Appeals’ decision
as “equat[ing] actions of postconviction counsel with that of
official negligence.” 20
Parnell and Jones Do Not Apply
[3] We begin by analyzing the procedural remedy outlined in
Parnell and Jones to determine whether it applies in Brown’s
situation. In both cases, we recognized a narrow exception to
the 30-day time limit to appeal: The appropriate filing proce-
dure when an appeal is lost due to official negligence is for the
party seeking relief to file a motion in the lower court, seeking
the ability to establish the basis for obtaining relief. 21
15
State v. Koch, 304 Neb. 133, 933 N.W.2d 585 (2019).
16
County of Douglas v. Nebraska Tax Equal. & Rev. Comm., 296 Neb. 501,
894 N.W.2d 308 (2017).
17
State v. Parnell, supra note 2.
18
State v. Jones, supra note 2.
19
Brief for appellee in support of petition for further review at 7.
20
Id.
21
State v. Jones, supra note 2; State v. Parnell, supra note 2.
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This procedural remedy derives from our earlier holding in
State v. Smith. 22 There, a district court overruled a defendant’s
motion for postconviction relief. The defendant appealed from
the order, but the Court of Appeals dismissed the appeal as
untimely. The defendant then filed a second “‘motion for post-
conviction relief,’” alleging that he filed his notice of appeal
and accompanying documents within the 30-day period. 23 He
alleged that the court clerk misplaced the documents he filed,
depriving him of his right to appeal. Given the circumstances,
the defendant requested that the court permit him to appeal.
The district court sustained the motion.
[4] On appeal in Smith, this court distinguished negligence
that results solely from a public officer’s error from negligence
that results, at least in part, due to the acts of the appellant or
his or her agent. We emphasized that where a duty is placed
upon a public officer to perform acts necessary to perfect an
appeal, his or her failure to perform cannot be charged to the
litigant or operate to defeat the appeal; however, if the negli-
gence of the appellant or his or her agent concurs with that of
the court official, it precludes the appeal. 24 We reasoned that
the defendant would be entitled to reinstatement of his appeal
if it was lost solely due to the clerk’s error. Therefore, we held
that the appropriate procedure for securing a new appeal when
an appeal is lost due to official negligence is to file a motion
in the lower court and establish the factual basis for obtain-
ing relief.
We now turn to our analysis in Parnell and Jones. The Court
of Appeals’ decision recites the facts of both cases, which we
briefly set forth here.
In Parnell, the defendant alleged that he missed the dead-
line for appeal, because he did not receive a copy of the dis-
trict court’s order dismissing his motion for postconviction
22
State v. Smith, 269 Neb. 773, 696 N.W.2d 871 (2005).
23
Id. at 777, 696 N.W.2d at 878.
24
State v. Smith, supra note 22.
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relief. 25 The court clerk certified that a copy of that dismissal
was sent to the State and to the defendant. We held that while
the law presumes that a public officer will faithfully per-
form his or her official duties and that a letter, once properly
mailed, will reach its addressee, both are presumptions that
can be overcome by the showing of evidence to the contrary.
Under the circumstances, we concluded that the defendant
was entitled to an evidentiary hearing to offer proof of his
allegation.
In Jones, the defendant failed to file a timely appeal from
a district court’s order denying his motion for postconviction
relief. 26 The defendant alleged that he attempted to appeal the
denial and that he deposited his paperwork with prison officials
before the 30-day deadline. But he asserted that due to the neg-
ligent acts of the officials, his paperwork did not arrive to the
court in a timely manner. We held that the defendant alleged a
claim of official negligence sufficient to entitle him to a hear-
ing under Parnell.
[5] Although Smith, Parnell, and Jones may seem procedur-
ally similar to Brown’s situation, the basis of Brown’s claim
was fundamentally different. Brown did not attribute his delay
in filing to the negligence of court or prison officials. Brown
alleged that his appeal was lost due to his appointed counsel’s
negligence. Although at oral argument Brown argued that his
postconviction attorney was an “officer of the court,” the rela-
tionship between attorney and client is one of agency, and the
general agency rules of law apply to the relation of attorney
and client. 27 Here, Brown was the principal and postconviction
counsel was his agent.
[6] The loss of an appeal on collateral review due to postcon-
viction counsel’s negligence does not entitle the party seeking
25
State v. Parnell, supra note 2.
26
State v. Jones, supra note 2.
27
Thomas & Thomas Court Reporters v. Switzer, 283 Neb. 19, 810 N.W.2d
677 (2012).
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relief to the procedural remedy recognized when an appeal is
lost due to official negligence. Under Smith, mere concurring
negligence of an appellant’s agent is sufficient to preclude an
appeal. 28 Where negligence is attributed solely to an appellant’s
agent, the same outcome follows. We agree with the State that
the procedural remedy recognized in Parnell and Jones does
not apply in Brown’s situation. The Court of Appeals erred in
applying that remedy here.
Appointed Postconviction
Counsel’s Alleged Negligence
[7] We have previously held that where a defendant is
denied his or her right to a direct appeal because counsel fails
to perfect an appeal, the proper vehicle for the defendant to
seek relief is through the Nebraska Postconviction Act. 29 After
a trial, conviction, and sentencing, if counsel deficiently fails
to file or perfect an appeal after being so directed by the crimi-
nal defendant, prejudice will be presumed and counsel will be
deemed ineffective, thus entitling the defendant to postconvic-
tion relief. 30 The U.S. Supreme Court has held that a criminal
defendant has a constitutional right to effective assistance of
counsel in his or her first appeal as of right. 31
[8] But this procedural remedy is not available when counsel
fails to file an appeal in a postconviction proceeding. Brown’s
constitutional right to effective assistance of counsel ended
when the Court of Appeals decided his direct appeal. There is
no constitutional guarantee of effective assistance of counsel in
a postconviction action and therefore no claim for ineffective
28
State v. Smith, supra note 22.
29
See State v. Hess, 261 Neb. 368, 622 N.W.2d 891 (2001) (citing State v.
Trotter, 259 Neb. 212, 609 N.W.2d 33 (2000)).
30
Id. See, also, State v. Collins, 292 Neb. 602, 873 N.W.2d 657 (2016); State
v. Halsey, 195 Neb. 432, 238 N.W.2d 249 (1976).
31
See Halbert v. Michigan, 545 U.S. 605, 125 S. Ct. 2582, 162 L. Ed. 2d
552 (2005) (citing Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9
L. Ed. 2d 811 (1963)).
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assistance of postconviction counsel. 32 We express no opinion
regarding any other avenue for relief which might be available
to Brown.
No Abuse of Discretion in
Denying Reconsideration
[9] The Court of Appeals correctly distinguished an appeal
from the district court’s order denying reconsideration from an
appeal from the order denying postconviction relief. A motion
for reconsideration does not terminate the time for appeal and
is considered nothing more than an invitation to the court to
consider exercising its inherent power to vacate or modify
its own judgment. 33 The district court had jurisdiction to con-
sider the reconsideration motion, and the Court of Appeals
had jurisdiction to review denial of that motion for abuse of
discretion. 34
But the Court of Appeals erred in finding an abuse of dis-
cretion based upon Parnell and Jones. And here, there was no
other basis for doing so.
[10,11] Courts have the power to vacate or modify their own
judgments and orders at any time during the term at which
they were pronounced. But this power may not be used to cir-
cumvent the Legislature’s power to fix the time limit to take
an appeal. 35 A court may not vacate an order or judgment and
reinstate it at a later date just for the purpose of extending the
time for appeal. 36
[12] Here, Brown did not claim official negligence, and
the court had no power to vacate its denial of postconviction
relief merely for the purpose of extending the time for appeal.
32
State v. Hessler, supra note 14.
33
State v. Lotter, supra note 9.
34
See Rules of Dist. Ct. of Fifth Jud. Dist. 5-1 (rev. 2001) (term coextensive
with calendar year).
35
In re Interest of Luz P. et al., 295 Neb. 814, 891 N.W.2d 651 (2017).
36
Id.
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While the district court may have inaccurately described the
reconsideration motion as untimely, it could not have used that
motion as a vehicle to extend the time for appeal. Where the
record adequately demonstrates that the decision of a trial court
is correct, although such correctness is based on a ground or
reason different from that assigned by the trial court, an appel-
late court will affirm. 37 The Court of Appeals should have done
so here.
CONCLUSION
We conclude that Parnell and Jones do not apply in
Brown’s situation. The appropriate procedural remedy when
an appeal purportedly was lost due to an appointed counsel’s
actions is for the defendant to seek relief through the Nebraska
Postconviction Act. But that remedy is not available where
the claim is based on ineffective assistance of postconvic-
tion counsel. Because we conclude that the Court of Appeals
erred in its application of Parnell and Jones, we reverse its
decision and remand with direction to affirm the order of the
district court.
Reversed and remanded with direction.
37
State v. Grant, 310 Neb. 700, 968 N.W.2d 837 (2022). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487196/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/18/2022 09:05 AM CST
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IN RE INTEREST OF GUNNER B.
Cite as 312 Neb. 697
In re Interest of Gunner B., a child
under 18 years of age.
State of Nebraska, appellee, v.
Gunner B., appellant.
___ N.W.2d ___
Filed October 21, 2022. No. S-21-949.
1. Juvenile Courts: Appeal and Error. An appellate court reviews juve-
nile cases de novo on the record and reaches its conclusions indepen-
dently of the juvenile court’s findings. When the evidence is in conflict,
however, an appellate court may give weight to the fact that the lower
court observed the witnesses and accepted one version of the facts over
the other.
Appeal from the County Court for Otoe County: Robert B.
O’Neal, Judge. Affirmed.
Angela M. Minahan, of Reinsch, Slattery, Bear, Minahan &
Prickett, P.C., L.L.O., for appellant.
Jenniffer Panko-Rahe, Otoe County Attorney, and Seth W.
Hawkins for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
INTRODUCTION
The State of Nebraska filed a petition against the appellant,
Gunner B., alleging that he was a child within the meaning
of Neb. Rev. Stat. § 43-247(1) (Reissue 2016). The petition
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further alleged that Gunner had committed sexual assault in
the third degree against M.M. as that crime is set forth in Neb.
Rev. Stat. § 28-320(1) and (3) (Reissue 2016). Following an
adjudication hearing, the Otoe County Court, sitting as a juve-
nile court, entered an order finding that Gunner was a child
within the meaning of § 43-247(1). The case was set for dis-
position, and Gunner also moved for a new trial. The juvenile
court denied Gunner’s motion for new trial, and he appealed.
We moved this case to our docket. We affirm.
FACTUAL BACKGROUND
On September 22, 2020, the State filed a petition which
alleged that Gunner came within the meaning of § 43-247(1)
as a juvenile who has committed an act which would consti-
tute a misdemeanor, infraction, or violation of a city or village
ordinance and who was 11 years of age or older at the time
the act was committed. The petition also alleged that Gunner
had violated § 28-320(1) and (3) by subjecting M.M. to sexual
contact when he either knew or should have known that M.M.
was physically or mentally incapable of resisting or appraising
the nature of such conduct.
A hearing was held on the matter on September 16, 2021.
The evidence presented showed that M.M. is the daughter of
Tia T. and Nicholas M. M.M.’s precise date of birth is not
evident from the record. However, it appears that at the time
of the proceedings in this case, M.M. was 6 years old, but had
been 5 years old in July 2020, when the alleged event occurred.
Gunner is Tia’s half brother. Again, the record is not perfectly
clear, but it seems that Gunner was 15 years old at the time of
these events and was 16 years old at the time of the adjudica-
tion hearing.
On July 31, 2020, Nicholas arrived at the home of Cheryl S.,
the mother of both Gunner and Tia, to pick up M.M. After call-
ing out M.M.’s name and not getting a response, Nicholas went
into the basement to look for M.M. According to Nicholas,
Gunner was sitting on the floor with his legs over M.M.’s legs,
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rubbing M.M.’s vagina with his fingers. According to Nicholas,
an erection was visible through Gunner’s shorts. Nicholas left
with M.M. and later took her to a hospital for a sexual assault
examination. The report showed no male DNA or semen, and
M.M. did not make any statements against Gunner at any point
during these proceedings.
Gunner testified and denied touching M.M. in a sexual man-
ner. Gunner claimed that M.M. was urinating into the floor
drain at the time Nicholas entered the basement. Gunner also
testified that Nicholas smelled of marijuana and was acting
erratically when he left the house with M.M.
Tia testified that she had been in a relationship with Nicholas
for about 9 years and that both she and Nicholas had dealt with
addiction prior to meeting each other. After they began dating,
Tia and Nicholas decided to get sober together. While the two
have largely refrained from any use of methamphetamine since
2013, they both continue to drink on occasion. According to
Tia, Nicholas had a brief relapse during their relationship and
admitted to smoking marijuana at his grandfather’s funeral.
The two had also previously shared a “THC . . . vaping pen”
with friends at a backyard get-together.
Cheryl testified that M.M. has a history of urinating into
the floor drain in the basement bathroom of Cheryl’s home
and that M.M. continued this behavior despite having been
reprimanded for doing so in the past. Cheryl testified that after
Nicholas left her home with M.M. on the day of the incident,
Gunner called to tell her what happened and explained that
M.M. had been urinating into the floor drain. Cheryl also testi-
fied that a few days prior to the July 2020 incident, Nicholas
had smelled of marijuana and Cheryl had asked him to leave
her home.
On September 28, 2021, the juvenile court issued an
order finding that Gunner was a child within the meaning
of § 43-247(1). The juvenile court scheduled a dispositional
hearing for December 2021. Gunner moved for a new trial
in October 2021, arguing that the decision was not sustained
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by sufficient evidence. Gunner’s motion was denied by the
juvenile court on October 28. Gunner appeals from the court’s
adjudication order. 1 According to statements made at oral argu-
ment in this case, Gunner’s dispositional hearing had not yet
been held.
ASSIGNMENTS OF ERROR
Gunner has assigned, restated and renumbered, that the
juvenile court erred in finding that he subjected M.M. to sexual
contact because the evidence presented at trial was insufficient
to (1) prove that M.M. was mentally or physically incapable of
resisting or appraising the nature of the conduct or that Gunner
knew or should have known of that lack of capacity, (2) prove
sexual arousal or gratification of either party, and (3) support a
finding of guilt beyond a reasonable doubt.
STANDARD OF REVIEW
[1] An appellate court reviews juvenile cases de novo on
the record and reaches its conclusions independently of the
juvenile court’s findings. 2 When the evidence is in conflict,
however, an appellate court may give weight to the fact that the
lower court observed the witnesses and accepted one version of
the facts over the other. 3
ANALYSIS
M.M.’s Mental or Physical Capacity
Gunner first assigns that the State failed to prove, beyond
a reasonable doubt, that he knew or should have known that
1
See In re Interest of Jedidiah P., 267 Neb. 258, 673 N.W.2d 553 (2004).
See, also, In re Interest of Jordan B., 300 Neb. 355, 913 N.W.2d 477
(2018); In re Interest of Ashley W., 284 Neb. 424, 821 N.W.2d 706 (2012);
In re Interest of C.H., 277 Neb. 565, 763 N.W.2d 708 (2009); In re Interest
of Tyler F., 276 Neb. 527, 755 N.W.2d 360 (2008); In re Interest of Jeffrey
K., 273 Neb. 239, 728 N.W.2d 606 (2007); In re Interest of M.L.S., 234
Neb. 570, 452 N.W.2d 39 (1990).
2
In re Interest of K.M., 299 Neb. 636, 910 N.W.2d 82 (2018).
3
Id.
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M.M. was mentally or physically incapable of resisting or
appraising the nature of the conduct as set forth in § 28-320(1).
In In re Interest of K.M., 4 this court discussed the lack-of-
capacity defense under Neb. Rev. Stat. § 28-319(1)(b) (Reissue
2016) that a defendant “knew or should have known that the
victim was mentally or physically incapable of resisting or
appraising the nature of his or her conduct.” The language at
issue in In re Interest of K.M. is nearly identical to the lan-
guage of § 28-320(1)(b), which is at issue here.
In In re Interest of K.M., we held that
to prove a lack-of-capacity sexual assault on the basis of a
mental impairment . . . the State must prove beyond a rea-
sonable doubt that the victim’s impairment was so severe
that he or she was “mentally . . . incapable of resisting” or
“mentally . . . incapable of . . . appraising the nature of”
the sexual conduct with the alleged perpetrator. 5
We further held that while expert testimony was admissible,
and might in some circumstances be necessary, it was not
required in each case. 6
The State argues that it presented sufficient evidence when it
produced evidence that M.M. was only 5 to 6 years old. While
acknowledging the absence of Nebraska case law holding that
“young age alone can satisfy the incapable element,” 7 the State
directs this court to decisions holding as much in other juris-
dictions, highlighting the Pennsylvania Supreme Court’s case
in Com. v. Rhodes. 8
In Rhodes, a Pennsylvania statute criminalized sexual
intercourse with any person “‘who is so mentally deranged
or deficient that such person is incapable of consent’” 9—which
4
Id.
5
Id. at 646, 910 N.W.2d at 89.
6
See In re Interest of K.M., supra note 2.
7
Brief for appellee at 11.
8
Com. v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986).
9
Id. at 544, 510 A.2d 1220.
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IN RE INTEREST OF GUNNER B.
Cite as 312 Neb. 697
language is similar to Nebraska’s defense under § 28-320(1)(b)
as interpreted by this court in In re Interest of K.M. The
Pennsylvania Supreme Court found that age fit within this
definition and concluded that, as a matter of law, an 8-year-old
child was “‘so mentally deficient,’ . . . that she was incapable
of consenting to an act whose nature she could not appreciate
or comprehend.” 10
Other courts have come to conclusions similar to the one
made by the Rhodes court, finding that young children are
incapable of understanding the nature of sexual conduct as a
matter of law and, further, that the view that underage chil-
dren cannot legally consent to sex comes from the common
law. 11 Along the same lines, the U.S. Court of Appeals for the
Seventh Circuit has observed that “[c]ertainly, many children,
and indisputably all children under a certain age, are incapable
of appraising the nature of sexual conduct.” 12
We agree with this reasoning. We find that common sense
alone establishes that a child of 5 or 6 years of age is among
those that are “indisputably” under an age when children are
capable of appraising the nature of sexual conduct. 13 Moreover,
we note that the Legislature has generally acknowledged that
children under a certain age simply lack capacity to understand
or be responsible for their actions. 14 Accordingly, we hold that
the State adequately proved in this case that M.M. was men-
tally incapable of appraising the nature of the sexual conduct
at issue.
We need not, and therefore do not, establish in this case any
particular age under which a child is incapable of appraising
the nature of sexual conduct. Consequently, to the extent the
State attempts to establish in future cases that an older alleged
10
Id. at 559, 510 A.2d at 1228.
11
In re B.W., 313 S.W.3d 818 (2010) (collecting cases).
12
U.S. v. Walker, 931 F.3d 576, 582 (7th Cir. 2019) (emphasis supplied).
13
See id.
14
See § 28-320(1)(b).
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IN RE INTEREST OF GUNNER B.
Cite as 312 Neb. 697
child victim was incapable of appraising the nature of sexual
conduct, it may be advisable to adduce evidence regarding the
development and understanding of that particular child.
We therefore turn to the question of whether Gunner knew
or should have known of this lack of capacity. Gunner testi-
fied that he knew M.M. as his niece, or as the daughter of
his sister, and his testimony confirmed that he was aware of
her age. Gunner also indicated that he had previously babysat
M.M. for Tia. When asked if he had touched M.M. in the way
alleged by the petition, Gunner replied that he would “never”
do that, suggesting that he was aware that such behavior was
not acceptable.
We therefore conclude that Gunner should have known that
M.M. was mentally incapable of resisting or appraising the
nature of Gunner’s conduct. This assignment of error is with-
out merit.
Evidence of Sexual Arousal
or Gratification
Gunner next assigns the evidence was insufficient to estab-
lish that he touched M.M. for the purpose of sexual arousal
or gratification. As used in § 28-320, sexual contact “includes
only such conduct which can be reasonably construed as being
for the purpose of sexual arousal or gratification of either
party.” 15
Gunner centers his argument on In re Interest of Kyle O., 16
a 2005 case wherein the Nebraska Court of Appeals explained
in detail what type of evidence or circumstances must be
considered by a court in determining whether a minor’s con-
duct can be reasonably construed as being for the purpose of
sexual arousal or gratification. Gunner contends that the State
failed to present any evidence related to Gunner’s age or matu-
rity and that thus, per the standards laid out in In re Interest
15
See Neb. Rev. Stat. § 28-318(5) (Supp. 2019) (emphasis supplied).
16
In re Interest of Kyle O., 14 Neb. App. 61, 703 N.W.2d 909 (2005).
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IN RE INTEREST OF GUNNER B.
Cite as 312 Neb. 697
of Kyle O., the court cannot have reasonably inferred that
Gunner’s actions were intended to sexually gratify or arouse
either M.M. or himself.
In In re Interest of Kyle O., a 14-year-old child, Kyle O.,
was adjudicated under § 43-247 for sexual contact with a
5-year-old child, S.S., in violation of § 28-320. 17 A witness
observed Kyle standing outside with S.S. and three other
children. Kyle then pulled down S.S.’ pants and grabbed S.S.’
penis to show the other children “‘how small it was.’” 18 At
trial, the witness was asked whether it looked like the contact
was for sexual gratification, and the witness responded that he
did not know. 19
On appeal, Kyle asserted that the evidence was insufficient
to establish whether sexual contact had occurred, because there
was no evidence that Kyle had touched S.S.’ penis for sexual
gratification. The Court of Appeals reversed the adjudication
and remanded the cause with directions to dismiss, finding
that there was no evidence that Kyle was sexually aroused and
that yet, “[i]t would be very easy to construe Kyle’s conduct
as being for the purpose of humiliating, bullying, or annoy-
ing S.S.” 20
We find In re Interest of Kyle O. inapplicable. In that case,
there was no evidence regarding sexual arousal. But here, the
State presented, and the court found credible, testimony from
Nicholas that Gunner had an erection visible through his cloth-
ing while touching M.M.’s vagina.
After observing the witnesses and hearing their testimony,
the juvenile court accepted Nicholas’ version of the facts over
Gunner’s version, a credibility determination to which we defer
on appeal. Nicholas’ testimony showed that Gunner was vis-
ibly aroused at the time he was touching M.M. As such, his
17
Id.
18
Id. at 63, 703 N.W.2d at 911.
19
In re Interest of Kyle O., supra note 16.
20
Id. at 72, 703 N.W.2d at 918.
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IN RE INTEREST OF GUNNER B.
Cite as 312 Neb. 697
actions could reasonably be construed as being for his own
sexual arousal or gratification. We find this assignment of error
without merit.
Sufficiency of Evidence
Finally, Gunner assigns that even when viewed in a light
most favorable to the prosecution, the State’s evidence and
witnesses do not eliminate reasonable doubt as to whether
Gunner committed a sexual assault in the third degree against
M.M. because the State’s evidence either lacked credibility or
conflicted with other credible evidence presented by Gunner.
Gunner argues that Nicholas’ testimony, in which he stated
that he saw the assault occur, directly conflicts with Gunner’s
own testimony, where Gunner denied touching M.M. in a
sexual manner. Gunner also argues that Nicholas’ testimony
is in conflict with his own prior statements because Nicholas
testified that he saw Gunner touching M.M. in a sexual manner
and that an erection was visible through Gunner’s shorts at the
time. But when Nicholas texted Cheryl immediately following
the incident, he did not mention that Gunner had an erection
and also did not include this piece of information in his state-
ment to police.
The standard of review for juvenile cases is de novo on the
record; however, when evidence is in conflict, this court may
give weight to the fact that the lower court observed the wit-
nesses and accepted one version of the facts over the other. 21
Here, the juvenile court found that Nicholas’ testimony
regarding what happened and what he witnessed firsthand
was more credible than either Gunner’s version of events or
Cheryl’s testimony. Nicholas stated that he saw Gunner touch-
ing M.M.’s sexual or intimate parts. He testified to factors
that would indicate Gunner was committing this act for sexual
arousal or gratification, as evidenced by Nicholas’ testimony
that Gunner had a visible erection while touching M.M. While
21
See In re Interest of K.M., supra note 2.
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IN RE INTEREST OF GUNNER B.
Cite as 312 Neb. 697
Nicholas’ testimony was directly contradicted by Gunner, the
juvenile court observed the witnesses and accepted one version
of the facts over the other. We give weight to the court’s obser-
vations and determinations, and when viewed in this light, the
evidence is sufficient to prove Gunner’s guilt beyond a reason-
able doubt. This assignment of error is without merit.
CONCLUSION
We affirm the decision of the juvenile court.
Affirmed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487179/ | USCA11 Case: 20-13469 Date Filed: 11/18/2022 Page: 1 of 29
[PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 20-13469
____________________
CARLOS PADILLA,
Plaintiff-Appellant,
versus
VINCENTA BONET SMITH,
BONET & SMITH, PC
Interested Parties-Appellees,
REDMONT PROPERTIES LLC,
REDMONT PROPERTIES EG LLC,
REDMONT PROPERTIES OF HOMEWOOD LLC,
FRED G. NUNNELLY, III,
USCA11 Case: 20-13469 Date Filed: 11/18/2022 Page: 2 of 29
2 Opinion of the Court 20-13469
RM MANAGEMENT, LLC,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Northern District of Alabama
D.C. Docket No. 2:17-cv-01826-MHH
____________________
Before ROSENBAUM, TJOFLAT, Circuit Judges, and STEELE,* District
Judge.
TJOFLAT, Circuit Judge:
The controversy in this case is rooted in the propriety of a
lawyer charging a wage earner a contingent attorney’s fee for pros-
ecuting the wage earner’s Fair Labor Standards Act (“FLSA”)
claims in a U.S. District Court. The wage earner paid the contin-
gent fee and then sued his lawyer in Alabama state court to recover
part of the fee. That court stayed the action so the wage earner and
his lawyer could present the attorney’s fee controversy to the Dis-
trict Court that had presided over the FLSA case. They did so, fil-
ing motions the District Court lacked subject matter jurisdiction to
* The Honorable John Steele, United States District Judge for the Middle Dis-
trict of Florida, sitting by designation.
USCA11 Case: 20-13469 Date Filed: 11/18/2022 Page: 3 of 29
20-13469 Opinion of the Court 3
entertain. At the end of the day, the District Court found the con-
tingent fee excessive, ordered the lawyer to return the attorney’s
fee, and dismissed the proceeding as moot. This appeal followed.
We dismiss the appeal because the District Court lacked subject
matter jurisdiction.
I.
A.
Carlos Padilla believed his employer owed him back wages
and overtime. He spoke with an attorney, Vicenta Bonet-Smith,
who agreed. On October 30, 2017, she filed a collective action 1
complaint on behalf of Padilla and similarly situated employees in
the United States District Court for the Northern District of Ala-
bama, alleging a claim against Redmont Properties, LLC, Redmont
Properties E.G., LLC, Redmont Properties of Homewood, LLC,
and Fred G. Nunnelly III. In the complaint, Padilla sought relief in
the form of unpaid wages, unpaid overtime, and liquidated dam-
ages, as well as statutory attorney’s fees, under the FLSA, 29 U.S.C.
§ 201, et seq. Prior to filing the lawsuit, on June 23, 2017, Padilla
signed an Attorney-Client Retainer Agreement with Bonet &
1 A FLSA collective action is different from a Rule 23 class action because in a
class action, each person within the class description is considered a class mem-
ber and is bound by the judgment unless they have opted out of the suit; in a
collective action, however, no person is bound by the judgment unless they
have affirmatively opted into the action by giving written, filed consent. Cal-
derone v. Scott, 838 F.3d 1101, 1103–04 (11th Cir. 2016); 29 U.S.C. § 216(b).
USCA11 Case: 20-13469 Date Filed: 11/18/2022 Page: 4 of 29
4 Opinion of the Court 20-13469
Smith, P.C. Padilla agreed that he would pay Bonet & Smith 40%
of any recovery as an attorney’s fee if his claims were settled before
filing suit and that he would pay Bonet & Smith 45% of any recov-
ery if suit was filed.
Three months after filing the complaint, Bonet-Smith filed a
first amended complaint adding RM Management, LLC as a de-
fendant.2 In addition to the FLSA collective action claim, Padilla
brought claims against Redmont for employment discrimination
under both Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e, et seq., and the Civil Rights Act of 1866, as amended, 42
U.S.C. § 1981. 3
On March 6, 2018, Padilla sought leave to file a second
amended complaint adding Demetrio Padilla (“D. Padilla”) and
Jorge Ortiz as named plaintiffs in the FLSA collective action and
2 Hereinafter, all defendants are collectively referred to as “Redmont.”
3 This first amended complaint, however, was not filed in compliance with
Fed. R. Civ. P. 15(a) because Bonet-Smith never requested leave to file an
amended complaint from the District Court. Rule 15(a) allows one amend-
ment as a matter of course within 21 days of serving the complaint or within
21 days of receipt of a responsive pleading. Otherwise, a party must seek leave
from the court. Padilla’s initial complaint was filed on October 30, 2017; Red-
mont’s answers were filed on December 7, 2017. The first amended complaint
was not filed until January 31, 2018—well outside the 21-day window. Red-
mont filed a motion to strike the first amended complaint for this reason. Be-
cause, as discussed above, Padilla requested—and the District Court granted—
leave to file a second amended complaint, which would become the operative
pleading, the District Court denied Redmont’s motion to strike as moot.
USCA11 Case: 20-13469 Date Filed: 11/18/2022 Page: 5 of 29
20-13469 Opinion of the Court 5
asserting claims for employment discrimination.4 The District
Court granted this motion, but ordered the plaintiffs to file their
second amended complaint as a separate docket entry. Based on
the wording of the District Court’s order, it is clear the Court’s in-
tent was that the second amended complaint would not be opera-
tive until it was separately filed. 5 Because Bonet-Smith never filed
it, the second amended complaint was not properly before the Dis-
trict Court.6
Each of the three plaintiffs and Redmont subsequently en-
tered into two separate agreements—for a total of six separate
agreements. For each plaintiff, one agreement would settle the
plaintiff’s FLSA claims, and one would settle his employment dis-
crimination claims. 7 Under Padilla’s FLSA settlement agreement,
4 Many documents in the record refer to the “nonFLSA” claims and “non-
FLSA” settlement. This opinion uses the terms “Title VII and § 1981” and
“employment discrimination” instead of “nonFLSA.”
5 The order stated: “On or before April 5, 2018, the plaintiffs shall file as a
separate docket entry their second amended complaint . . . . Because the plain-
tiffs’ second amended complaint will become the operative pleading, the
Court denies as moot the defendants’ motion to strike the plaintiffs’ amended
complaint.” Doc. 30 (emphasis added).
6 However, by subsequently approving Redmont’s settlement of the three
plaintiffs’ FLSA claims pursuant to the parties’ joint motion for settlement ap-
proval, as discussed infra, the District Court tacitly accepted the second
amended complaint as properly before the Court.
7 The total amount of the settlements was $345,868.54, $70,868.54 of which
Redmont paid Ortiz and D. Padilla for their FLSA claims before they retained
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6 Opinion of the Court 20-13469
executed on April 26, 2018, Redmont would pay Padilla $65,660.78,
minus applicable taxes and withholdings, for claimed unpaid
wages, unpaid overtime wages, and liquidated damages. In addi-
tion, Redmont would pay Bonet & Smith $2,666.67 for attorneys’
fees and costs in prosecuting Padilla’s FLSA claims.
On the same day, Padilla and Redmont executed a confiden-
tial general release and settlement for Padilla’s employment dis-
crimination claims, which were settled for a total of $109,339.22.
The settlement was divided as follows: (1) $10,000, minus applica-
ble taxes and withholdings, would be paid to Padilla for claimed
benefits; (2) $20,589.22, with no taxes or withholdings applied, cov-
ered claimed compensatory and emotional distress damages; and
(3) $78,750.00 would be paid to Bonet & Smith for claimed attor-
neys’ fees and costs, with no taxes or withholdings applied.
Thereafter, on May 3, 2018, the plaintiffs and Redmont
jointly moved the District Court to approve the terms of the their
agreements to settle their FLSA claims and to dismiss the action
with prejudice pursuant to Fed. R. Civ. P. 41(a)(2). 8 While the joint
Bonet & Smith as counsel. Of the remaining $275,000, $175,000 was to be paid
to Padilla for his FLSA and employment discrimination claims and $50,000 was
to be paid to Ortiz and D. Padilla each for their discrimination claims. The
agreement included an additional $8,000 for Bonet-Smith’s FLSA attorney’s
fee. The $2,666.67 attorney’s fee discussed as part of Padilla’s FLSA settlement
was one-third of the overall $8,000 attorney’s fee Bonet-Smith received for the
FLSA claim.
8 The joint motion for approval was necessary because, unlike most claims, a
FLSA claim can only be settled by (1) a payment supervised by the Department
USCA11 Case: 20-13469 Date Filed: 11/18/2022 Page: 7 of 29
20-13469 Opinion of the Court 7
motion mentioned that the parties had reached agreements to set-
tle all of the plaintiffs’ claims against Redmont, the motion was si-
lent as to the terms of the agreements to settle the plaintiffs’ Title
VII and § 1981 claims.
On May 30, 2018, Padilla and Redmont executed an adden-
dum to the agreement settling Padilla’s employment discrimina-
tion claims. They agreed that to the extent the District Court ap-
proved a FLSA attorney’s fee above $2,666.67, Bonet & Smith
would refund to Redmont from the $78,750 paid to Bonet & Smith
the difference between the fee approved by the District Court and
$2,666.67—in other words, Bonet & Smith would reduce its fee un-
der the employment discrimination settlement by such amount.
Because the settlements and dismissal of the Title VII and
§ 1981 claims did not require court approval, while the parties’ joint
motion was pending with the District Court, the plaintiffs and Red-
mont filed a joint stipulation dismissing all plaintiffs’ employment
of Labor under 29 U.S.C. § 216(c) or (2) by “a stipulated judgment entered by
a court which has determined that a settlement proposed by an employer and
employees, in a suit brought by employees under the FLSA, is a fair and rea-
sonable resolution of a bona fide dispute over FLSA provisions.” Lynn’s Food
Stores, Inc. v. United States, 679 F.2d 1350, 1355 (11th Cir. 1982).
USCA11 Case: 20-13469 Date Filed: 11/18/2022 Page: 8 of 29
8 Opinion of the Court 20-13469
discrimination claims with prejudice pursuant to Fed. R. Civ. P.
41(a)(1)(A)(ii) 9 on May 31, 2018. 10
The District Court issued an order acknowledging that the
parties filed a joint motion for approval of their FLSA settlement
on October 5, 2018. The Court indicated it was in the process of
drafting an order approving the joint motion with a few changes.
The District Court would entertain objections to its amended ver-
sion of the FLSA settlement until October 12, 2018. 11
9 The rule reads: “Subject to Rules 23(e), 23.1(c), and 66 and any applicable
federal statute, the plaintiff may dismiss an action without a court order by
filing . . . (ii) a stipulation of dismissal signed by all parties who have appeared.”
Fed. R. Civ. P. 41(a)(1)(A)(ii) (emphasis added). A stipulation filed pursuant to
this subsection is self-executing and dismisses the action upon becoming effec-
tive—a district court may not act after the stipulation becomes effective be-
cause the stipulation, once effective, divests the district court of jurisdiction.
Anago Franchising, Inc. v. Shaz, LLC, 677 F.3d 1272, 1278 (11th Cir. 2012).
10 The parties’ stipulation of dismissal of the Title VII and § 1981 claims, how-
ever, had no legal effect because it did not dismiss the action. And “[t]his Court
has made abundantly clear that a Rule 41(a)(1) voluntary dismissal disposes of
the entire action, not just some of the plaintiff’s claims.” Absolute Activist
Value Master Fund Ltd. v. Devine, 998 F.3d 1258, 1265 (11th Cir. 2021) (em-
phasis in original).
11 The only change the District Court made to the FLSA settlements was that
it limited the enforceability of a provision allowing the settlement agreements
to be introduced as a complete defense to any claims existing as of the date of
the FLSA agreement that the plaintiff could have asserted against Redmont.
The Court found that language too broad and limited it to FLSA claims exist-
ing as of the date of the FLSA settlement agreement, not all claims.
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20-13469 Opinion of the Court 9
On November 30, 2018, the District Court issued a memo-
randum opinion approving the parties’ proposed FLSA settle-
ment—Padilla’s settlement consisting of $65,660.78, minus applica-
ble taxes and withholdings, and $2,666.67 in attorney’s fees.12 The
District Court approved the FLSA settlements without a hearing,
based solely on the parties’ submissions. The Court then issued an
order dismissing the action with prejudice and asking the Clerk to
close the file.13
As per the terms of the settlement agreements, Padilla re-
ceived the following payments from Redmont: $45,962.55 for the
FLSA settlement ($65,660.78 less $19,698.23 in taxes and withhold-
ings), $20,589.22 for compensatory and emotional distress damages
caused by the employment discrimination, and $7,000 for benefits
deprived by the employment discrimination ($10,000 less $3,000 in
taxes and withholdings).
B.
Prior to the District Court’s approval of the FLSA settle-
ments and its dismissal of the action, Padilla, apparently dissatisfied
12 As mentioned above, in approving the FLSA settlement with the two addi-
tional named plaintiffs, Ortiz and D. Padilla, the District Court implicitly
found the second amended complaint to be operative.
13 Because the parties’ stipulation of dismissal was not effective, the effect of
this order on the Title VII and § 1981 claims was that it dismissed them with
prejudice. This left the parties with separate settlement agreements that dis-
posed of the employment discrimination claims without court intervention.
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10 Opinion of the Court 20-13469
with Bonet-Smith’s representation and concerned with the amount
of his recovery under his settlement agreements, contacted attor-
ney Freddy Rubio of Rubio Law Firm on or about August 6, 2018.
He did so without informing Bonet-Smith.
Following the entry of the District Court’s order approving
the FLSA settlements, on January 14, 2019, Rubio Law Firm wrote
Bonet & Smith, claiming that the firm owed Padilla $29,550.35. 14
The letter argued that while Padilla’s retainer agreement with
Bonet & Smith covered both the FLSA and employment discrimi-
nation claims, the District Court did not approve a 45% attorney’s
fee for the FLSA claim—it approved $2,666.67. The letter claimed
that Bonet & Smith improperly calculated their fee based on either
(1) a 45% attorney’s fee from Padilla’s $175,000.00 global FLSA, Ti-
tle VII, and § 1981 settlement, or (2) a 72% fee from Padilla’s
$109,339.22 Title VII and § 1981 settlement. 15
Bonet & Smith responded on January 28, 2019, claiming that
Rubio had been improperly giving legal advice to Padilla and that
14 The letter is mistakenly dated January 14, 2018.
15 Under the retainer agreement, Bonet & Smith was entitled to receive 45%
of the $65,660.78 sum that Padilla received for the settlement of his FLSA
claims, which would be $29,547.35. In essence, in his letter to Bonet & Smith,
Rubio argued that in executing the agreement that settled Padilla’s FLSA
claim, Padilla and Bonet & Smith effectively amended the retainer agreement
such that Bonet & Smith would not receive 45% of Padilla’s FLSA recovery
but $2,666.67, the fee the District Court approved.
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20-13469 Opinion of the Court 11
he had been “secretly enticing Mr. Carlos Padilla behind [Bonet &
Smith’s back] for several months.” Letter from Bonet & Smith to
Rubio Law Firm (Jan. 28, 2019), Doc. 38-9. Bonet & Smith also
stated that Padilla received the maximum FLSA dollar amount, re-
gardless of how the settlement was structured, and that Padilla
signed all the documents and knew what the terms were.
Following a lack of resolution by Bonet & Smith, Padilla,
now represented by Rubio Law Firm, filed suit against Bonet &
Smith in the Circuit Court of Jefferson County, Alabama, to re-
cover $29,520.35. Padilla argued that Bonet & Smith breached
their retainer agreement with him or, in the alternative, obtained
unjust enrichment. With respect to the breach of contract claim,
the complaint alleged that there was a valid and binding contract—
the retainer agreement—between Padilla and Bonet & Smith
whereby Bonet & Smith would receive 45% of any recovery if a
lawsuit was filed, and that Bonet & Smith breached that contract
when it retained more than 45% of the employment discrimination
settlement. 16 Regarding the unjust enrichment claim, the com-
plaint alleged that Bonet & Smith either (1) received a total of
$8,000.00 in legal fees 17 and costs for work related to the FLSA
16 That is, Bonet & Smith was entitled to 45% of Padilla’s $109,332.22 employ-
ment discrimination settlement, or $49,202.65 and they breached that agree-
ment by taking $78,750, or 72%.
17 This is the attorney’s fee negotiated as part of the FLSA settlements with
the three plaintiffs. Padilla’s portion of this fee was $2,666.67.
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12 Opinion of the Court 20-13469
claims and then retained an additional $29,520.35 for attorney fees
and costs related to the same claims, or (2) took 72% of the recov-
ery—an unreasonable and unjust fee—in the employment discrim-
ination settlement. 18
Bonet & Smith moved the Circuit Court to dismiss the com-
plaint, but the Circuit Court denied the motion. It stayed the case,
however, so the parties could present their dispute to the District
Court. The Circuit Court was concerned that it might encroach
on the District Court’s jurisdiction if it decided the breach of con-
tract and unjust enrichment claims.
On October 1, 2019, Bonet & Smith moved the District
Court to hold a hearing to resolve the fee dispute. Bonet & Smith
attached five documents to its motion: (1) the complaint Padilla
filed in the Circuit Court of Jefferson County; (2) Bonet & Smith’s
alternative state court motions to dismiss or for judgment on the
pleadings; (3) the Circuit Court’s order denying the motions; (4)
the contingency fee contract; and (5) a record of the hours Bonet-
Smith spent on the case.
18 Padilla is treating the retainer agreement as having been modified by the
court-approved settlement of his FLSA claim, such that instead of receiving an
attorney’s fee of 45% of Padilla’s FLSA settlement, or $29,547.35, Bonet-Smith
received $2,666.67. On the employment discrimination claims, then, Bonet-
Smith was entitled to receive 45% of $109,339.22, or $49,202.65, instead of 45%
of $175,000, or $78,750.
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20-13469 Opinion of the Court 13
In its motion for a hearing, Bonet & Smith stated that Pa-
dilla’s state law claims were based in part on the assumption that
contingency fee contracts, like the one it had with Padilla, were not
permissible under the FLSA. Bonet & Smith contended that in the
circumstances of the case, the 45% fee was appropriate and Padilla
agreed to pay it. Bonet & Smith asked the District Court to hold a
hearing to:
address the issues presented by Padilla’s complaint
and [the Circuit Court’s] Order in the State Court Ac-
tion. Furthermore, to the extent this Honorable
Court finds that a fairness hearing should be held to
address the reasonableness of the attorney’s fees
and/or disbursements made as to the total settlement
and recovery should be had, the undersigned counsel
welcomes such opportunity.
Mot. for Hr’g, Doc. 37 at 11. 19
In response to Bonet & Smith’s motion, Padilla filed a mo-
tion for relief from judgment pursuant to Fed. R. Civ. P. 60(b)(3),
19 In effect, Bonet & Smith was attempting to remove the litigation of the
attorney’s fee controversy from the Circuit Court to the District Court.
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14 Opinion of the Court 20-13469
60(b)(6), 20 and 60(d)(3) 21 on December 2, 2019. 22 Padilla’s motion
did not seek relief from the judgment he had obtained against Red-
mont (in the form of an order approving the FLSA settlement) on
the ground that Redmont had committed a fraud on the Court.
Redmont had done nothing wrong. Pursuant to the FLSA settle-
ment agreement the Court had approved, Redmont had paid Pa-
dilla the full amount of unpaid wages claimed: $65,660.78. What
Padilla sought was an order requiring Bonet & Smith to pay him
$29,547.35, based on a claim that Bonet & Smith had received an
excessive contingency fee of 72%, or $78,750, from the settlement
of his employment discrimination claims of $109,339.22, as op-
posed to a fee of 45%.
20 The pertinent text of Rule 60(b) reads: “On motion and just terms, the court
may relieve a party or its legal representative from a final judgment, order, or
proceeding for the following reasons: . . . (3) fraud (whether previously called
intrinsic or extrinsic), misrepresentation, or misconduct by an opposing party;
. . . or (6) any other reason that justifies relief.”
21 According to Rule 60(d): “This rule does not limit a court’s power to: . . .
(3) set aside a judgment for fraud on the court.”
22 All motions under Rule 60(b) must be made “within a reasonable time.”
Fed. R. Civ. P. 60(c)(1). In addition to the “reasonable time” requirement,
motions under Rule 60(b)(3) have a strict one-year deadline for filling. Id. Be-
cause November 30, 2019—one year from the day the District Court entered
the order of dismissal—was a Saturday, the motion filed on Monday, Decem-
ber 2, 2019 is considered to have been filed within that one year window. That
it was filed within one year of the final order, however, does not automatically
mean the motion was filed within a reasonable time for Rule 60(b) purposes.
USCA11 Case: 20-13469 Date Filed: 11/18/2022 Page: 15 of 29
20-13469 Opinion of the Court 15
Padilla’s Rule 60 motion alleged that Bonet & Smith ob-
tained the excessive contingency fee by defrauding the District
Court. The fraud was Bonet & Smith’s failure to reveal to the
Court the existence of the retainer agreement Padilla signed before
filing suit. This failure to disclose constituted “a misrepresentation
to[] the Court.” Mot. for Relief from J., Doc. 38 at 2.
In the motion’s “prayer for relief,” Padilla asked the District
Court to decide the issues presented in his action in the Circuit
Court of Jefferson County23 or, alternatively, to “allow[ ] the State
case to proceed.” 24
23 The prayer for relief asked the District Court to provide the relief Padilla
sought in the Circuit Court of Jefferson County including a “find[ing] that
Bonet & Smith improperly charged [him] a 45% contingency fee, contrary to
well-settled case law,” and an “order that Bonet & Smith reimburse Mr. Padilla
the amount charged as a contingency fee,” i.e., $29,547.35. Mot. for Relief
from J., Doc. 38 at 20. We interpret the first quotation as requesting the Dis-
trict Court to adhere to its November 30, 2018, order approving the FLSA set-
tlement and an attorney’s fee of only $2,666.67 for Bonet & Smith. We inter-
pret the second quotation as requesting the Court to order Bonet & Smith to
reimburse Padilla for the contingency fee it received pursuant to the agree-
ment settling the employment discrimination claims. The prayer for relief
also sought an award (against Bonet & Smith) of interest on the $29,547.35
reimbursement, a reasonable attorney’s fee for Rubio Law Firm for prosecut-
ing the action in the Circuit Court of Jefferson County and the Rule 60(b) mo-
tion, and a sanction against Bonet & Smith “as the Court deemed appropri-
ate.” Id. at 20–21.
24 The prayer for relief also asked the District Court to “modify the Final Or-
der entered on November 30, 2018,” which, as noted supra, approved Padilla
and Redmont’s joint motion for the approval of the FLSA settlement
USCA11 Case: 20-13469 Date Filed: 11/18/2022 Page: 16 of 29
16 Opinion of the Court 20-13469
Essentially, Padilla’s motion, like Bonet & Smith’s, at-
tempted to litigate the state court breach of contract and unjust en-
richment claims in the District Court. Padilla tried to use Rule 60
to avoid the retainer agreement and the settlement agreements
that he signed, but it is, for all intents and purposes, the same
breach of contract and unjust enrichment dispute in a different ve-
hicle. Padilla was asking the District Court to find that the settle-
ment agreement effectively amended the retainer agreement.
Bonet & Smith responded to Padilla’s Rule 60 motion on
December 10, 2019. Bonet & Smith claimed that the relief the mo-
tion sought was not available under Rule 60 because the motion
did not seek relief from a final judgment or order of the District
Court. Rather, the motion sought an order modifying the Padilla-
Redmont agreement, as amended, that settled Padilla’s employ-
ment discrimination claims on the ground that the $78,750 attor-
ney’s fee it awarded Bonet & Smith was excessive. As Bonet &
Smith stated in its response, “Padilla’s motion requests that the
Court make findings and impose liability as it relates to the con-
tractual relations between the attorney and client.” Resp. in Opp’n
to Mot. for Relief from J., Doc. 41 at 3. Bonet & Smith then argued
that even if the relief Padilla requested was theoretically available
under Rule 60, he failed to satisfy the Rule’s requirements.
agreement. The Rule 60 motion does not reveal the modification it sought;
thus, we disregard the motion’s request for a modification.
USCA11 Case: 20-13469 Date Filed: 11/18/2022 Page: 17 of 29
20-13469 Opinion of the Court 17
After receiving Bonet & Smith’s and Padilla’s motions, the
District Court held a telephone conference on December 11, 2019.
Bonet-Smith, Rubio, David Warren, counsel for Redmont, and
James Spinks, counsel for Bonet & Smith were all present at the
conference.25 After hearing from the lawyers, the District Court
concluded that it could not resolve the attorney’s fee controversy
without an evidentiary hearing and entered an order to that effect.
The evidentiary hearing took place on February 27, 2020.
Bonet-Smith testified that Bonet & Smith’s retainer agreement
with Padilla was made after she informed Padilla that he had bona
fide FLSA claims against Redmont. The agreement provided that
Bonet & Smith would receive a contingent fee of 45% of any re-
covery Padilla received if suit were filed.
Turning to the agreements she and Warren reached for the
settlement of Padilla’s, D. Padilla’s and Ortiz’s FLSA claims, Bonet-
Smith acknowledged that she would receive $2,666.67 (a total of
$8,000) as an attorney’s fee for representing each of the plaintiffs.26
25 At that hearing the Court indicated that it was trying to determine whether
the dispute was “purely a state court matter” or whether it was “pertinent to
[the] Court’s judgment.” Tel. Conf. Tr., Doc. 45 at 6-7. According to Warren,
the dispute in question was a breach of contract claim.
26 The settlement agreements with respect to Ortiz’s and D. Padilla’s employ-
ment discrimination claims are not in the record; therefore, we are unaware
of the attorney’s fee those plaintiffs agreed to pay Bonet & Smith for handling
those claims. We do know from Warren’s testimony at the hearing that those
USCA11 Case: 20-13469 Date Filed: 11/18/2022 Page: 18 of 29
18 Opinion of the Court 20-13469
Since $2,666.67 would not amount to 45% of Padilla’s recovery,
Bonet-Smith further acknowledged that to obtain a 45% contin-
gent fee for handling Padilla’s FLSA claims, the fee would have to
be paid as part of the settlement Padilla received for his employ-
ment discrimination claims. So, in drafting the agreement settling
those claims, Warren provided that Bonet & Smith would receive
$78,750 (45% of $175,000). Warren also testified at the hearing.
His testimony about the settlement agreements Padilla made with
Redmont essentially coincided with Bonet-Smith’s.
At the close of the evidentiary hearing, the District Court
stated:
The Court doesn’t know whether what happened
here is the consequence of poor lawyering that may
rise to the level of incompetent or of intentional mis-
representation to the Court. I think there are other
bodies that will have to sort through the record that
has been created here and make that determination.
The Court, however, believes it is necessary to set
aside the settlement agreement.
Evid. Hr’g Tr., Doc. 63 at 139.
Several months after the hearing concluded, on June 19,
2020, Bonet & Smith moved the District Court to modify its No-
vember 30, 2018, order approving the settlement of Padilla’s FLSA
two plaintiffs received $50,000 each in settlement of their discrimination
claims.
USCA11 Case: 20-13469 Date Filed: 11/18/2022 Page: 19 of 29
20-13469 Opinion of the Court 19
claims.27 Bonet & Smith requested that the Court approve its at-
torney’s fee (for handling those claims) of $29,547.35 (45% of Pa-
dilla’s $65,660.78 FLSA recovery, per the retainer agreement) and
reduce the amount of Padilla’s FLSA recovery by the same
amount. 28 In modifying the November 30, 2018, order in this way,
the Court would effectively modify the agreements that settled Pa-
dilla’s FLSA claims and Padilla’s employment discrimination
claims. In the alternative, Bonet & Smith asked the Court to re-
structure its retainer agreement with Padilla to provide for a FLSA
attorney’s fee pursuant to the lodestar approach in lieu of the
27 This motion, like Bonet & Smith’s earlier motion for a hearing, lacked a
legal foundation. It could not have had a foundation in law because Bonet &
Smith was not a party to the original dispute between Padilla and Redmont.
At best, Bonet & Smith’s motion could be classified as a third-party response
to Padilla’s motion for Rule 60 relief. The nature of Bonet & Smith’s motions
and the fact that, unless the Court modified the FLSA approval order, Red-
mont was for all intents and purposes irrelevant to the post-dismissal proceed-
ings, further underscores that the post-dismissal proceedings were an attempt
to litigate a state court action for breach of contract and unjust enrichment in
the District Court.
28 As part of this proposal, Bonet & Smith would refund Redmont the
$2,666.67 attorney’s fee Bonet & Smith received pursuant to Padilla’s FLSA
settlement. Padilla’s FLSA recovery of $66,660.78 would be decreased by
$29,547.35, and Padilla would receive $36,113.43. Bonet & Smith’s $78,750
attorney’s fee under the employment discrimination settlement would like-
wise be reduced by $29,547.35, making it $49,202.65. Essentially, Bonet &
Smith asked the District Court to retroactively approve what had already been
done. Aside from Bonet & Smith refunding $2,666.67 to Redmont, no other
money would change hands.
USCA11 Case: 20-13469 Date Filed: 11/18/2022 Page: 20 of 29
20 Opinion of the Court 20-13469
$2,666.67 attorney’s fee the Court had approved in its November
30, 2018, order. 29
On August 18, 2020, the District Court entered an order
denying Bonet & Smith’s June 19, 2020, motion for an amended
order of approval. In addition, the District Court sua sponte or-
dered Bonet & Smith to pay Padilla $29,547.35 of the fee it had re-
ceived in the settlement of Padilla’s discrimination claims.30 The
District Court ordered the payment because Bonet-Smith withheld
from the Court information about the 45% contingent attorney’s
fee (called for by the Padilla-Bonet & Smith retainer agreement)
when she and Warren submitted the joint motion to approve the
FLSA settlement to the Court for approval. 31 Because requiring
29 The lodestar approach calculates reasonable attorney’s fee “by multiplying
the number of hours reasonably expended on litigation times a reasonable
hourly rate.” ACLU of Ga. v. Barnes, 168 F.3d 423, 427 (11th Cir. 1999) (quot-
ing Blum v. Stenson, 465 U.S. 886, 888, 104 S. Ct. 1541, 1544 (1984)). The “fee
applicant bears the burden of establishing entitlement and documenting the
appropriate hours and hourly rates.” Norman v. Hous. Auth. of the City of
Montgomery, 836 F.2d 1292, 1303 (11th Cir. 1988). According to Bonet &
Smith’s records, Bonet & Smith attorneys expended 90.1 hours of billable time
on Padilla’s FLSA claim.
30 The $29,547.35 represented part of the attorney’s fee Bonet & Smith took
from the recovery Padilla received in settling his employment discrimination
claims.
31 The District Court cited nothing in Rule 60 or the cases applying Rule
60(b)(3), (b)(6) or (d)(3) authorizing the monetary payment the District Court
required Bonet & Smith to make. Nor did the Court draw on its inherent
power in requiring the payment.
USCA11 Case: 20-13469 Date Filed: 11/18/2022 Page: 21 of 29
20-13469 Opinion of the Court 21
Bonet & Smith to pay Padilla $29,547.35 made Padilla whole, the
District Court apparently concluded that Padilla’s motion for Rule
60 relief was moot, so on August 18, 2020, in a separate order, the
Court denied the motion for that reason.32
Padilla appeals the District Court’s order denying his Rule
60 motion as moot. Padilla contends that the controversy his Rule
60 motion created is not moot because the District Court failed to
consider his claims for (1) an attorney’s fee to be paid to Rubio Law
Firm for representing him in the action he brought in the Circuit
Court of Jefferson County and in prosecuting his Rule 60 motion
and (2) interest on the $29,547.35 Bonet & Smith must pay him.
He also appeals the part of the District Court’s order denying Bonet
& Smith’s June 19, 2020, motion that requires Bonet & Smith to
pay him $29,547.35 because the Court provided that he would have
to pay the attorney’s fee Rubio Law Firm would charge him out of
his own pocket.33
32 Nothing in Padilla’s Rule 60 motion sought this monetary relief as a Rule
60 remedy. What the motion sought was a resolution of the claims Padilla
was asserting in the action pending in the Circuit Court of Jefferson County.
33 The part of the District Court’s order requiring Bonet & Smith to pay Pa-
dilla states: “Mr. Padilla shall compensate his current counsel from the re-
funded amount.”
USCA11 Case: 20-13469 Date Filed: 11/18/2022 Page: 22 of 29
22 Opinion of the Court 20-13469
II.
Padilla appeals the order on the theory that the controversy
created by his Rule 60 motion is not moot.34 The motion sought
the recovery of a reasonable attorney’s fee for Rubio Law Firm for
its prosecution of both the breach of contract action in the Circuit
Court of Jefferson County and the Rule 60 motion. The motion
also sought interest on the $29,547.35 attorney’s fee Padilla paid
Bonet & Smith out of the recovery he had obtained on his employ-
ment discrimination claims. 35
It is important not to lose sight of the fact that Padilla’s Rule
60 motion requested relief against Bonet & Smith, not Redmont.
Padilla acknowledged that Redmont had paid him everything the
District Court’s order of approval required. Padilla’s position was
not that Redmont had committed a wrong that Rule 60 could rem-
edy, but that Bonet & Smith had received an excessive attorney’s
fee for litigating his discrimination claims.
34 Bonet & Smith, however, does not appeal the District Court’s order, in-
stead acknowledging “the Court’s power and discretion to effect its judgment
and [order the repayment of the fee].” Br. for Bonet & Smith, Appellate Doc.
36 at 14.
35 The $29,547.35 is the amount that Padilla alleged was improperly taken
from his employment discrimination settlement because it represented more
than the negotiated 45% contingency fee. He moved the District Court to
have Bonet & Smith pay interest on that amount beginning on November 30,
2018, the date of the final order of dismissal.
USCA11 Case: 20-13469 Date Filed: 11/18/2022 Page: 23 of 29
20-13469 Opinion of the Court 23
We have jurisdiction over Padilla’s appeal under 28 U.S.C §
1291 because it is the appeal of a final decision of a district court.
That post judgment order is final because it left nothing to do and
resolved all the issues in the post judgment motions. Mayer v. Wall
Street Equity Grp., Inc., 572 F.3d 1222, 1224 (11th Cir. 2012).
The issue the appeal expressly presents is a question of law that we
review de novo: whether Padilla’s Rule 60 motion is moot.36
Troiano v. Supervisor of Elections in Palm Beach Cnty., 382 F.3d
1276, 1282 (11th Cir. 2004).
Before we address that issue, however, we must determine
whether the District Court had subject matter jurisdiction to enter-
tain Padilla’s Rule 60 motion in the first place. 37 Mitchell v.
Maurer, 293 U.S. 237, 244, 55 S. Ct. 162, 165 (1934); see also Abso-
lute Activist Value Master Fund, Ltd. v. Devine, 998 F.3d 1258,
1264 (11th Cir. 2021). Just as we must be mindful as to whether we
have jurisdiction to entertain an appeal, Anago Franchising, Inc. v.
Shaz, LLC, 677 F.3d 1272, 1275 (11th Cir. 2012), we must also be
36 Sometimes whether an appeal is moot is a mixed question of law and fact,
in which case we review first the district court’s findings of fact for clear error.
Here, there is no dispute regarding the facts on which the District Court made
its mootness ruling.
37 If the District Court lacked subject matter jurisdiction to entertain Padilla’s
Rule 60 motion, we must dismiss this appeal and direct the District Court, on
receipt of our mandate, to dismiss the motion (which we refer to in the text
infra) for lack of jurisdiction.
USCA11 Case: 20-13469 Date Filed: 11/18/2022 Page: 24 of 29
24 Opinion of the Court 20-13469
mindful as to whether the trial court had jurisdiction of the contro-
versy before it.
The controversy before the District Court was, in essence,
the same controversy pending in the Circuit Court of Jefferson
County. In that court, the controversy was in the form of a com-
mon law action for breach of contract. In the District Court, that
controversy was presented in three separate motions. The first
motion was Bonet & Smith’s “Motion for a Hearing.” The second
motion was part of the relief prayed for in Padilla’s Rule 60 motion.
The third motion was Bonet & Smith’s motion to modify the Dis-
trict Court’s order approving the settlement of Padilla’s FLSA
claims to fix Bonet & Smith’s attorney’s fee at $29,547.35. In sub-
stance, all three motions are bound up in Padilla’s appeal of the
District Court’s order. The question is whether the District Court
had subject matter jurisdiction to entertain any of them. The an-
swer is no.
The first motion presented the same cause of action as the
one pending in the Circuit Court of Jefferson County, except that
the parties were reversed. In the Circuit Court, Padilla was the
movant. His theory was that the FLSA settlement agreement mod-
ified his contingency fee arrangement with Bonet & Smith in order
to provide that the attorney’s fee Bonet & Smith would receive for
handling his FLSA claims would be $2,666.67 instead of 45% of his
total FLSA recovery. In the District Court, Bonet & Smith was the
movant. It sought (in substance) a declaration that the FLSA set-
tlement agreement did not modify the contingency fee
USCA11 Case: 20-13469 Date Filed: 11/18/2022 Page: 25 of 29
20-13469 Opinion of the Court 25
arrangement and that it was entitled to receive 45% of Padilla’s
FLSA recovery.
Bonet & Smith’s motion for a hearing failed to invoke the
District Court’s subject matter jurisdiction. The motion did not
purport to remove the Jefferson County action to the District
Court under 28 U.S.C. § 1441, nor did it purport to serve as a com-
plaint for an independent action under the District Court’s federal
or diversity jurisdiction under 28 U.S.C. §§ 1331 or 1332. 38 The
District Court therefore did not have jurisdiction over the motion.
Our jurisdictional disposition of the first motion controls
our jurisdictional disposition of the third motion. The third motion
assumed that the District Court somehow retained jurisdiction
over Padilla’s FLSA claims after approving the FLSA settlement
agreement and entering an order dismissing the lawsuit with prej-
udice. The retained jurisdiction may have provided a basis for a
motion by either party, Padilla or Redmont, for modification of the
order approving the FLSA settlement agreement. But it could not
have provided the basis for a motion for modification brought by a
non-party to the FLSA action, such as Bonet & Smith. Indeed,
nothing in Bonet & Smith’s motion even purported to provide a
38 While district courts may award attorney’s fees in “independent proceed-
ings supplemental to the original proceeding” and such requests are not “for a
modification of the original decree,” Bonet & Smith did not seek additional
fees from Redmont. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 395, 110
S. Ct. 2447, 2455 (1990) (citation omitted).
USCA11 Case: 20-13469 Date Filed: 11/18/2022 Page: 26 of 29
26 Opinion of the Court 20-13469
legal foundation for its request to modify an agreement to which it
wasn’t a party.
The second motion, Padilla’s Rule 60 motion, if taken on its
face, would appear to have fallen within the District Court’s subject
matter jurisdiction. It didn’t, however, because Padilla filed the
motion solely for the purpose of having the District Court decide
the controversy he brought to the Circuit Court of Jefferson
County. We explain.
A Rule 60 motion seeks relief from a judgment or order. On
its face, that’s what Padilla’s motion sought—relief from the Dis-
trict Court’s order approving the FLSA settlement agreement. But
it didn’t. 39 The jurisdictional problem, though, is that the motion
didn’t seek relief from Padilla’s opposing party, Redmont, but from
a third party to the FLSA litigation, Bonet & Smith. We need look
no further than to the motion’s alternative prayers for relief to ap-
preciate that. First, the motion sought a declaration that Bonet &
Smith could receive nothing more than $2,666.67 as an attorney’s
fee for prosecuting Padilla’s FLSA claims and an order requiring
39 Rule 60 can only be used to set aside a prior order or judgment, not to grant
additional affirmative relief. United States v. One Hundred Nineteen Thou-
sand Nine Hundred Eighty Dollars, 680 F.2d 106, 107 (11th Cir. 1982). None
of the relief Padilla sought in his Rule 60 motion asked the District Court to
set aside its November 30, 2018, order approving the FLSA settlements and
dismissing the action—which was the only relief available under Rule 60. To
be sure, while Padilla didn’t seek more affirmative relief from Redmont—he
merely sought to reapportion his recovery—he also didn’t ask the settlement
with Redmont to be set aside.
USCA11 Case: 20-13469 Date Filed: 11/18/2022 Page: 27 of 29
20-13469 Opinion of the Court 27
Bonet & Smith to reimburse Padilla for the contingency fee it re-
ceived for handling the employment discrimination claims, i.e.,
$29,547.35. Alternatively, the motion asked the District Court to
allow Padilla to pursue his breach of contract action then pending
in the Circuit Court of Jefferson County. None of these requests
are within the scope of Rule 60.
Bell v. Hood, 327 U.S. 678, 66 S. Ct. 773 (1946), teaches that
a district court may dismiss a baseless “claim” under Rule 12(b)(6)
of the Federal Rules of Civil Procedure for failure to state a claim
for relief or under Rule 12(b)(1) for lack of subject matter jurisdic-
tion if the claim “clearly appears to be immaterial and made solely
for the purpose of obtaining jurisdiction or where such a claim is
wholly insubstantial and frivolous.” Id. at 682–83, 66 S. Ct. at 776;
see also Blue Cross & Blue Shield. v. Sanders, 138 F.3d 1347, 1352
(11th Cir. 1998). 40
A Rule 60 motion may be brought as “an independent ac-
tion,” Rule 60(d)(1), and thus as a “claim” the legal sufficiency of
which may be judged under Rule 12(b)(6). So, from a functional
point of view, Padilla’s Rule 60 motion, which sought relief under
Rule 60(b)(3), (b)(6), and (d)(3), was akin to an independent action
or claim. As such, Padilla’s motion was subject to being denied
40 A dismissal under Rule 12(b)(1) is without prejudice because the district
court lacked subject matter jurisdiction to adjudicate the controversy. A dis-
missal under Rule 12(b)(6) can be with prejudice (assuming the district court
does not give leave to replead).
USCA11 Case: 20-13469 Date Filed: 11/18/2022 Page: 28 of 29
28 Opinion of the Court 20-13469
under Rule 12(b)(6) for failure to state a claim for relief or under
Rule 12(b)(1) if it was “made solely for the purpose of obtaining
jurisdiction” or was “wholly insubstantial and frivolous.” Bell, 327
U.S. at 682–83, 66 S. Ct. at 776. Since Padilla brought his Rule 60
motion solely for the purpose of obtaining federal subject matter
jurisdiction over the attorney’s fee controversy, the motion failed
to invoke the District Court’s subject matter jurisdiction. 41
41 Dismissing a Rule 60 motion for lack of subject matter jurisdiction when it
is not a “true” Rule 60 motion—i.e. when the motion does not seek Rule 60
relief at all, or does not seek Rule 60 relief on one of the grounds listed in Rule
60—is consistent with what we do with Rule 60 motions in the context of ha-
beas proceedings. When a Rule 60 motion attacks the substance of the federal
court’s resolution of a petition’s claim on the merits, as opposed to a defect in
the integrity of the habeas proceeding, it is not truly a Rule 60 motion—it is a
successive habeas petition. Williams v. Chatman, 510 F.3d 1290, 1294 (11th
Cir. 2007) (quoting Gonzalez v. Crosby, 545 U.S. 524, 532, 125 S. Ct. 2641, 2648
(2005)). When a Rule 60 motion qualifies as a second or successive habeas
petition, it must comply with the requirements of such petitions. Id. at 1294.
If it doesn’t, the district court lacks jurisdiction to entertain it. See, e.g., Boone
v. Sec’y., Dep’t of Corr., 377 F.3d 1315, 1317 (11th Cir. 2004) (per curiam)
(holding that the district court lacked subject matter jurisdiction over a Rule
60 motion because it was not brought to prevent a fraud on the court, but
rather to reopen a habeas judgment based on intervening law).
Here, Padilla’s Rule 60 motion was not a “true” Rule 60 motion be-
cause it did not seek relief from a final judgment or order in the form of setting
aside that judgment or order. It sought to litigate the attorney’s fee contro-
versy between a plaintiff and his counsel and used a Rule 60 motion as a vehi-
cle for getting federal jurisdiction over that controversy. Like a Rule 60 mo-
tion that is really a successive habeas petition, the District Court should have
dismissed it.
USCA11 Case: 20-13469 Date Filed: 11/18/2022 Page: 29 of 29
20-13469 Opinion of the Court 29
To sum up, had Padilla’s Rule 60 motion sought actual Rule
60 relief, the District Court would have had jurisdiction to enter-
tain it because the District Court had jurisdiction over the underly-
ing FLSA and employment discrimination controversy. But Padilla
did not ask for—and the District Court did not grant—the type of
relief authorized by Rule 60. Doing anything more than reopening
the matter that had previously been dismissed, which is all Rule 60
allows, required an independent jurisdictional basis. The District
Court did not have such an independent jurisdictional basis when
it litigated the state court breach of contract action as if it had been
brought under 28 U.S.C. § 1332. Because the District Court lacked
subject matter jurisdiction to entertain the motions Padilla and
Bonet & Smith filed, we are unable to entertain Padilla’s appeal.
We must dismiss the appeal and direct the District Court on receipt
of our mandate to vacate its orders of August 18, 2020, and deny
Bonet & Smith’s and Padilla’s motions for lack of jurisdiction.
* * *
This appeal is DISMISSED. On receipt of our mandate, the
District Court is instructed to VACATE its orders of August 18,
2020, and DENY Bonet & Smith’s and Padilla’s motions for lack of
subject matter jurisdiction.
SO ORDERED. | 01-04-2023 | 11-18-2022 |
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11/18/2022 09:05 AM CST
- 937 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF LOFGREEN
Cite as 312 Neb. 937
In re Estate of Denzel R. Lofgreen, deceased.
Jon C. Lofgreen and Denzel H. Lofgreen,
Copersonal Representatives of the Estate of
Denzel R. Lofgreen, deceased, appellees,
v. Constance Lofgreen, appellant.
In re Estate of Ruth M. Lofgreen, deceased.
Jon C. Lofgreen and Denzel H. Lofgreen,
Copersonal Representatives of the Estate
of Ruth M. Lofgreen, deceased, appellees,
v. Constance Lofgreen, appellant.
___ N.W.2d ___
Filed November 18, 2022. Nos. S-21-1008, S-21-1009.
1. Decedents’ Estates: Appeal and Error. An appellate court reviews pro-
bate cases for error appearing on the record made in the county court.
2. Evidence: Stipulations: Appeal and Error. In a case in which the facts
are stipulated, an appellate court reviews the case as if trying it origi-
nally in order to determine whether the facts warranted the judgment.
3. Decedents’ Estates: Judgments: Appeal and Error. When reviewing
questions of law in a probate matter, an appellate court reaches a conclu-
sion independent of the determination reached by the court below.
4. Statutes. The meaning of a statute is a question of law.
5. Decedents’ Estates: Taxation. The broad language of Neb. Rev. Stat.
§ 77-2002(1) (Reissue 2018 & Cum. Supp. 2020) was designed to pre-
vent evasion of Nebraska inheritance or succession taxes.
6. Decedents’ Estates: Taxation: Intent. In determining whether to impose
inheritance tax under Neb. Rev. Stat. § 77-2002(1)(b) (Reissue 2018 &
Cum. Supp. 2020) on a transferred interest in property, a court must con-
sider all the surrounding circumstances of the transfer rather than simply
the form of the transferring legal documents, in order to determine if a
decedent intended, as a matter of fact rather than a technical vesting of
- 938 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF LOFGREEN
Cite as 312 Neb. 937
title or estates, to retain a substantial economic benefit or actual use of
the property until death.
7. ____: ____: ____. A decedent’s motives for failing to memorialize in
the transferring document such retained interest in possession or enjoy-
ment is relevant only inasmuch as it is probative of whether the dece-
dent intended to retain actual possession or enjoyment of the subject
property.
8. Decedents’ Estates: Taxation: Evidence. Whether a transfer is subject
to inheritance tax under Neb. Rev. Stat. §§ 77-2004 to 77-2006 (Reissue
2018) depends on extrinsic evidence and the surrounding circumstances
rather than the language of the conveying document.
9. ____: ____: ____. Taxability does not depend upon the form given the
transfer, but instead the law searches out the reality and is not halted or
controlled by the form.
10. ____: ____: ____. Whether transfers of property are subject to inherit
ance tax because they were made in contemplation of death as described
by Neb. Rev. Stat. § 77-2002(1)(a) (Reissue 2018 & Cum. Supp. 2020)
is a question of fact determinable from the evidence and surrounding
circumstances, regardless of the language of the deeds.
11. Decedents’ Estates. In determining whether a transfer is one under
which the decedent retained at death the possession or enjoyment
of, or right to income from, the property as described by Neb. Rev.
Stat. § 30-2314(a)(1)(i) (Reissue 2016), the donor’s retained interest
in possession or enjoyment need not be reserved by the instrument
of transfer.
12. ____. The language of Neb. Rev. Stat. § 30-2314(a)(1)(i) (Reissue
2016) encompasses an interest retained pursuant to an understanding or
arrangement, which need not be express, but may be implied from all
the circumstances surrounding the transfer.
13. Decedents’ Estates: Words and Phrases. The terms “enjoy” and
“enjoyment” connote substantial present economic benefit rather than
technical vesting of title or estates.
14. ____: ____. The terms “possession” and “enjoyment” mean the actual
lifetime use of the property.
15. Decedents’ Estates. A transferor retains the enjoyment of property if, at
the time of the transfer, there is either an express or an implied agree-
ment that the transferor will retain the present economic benefits of
the property.
16. Decedents’ Estates: Taxation: Words and Phrases. “Possession or
enjoyment,” as used in Neb. Rev. Stat. § 77-2002(1)(b) (Reissue 2018),
must be given its plain and ordinary meaning.
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17. Decedents’ Estates: Taxation: Intent. An appellate court cannot read
into Neb. Rev. Stat. § 77-2002(1)(b) (Reissue 2018 & Cum. Supp. 2020)
a limitation that what was “intended” must be determined by the four
corners of any transferring document.
18. Decedents’ Estates: Taxation: Intent: Appeal and Error. An appellate
court cannot read out of Neb. Rev. Stat. § 77-2002(1)(b) (Reissue 2018
& Cum. Supp. 2020) the term “and,” which connotes that the requi-
site intent exists independently from the legal form of the transferring
document.
19. Decedents’ Estates: Taxation: Intent. To be subject to inheritance
tax under the rates described in Neb. Rev. Stat. §§ 77-2004 to 77-2006
(Reissue 2018), all Neb. Rev. Stat. § 77-2002(1)(b) (Reissue 2018 &
Cum. Supp. 2020) requires is that the decedent “intended” for the trans-
fer to actually take effect in possession or enjoyment after death.
20. Decedents’ Estates: Taxation: Deeds. If the form of the deed were con-
trolling, inheritance tax under Neb. Rev. Stat. § 77-2002(1)(b) (Reissue
2018 & Cum. Supp. 2020) could be evaded by transferring property by
a deed that on its face conveys the property without reservation of a
life estate, while retaining through an understanding or arrangement the
actual possession or enjoyment of the property.
21. Decedents’ Estates: Taxation: Legislature: Intent. The plain language
of Neb. Rev. Stat. § 77-2002(1)(b) (Reissue 2018 & Cum. Supp. 2020)
conveys the Legislature’s int ent to avoid evasion of Nebraska inher
itance taxes by making taxability controlled by the reality of the dece-
dent’s intent to retain “possession” or “enjoyment” rather than by the
technical vesting of title or estates.
22. Decedents’ Estates: Taxation: Intent. The surrounding circumstances
relevant to determining whether the decedent intended for the transfer
to take effect in possession or enjoyment after death include, but are
not limited to, whether the grantor or grantee (1) received rent or other
income from the property, (2) paid taxes and expenses for the property,
(3) held themselves out as owners of the property, (4) lived on or had
exclusive possession of the property without paying rent, and (5) paid
for improvement on the property.
23. Decedents’ Estates: Taxation: Real Estate. One of the most valuable
incidents of income-producing real estate is the rent which it yields,
because he or she who receives the rent in fact enjoys the property.
24. Decedents’ Estates: Taxation: Deeds. Continued exclusive possession
by the donor and the withholding of possession from the donee are
highly significant factors in determining whether the decedent retained
possession or enjoyment despite the absolute language of a deed.
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25. Stipulations: Trial: Attorneys at Law: Parties: Public Policy.
Stipulations voluntarily entered into between the parties to a cause or
their attorneys, for the government of their conduct and the control of
their rights during the trial or progress of the cause, will be respected
and enforced by the courts, where such stipulations are not contrary to
good morals or sound public policy.
Appeal from the County Court for Furnas County: Anne M.
Paine, Judge. Reversed and remanded with directions.
Susan J. Spahn, of Fitzgerald, Schorr, Barmettler & Brennan,
P.C., L.L.O., for appellant.
Jeffrey M. Cox, of Dier, Osborn & Cox, P.C., L.L.O., for
appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
INTRODUCTION
In two parallel probate cases, the county court denied a
petition to assess state inheritance tax under Neb. Rev. Stat.
§ 77-2002(1)(b) (Reissue 2018 & Cum. Supp. 2020) on real
property that Denzel R. Lofgreen and Ruth M. Lofgreen (dece-
dents) had deeded to their daughter decades earlier while
continuing to exercise control over, receive income from, and
pay taxes on the property up until their deaths. On appeal,
the daughter argues § 77-2002(1)(b), which states that “[a]ny
interest in property . . . shall be subject to tax . . . if it shall be
transferred by deed . . . and . . . intended to take effect in pos-
session or enjoyment, after his or her death,” applies whenever
a transfer is intended in fact to take effect in possession and
enjoyment after death, whether or not that intent is formalized
in the transfer documents. We agree and reverse the judgment
of the probate court.
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BACKGROUND
Jon C. Lofgreen and Denzel H. Lofgreen, corepresentatives
of decedents’ estates and decedents’ sons (collectively corep-
resentatives) filed inventories of Nebraska assets and a peti-
tion for determination of inheritance tax in two probate cases
before the county court. Decedents’ wills had been submitted
to probate in another state where decedents were domiciled at
their death. The inventory did not include Nebraska farmland
(hereinafter the property) decedents had conveyed to their
daughter, Constance Lofgreen, by a series of deeds from 1992
to 1995.
Constance objected to the petition for determination of
inheritance tax, because it failed to include the property as
subject to inheritance tax under § 77-2002. Constance’s objec-
tion filed with the court described that she had been “deeded” a
30-percent ownership interest in the subject property by each of
three separate deeds, after which she was deeded the remaining
10-percent ownership interest through a fourth deed. Constance
set forth in the objection that she did not know about the deeds
until several years later and that decedents’ intent when they
executed the deeds was for Constance not to have possession
of the property until after they were both deceased.
Stipulated Facts
The corepresentatives and Constance filed a joint motion
to submit the petition and objection to the court on stipulated
facts. At a hearing, the county court received the stipulated
facts into evidence. No other evidence was submitted.
The parties stipulated decedents “deeded” the property to
Constance by a series of deeds from 1992 to 1995. They did
not otherwise describe the verbiage of the deeds. They stipu-
lated that although Constance “owned” the property by 1995,
decedents “did not intend for Constance to have possession and
enjoyment of the [p]roperty until after their deaths.”
The parties further stipulated decedents continued to control
and farm the property, and receive income from the property,
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until their deaths in 2019. In 2012, decedents leased the prop-
erty to their son Jon, who farmed the property for decedents
under a crop-share agreement whereby Jon received two-thirds
and decedents received one-third of the produce. Decedents
paid their one-third share of expenses for the property, reported
the property acres to the U.S. Department of Agriculture Farm
Service Agency, maintained and received proceeds from crop
insurance on the property, and reported farm income from the
property on their income taxes. Additionally, decedents paid
all real estate taxes for the property, although in some years,
Constance paid the taxes and decedents reimbursed her.
The parties stipulated Constance received no income from
the property and paid no expenses for the property (unless
later reimbursed by decedents) until after decedents’ deaths.
In 2020, after decedents’ deaths, Constance, for the first time,
entered into a farming agreement with Jon, purchased crop
insurance on the property, received a one-third share of the
property income, paid one-third of property expenses, and
assumed responsibility for taxes on the property.
Decision
The county court entered an order in both cases conclud-
ing the property should not be included in Denzel’s estate for
purposes of inheritance tax, because it was not, as described
by § 77-2002(1)(b), “transferred by deed, grant, sale, or gift
. . . and . . . intended to take effect in possession or enjoyment,
after his or her death.” Although the deeds were not entered
into evidence, the court refused to consider evidence outside of
the four corners of the deeds of an intent to retain possession or
enjoyment in fact. It reasoned that decedents did not expressly
retain a life estate in the deeds and that the written deeds were
dispositive of decedents’ intent.
While Constance had pointed out that the plain meaning of
§ 77-2002(1)(b) focuses on intent rather than the legal effect
of the deed, the court stated it could not “speculate on what
the arrangement was between Constance and [decedents].” The
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court reiterated this reasoning in a subsequent order denying
Constance’s motion to alter or amend. The court stated dece-
dents’ likely intent in executing the deeds before their deaths
was to avoid federal estate tax by appearing to have given up
“all incidence of ownership,” and the court thought it “incon-
gruent to now assign an intent to [decedents] which differs
from [the deeds].”
Constance appealed in both cases. We consolidated the cases
on appeal.
ASSIGNMENTS OF ERROR
Constance assigns that the county court erred in finding (1)
that the property was not subject to Nebraska inheritance tax
on the grounds that Constance had received full and complete
ownership of such property, (2) that decedents did not intend
to retain lifetime possession and enjoyment of the real property
subsequent to deeding the property to Constance, and (3) that
decedents intended to give up all incidents of ownership when
they executed the deeds giving the property to Constance.
STANDARD OF REVIEW
[1] An appellate court reviews probate cases for error appear-
ing on the record made in the county court. 1
[2] In a case in which the facts are stipulated, an appellate
court reviews the case as if trying it originally in order to deter-
mine whether the facts warranted the judgment. 2
[3] When reviewing questions of law in a probate matter, an
appellate court reaches a conclusion independent of the deter-
mination reached by the court below. 3
[4] The meaning of a statute is a question of law. 4
1
In re Estate of Fries, 279 Neb. 887, 782 N.W.2d 596 (2010).
2
Hand Cut Steaks Acquisitions v. Lone Star Steakhouse, 298 Neb. 705, 905
N.W.2d 644 (2018).
3
In re Estate of Fries, supra note 1.
4
Id.
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ANALYSIS
[5-7] We have said the broad language of § 77-2002(1) was
designed to prevent evasion of Nebraska inheritance or succes-
sion taxes. 5 Section 77-2002(1) provides, in relevant part:
Any interest in property . . . shall be subject to tax
. . . if it shall be transferred by deed, grant, sale, or
gift . . . and: (a) Made in contemplation of the death of
the grantor; (b) intended to take effect in possession or
enjoyment, after his or her death; (c) by reason of death,
any person shall become beneficially entitled in posses-
sion or expectation to any property or income thereof; or
(d) held as joint owners or joint tenants by the decedent
and any other person in their joint names . . . .
We hold that in determining whether to impose inheritance
tax under § 77-2002(1)(b) on a transferred interest in prop-
erty, a court must consider all the surrounding circumstances
of the transfer rather than simply the form of the transferring
legal documents, in order to determine if a decedent intended,
as a matter of fact rather than a technical vesting of title or
estates, to retain a substantial economic benefit or actual use
of the property until death. A decedent’s motives for failing to
memorialize in the transferring document such retained inter-
est is relevant only inasmuch as it is probative of whether the
decedent actually intended to retain possession or enjoyment
of the subject property.
[8-10] In our decisions discussing § 77-2002, we have held
that whether a transfer is subject to inheritance tax under Neb.
Rev. Stat. §§ 77-2004 to 77-2006 (Reissue 2018) depends on
extrinsic evidence and the surrounding circumstances rather
than the language of the conveying document. 6 We have rec-
ognized, “[T]axability does not depend upon . . . the form
5
In re Estate of Bronzynski, 116 Neb. 196, 216 N.W. 558 (1927) (discussing
similar language in Comp. Stat. § 6153 (1922)).
6
See, In re Estate of Wheeler, 119 Neb. 344, 228 N.W. 861 (1930); In re
Estate of Bronzynski, supra note 5.
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given the transfer.” 7 “The law searches out the reality, and is
not halted or controlled by the form.” 8 Thus, in In re Estate
of Bronzynski, we held whether transfers of property were
subject to inheritance tax because they were made in contem-
plation of death as described by § 77-2002(1)(a) was a ques-
tion “of fact determinable from the evidence and surrounding
circumstances,” 9 regardless of the language of the deeds.
[11,12] Under “possession or enjoyment” language similar
to § 77-2002(1)(b), we have likewise looked to reality over
the form of the transferring legal instrument when deter-
mining if the transferred property is part of a decedent’s
augmented estate for purposes of computing the decedent’s
spouse’s elective share. In In re Estate of Fries, 10 we held that
in determining whether the transfer was one “under which the
decedent retained at death the possession or enjoyment of, or
right to income from, the property,” as described by Neb. Rev.
Stat. § 30-2314(a)(1)(i) (Reissue 2016), the donor’s retained
interest in possession or enjoyment “‘need not be reserved
by the instrument of transfer.’” 11 Instead, the language of
the statute “encompasses an interest retained pursuant to an
understanding or arrangement, which need not be express,
but may be implied from all the circumstances surrounding
the transfer.” 12
[13-15] We explained it is well settled that the terms “enjoy”
and “enjoyment” connote “substantial present economic ben-
efit” rather than technical vesting of title or estates. 13 Likewise,
the terms “possession” and “enjoyment” mean the actual
7
In re Estate of Wheeler, supra note 6, 119 Neb. at 349, 228 N.W. at 863.
8
Id. at 349-50, 228 N.W. at 863.
9
In re Estate of Bronzynski, supra note 5, 116 Neb. at 199, 216 N.W. at 559.
10
In re Estate of Fries, supra note 1.
11
Id. at 894, 782 N.W.2d at 603.
12
Id. at 895, 782 N.W.2d at 603.
13
Id. at 894, 782 N.W.2d at 603.
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“‘lifetime use of the property.’” 14 Thus, under the plain lan-
guage of the statute, “a transferor retains the enjoyment of
property” if, at the time of the transfer, there is an agreement—
either express or implied from the circumstances, including the
actual lifetime use of the property—that “the transferor will
retain the present economic benefits of the property.” 15 This
was consistent with the statute’s purpose to prevent a decedent
from transmitting property outside of probate in form, while
retaining an interest in substance, as a means of defeating the
right of the surviving spouse to a share. 16
Accordingly, we held the lower court had erred by conclud-
ing as a matter of law that the subject properties should not be
included in the augmented estate when there was conflicting
evidence of whether the decedent had an informal arrangement
to retain possession or enjoyment of the property. 17 There was
evidence that, after the transfer, the decedent had continued to
use the properties for recreational purposes, held himself out
as owner of the properties, performed management functions
for the properties, paid taxes on the properties, and received
income from the properties. 18 On the other hand, there was
evidence the transferees had merely gifted the income from the
properties to the decedent. 19 While the decedent did not retain
in the deeds any legal interest in the subject properties, we
specifically rejected the transferees’ argument that a decedent
retains possession or enjoyment from property under the trans-
fer only if the legal instrument secures the decedent’s right to
possession, enjoyment, or income. 20
14
Id. at 895, 782 N.W.2d at 603 (citing United States v. Byrum, 408 U.S.
125, 92 S. Ct. 2382, 33 L. Ed. 2d 238 (1972)).
15
In re Estate of Fries, supra note 1, 279 Neb. at 895, 782 N.W.2d at 603.
16
See In re Estate of Fries, supra note 1.
17
Id.
18
Id.
19
Id.
20
Id.
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States with similar “possession or enjoyment” clauses in
their inheritance tax statutes have agreed with near “complete
unanimity” 21 that the question of intent is not confined to the
four corners of the deed. 22 In People v. Shutts, 23 for example,
the Illinois Supreme Court held that a transfer was subject to
inheritance tax, “even though the intention” to postpone pos-
session and enjoyment was “not evidenced in writing” and the
deed was “in form absolute.”
Federal courts agree, and they thus employ an objective
test that looks to the actual effect of the transfer as to “pos-
session or enjoyment,” rather than technical title, in determin-
ing a decedent’s gross estate for the purposes of calculating
a spouse’s elective share under 26 U.S.C. § 2036 (2018). 24
In Comm’r v. Estate of Church, 25 for instance, the U.S.
Supreme Court held that a transfer of property to a trust was
“intended to take effect in possession or enjoyment” at death,
despite the transferor retaining no power to alter, amend, or
revoke the transfer. The “possession or enjoyment” clause,
reasoned the Court, involves not “a mere technical question
of title,” but, rather, “what the transaction actually effected as
to title, possession and enjoyment.” 26 Thus, the retention of
income for life was sufficient to subject the transfer to estate
tax, because “‘the liability for taxation depend[s], not upon
the mere vesting in a technical sense of title to the gift, but
upon the actual possession or enjoyment thereof.’” 27
21
Comm’r v. Estate of Church, 335 U.S. 632, 638, 69 S. Ct. 322, 93 L. Ed.
288 (1949).
22
Annot., 49 A.L.R. 864 (1927), and Annot., 100 A.L.R. 1244 (1936)
(collecting cases).
23
People v. Shutts, 305 Ill. 539, 541, 137 N.E. 418, 419 (1922).
24
See, Comm’r v. Estate of Church, supra note 21; Guynn v. United States,
437 F.2d 1148 (4th Cir. 1971); McNichol’s Estate v. C.I.R., 265 F.2d 667
(3d Cir. 1959).
25
Comm’r v. Estate of Church, supra note 21, 335 U.S. at 651.
26
Id., 335 U.S. at 637, 638.
27
Id., 335 U.S. at 638.
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[16-18] The use in § 77-2002(1)(b) of the phrase “possession
or enjoyment” must be given its plain and ordinary meaning. 28
As discussed, these words connote actual retained interests
rather than technical vesting of title. It is also notable in deter-
mining the meaning of § 77-2002(1)(b) that the Legislature
stated any interest in property shall be subject to tax if trans-
ferred by a deed “and” if it is intended to take effect in pos-
session or enjoyment after death. At the same time, subsection
(1)(b) does not mention any transferring document, such as a
deed; it only describes how the interest was “intended” to be
transferred. We cannot read into § 77-2002(1)(b) a limitation
that what was “intended” must be determined by the four cor-
ners of any transferring document. 29 Nor can we read out of
the statute 30 the term “and,” which connotes that the requisite
intent exists independently from the legal form of the transfer-
ring document.
[19-21] In sum, to be subject to inheritance tax under the
rates described in §§ 77-2004 to 77-2006, all § 77-2002(1)(b)
requires is that the decedent “intended” for the transfer to
actually take effect in possession or enjoyment after death.
Enjoyment and possession are concepts of use in fact; the
terms of the legal document effectuating the transfer are not
decisive. This reading is consistent with the purpose of the
statute. If the form of the deed were controlling, inheritance
tax could be evaded by transferring property by a deed that on
its face conveys the property without the reservation of a life
estate, while retaining through an informal understanding or
arrangement the actual possession or enjoyment of the prop-
erty. As illustrated by the Illinois Supreme Court, in holding
that indicia of possession or enjoyment control over the legal
28
See Pittman v. Western Engineering Co., 283 Neb. 913, 813 N.W.2d 487
(2012).
29
See Robinson v. Houston, 298 Neb. 746, 905 N.W.2d 636 (2018).
30
See In re Adoption of Yasmin S., 308 Neb. 771, 956 N.W.2d 704 (2021).
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form of the transferring document in determining whether a
transfer was “intended to take effect in possession or enjoy-
ment” after death: “If the failure to evidence such intention
in writing would defeat the inheritance tax, such tax could be
defeated in every case by the parent executing a deed to his
children” while “relying upon their parol promises” to let the
parent retain possession and enjoyment. 31 The plain language
of § 77-2002(1)(b) conveys the Legislature’s intent to avoid
such evasion of Nebraska inheritance taxes by making taxabil-
ity controlled by the reality of the decedent’s intent to retain
“possession” or “enjoyment” rather than by the technical vest-
ing of title or estates.
[22-24] The surrounding circumstances relevant to deter-
mining whether the decedent intended for the transfer to take
effect in possession or enjoyment after death include, but are
not limited to, whether the grantor or grantee (1) received
rent or other income from the property, 32 (2) paid taxes and
expenses for the property, 33 (3) held themselves out as own-
ers of the property, 34 (4) lived on or had exclusive posses-
sion of the property without paying rent, 35 and (5) paid for
improvement on the property. 36 It has been said that “one of
the most valuable incidents of income-producing real estate
is the rent which it yields,” because “[h]e who receives the
rent in fact enjoys the property.” 37 Also, “continued exclusive
31
The People v. Estate of Moir, 207 Ill. 180, 190-91, 69 N.E. 905, 908
(1904).
32
In re Estate of Fries, supra note 1. See, Comm’r v. Estate of Church, supra
note 21; McNichol’s Estate v. C.I.R., supra note 24; In re Walker’s Estate,
100 Utah 307, 114 P.2d 1030 (1941).
33
In re Estate of Fries, supra note 1.
34
Id.
35
Guynn v. United States, supra note 24.
36
Id.
37
McNichol’s Estate v. C.I.R., supra note 24, 265 F.2d at 671.
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possession by the donor” and the “withholding of possession
from the donee” are “highly significant factors” 38 in determin-
ing whether the decedent retained possession or enjoyment
despite the absolute language of a deed.
[25] Constance and the corepresentatives of the estate sub-
mitted on stipulated facts the question of whether the subject
property should be included in the inventory of property
subject to inheritance tax. Stipulations voluntarily entered
into between the parties to a cause or their attorneys, for the
government of their conduct and the control of their rights
during the trial or progress of the cause, will be respected
and enforced by the courts, where such stipulations are not
contrary to good morals or sound public policy. 39 The county
court accepted the parties’ stipulations of fact into evidence
and did not declare them contrary to sound morals or against
public policy. Therefore, the stipulated facts submitted by the
parties will govern this appeal. Generally, an appellate court
reviews probate cases for error appearing on the record made
in the county court, 40 but in a case in which the facts are
stipulated, an appellate court reviews the case as if trying it
originally in order to determine whether the facts warranted
the judgment. 41
The parties stipulated that after the transfer to Constance,
decedents continued to pay expenses and taxes on the prop-
erty, leased out the property to their son Jon, received income
which they reported, and maintained insurance on the property.
Conversely, the parties stipulated Constance shared none of
these attributes of ownership, except later paying expenses
and taxes that the parents reimbursed. These facts are enough
to conclusively show that despite the form given the deed, the
38
Guynn v. United States, supra note 24, 437 F.2d at 1150.
39
Moore v. Moore, 302 Neb. 588, 924 N.W.2d 314 (2019).
40
In re Estate of Fries, supra note 1.
41
Hand Cut Steaks Acquisitions v. Lone Star Steakhouse, supra note 2.
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reality was decedents intended the conveyance to take effect in
possession or enjoyment at death.
Whether, as the probate court surmised, decedents intended
to evade federal estate taxes through formal deeds that failed
to reflect their actual intent is not a circumstance probative
of whether they intended for the transfers to, as a matter of
fact, take effect in possession or enjoyment after their deaths.
Indeed, such evidence of evasion, if it had been submitted,
supports, rather than negates, the conclusion that decedents’
intent was to retain actual possession and enjoyment until
their deaths. The purpose of § 77-2002 is to impose Nebraska
inheritance tax on transfers that in substance, rather than in
form, should be part of the probate estate. However, we do not
express any opinion on whether other state or federal tax con-
sequences will also apply to the property Constance received
from decedents.
CONCLUSION
Under § 77-2002(1), the intent for a transfer of property to
take effect in possession or enjoyment after the transferor’s
death is a matter of the reality of the interest retained and
does not need to be reflected on the face of the transferring
documents. The stipulated facts show decedents intended to
retain possession and enjoyment of the property until death.
The property is subject to Nebraska inheritance tax under
§ 77-2002(1)(b). We reverse, and remand with directions for
the court to include the property in the inventory subject to
inheritance tax.
Reversed and remanded with directions.
Cassel, J., concurring.
I unreservedly join the court’s opinion, but write separately
to assure an informed reader that this court is not blind to the
reality at work here.
Constance filed an objection to the proposed determination
of inheritance tax, despite that her objection would result in
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE ESTATE OF LOFGREEN
Cite as 312 Neb. 937
an increase to the amount she would owe. At oral argument,
counsel at least impliedly conceded that this effort was not a
demonstration of altruism or public spirit. As that discussion
made clear, this tactic was driven by the confluence of federal
tax law changes after the deeds were executed and recorded.
Two changes coincide. First, the unified credit against
federal estate and gift taxes has ensured that estates of this
size would now pass free of federal estate tax. Second, the
stepped-up basis for income tax purposes attributable to prop-
erty passing at death provides an enormous incentive to cap-
ture property back into a decedent’s estate—despite a deed
conveying property away.
I express no opinion on whether other state or federal tax
consequences will also apply to the property at issue here.
Our province here extends only to the question presented
regarding state inheritance tax. But we recognize the incen-
tives at work. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487178/ | 20‐3772
Stegemann v. United States
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL
RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS
COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit,
held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
City of New York, on the 18th day of November, two thousand twenty‐two.
PRESENT:
JOHN M. WALKER, JR.,
RICHARD J. SULLIVAN,
Circuit Judges,
MARY KAY VYSKOCIL,*
District Judge.
_____________________________________________
JOSHUA G. STEGEMANN,
Petitioner‐Appellant,
v. No. 20‐3772
UNITED STATES OF AMERICA,
Respondent‐Appellee.
___________________________________________
*Judge Mary Kay Vyskocil, of the United States District Court for the Southern District of New
York, sitting by designation.
FOR PETITIONER‐APPELLANT: RICHARD W. LEVITT (Zachary
Segal, on the brief), Levitt &
Kaizer, New York, NY.
FOR RESPONDENT‐APPELLEE: RAJIT S. DOSANJH (Richard D.
Belliss, on the brief), Assistant
United States Attorneys, for
Carla B. Freedman, United
States Attorney for the
Northern District of New York,
Syracuse, NY.
Appeal from an order of the United States District Court for the Northern
District of New York (Gary L. Sharpe, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the order of the district court is AFFIRMED.
Joshua Stegemann appeals from the district court’s order denying his
motion to vacate his sentence under 28 U.S.C. § 2255. On appeal, Stegemann
argues that he received ineffective assistance of counsel from his retained counsel,
Elizabeth Quigley, who represented him for portions of the pre‐trial proceedings
and at trial, and from the Assistant Federal Defenders who represented him at the
post‐trial proceedings, at sentencing, and on direct appeal. As to Quigley,
Stegemann argues that she erred by advising him to forgo a favorable plea deal
2
and by failing to move to suppress evidence seized from his residence pursuant to
a search warrant on the grounds that the police unlawfully detonated a flash‐bang
device upon entering his home. As to the Assistant Federal Defenders,
Stegemann argues that they erred post‐verdict, by failing to seek the release of his
funds that were seized as substitute property under 21 U.S.C. § 853(p), which
allegedly prevented him from retaining the counsel of his choosing, and by
declining to challenge the use of his prior Massachusetts drug conviction as a
predicate for the career‐offender enhancement under section 4B1.1 of the
Sentencing Guidelines. We assume the parties’ familiarity with the underlying
facts, procedural history, and issues on appeal.
On appeal from the denial of a section‐2255 motion, we review the district
court’s “factual findings for clear error and questions of law de novo.” Triana v.
United States, 205 F.3d 36, 40 (2d Cir. 2000) (internal quotation marks and emphasis
omitted). The question of whether counsel provided ineffective assistance is a
mixed question of law and fact, which we review de novo. Id.
To establish ineffective assistance of counsel, Stegemann must show that his
attorneys’ performance was both objectively unreasonable and prejudicial to his
3
defense. See Strickland v. Washington, 466 U.S. 668, 687–88, 692 (1984).
Stegemann can satisfy the first prong by demonstrating that his attorneys’
performance fell below an objective standard of reasonableness under “prevailing
professional norms.” Id. at 688. He can satisfy the second prong by
demonstrating that there is a “reasonable probability” that, but for his attorneys’
“unprofessional errors, the result of the proceeding would have been different.”
Id. at 694. When determining whether counsel was ineffective, a court need not
address both prongs if the defendant fails to make a showing on either one. Id. at
697.
First, Stegemann argues that Quigley’s advice to reject the government’s
plea deal was deficient. To be sure, the decision of whether to plead guilty is
often the “most important single decision in any criminal case.” Cardoza v. Rock,
731 F.3d 169, 178 (2d Cir. 2013) (internal quotation marks omitted). In advising a
client on this decision, defense counsel must “communicate to the defendant the
terms of the plea offer[] and should usually inform the defendant of the strengths
and weaknesses of the case against him, as well as the alternative sentences to
which he will most likely be exposed.” Purdy v. United States, 208 F.3d 41, 45 (2d
4
Cir. 2000) (citation omitted). But the decision of whether to plead guilty
ultimately belongs to the defendant, and the “lawyer must take care not to coerce
a client into either accepting or rejecting a plea offer.” Id. Because defense
counsel must balance, “on the one hand, failing to give advice and, on the other,
coercing a plea,” defense counsel’s determination as to how best to advise a client
“enjoys a wide range of reasonableness.” Id.
Stegemann’s argument fails because he cannot show that Quigley’s advice
was objectively unreasonable. Stegemann contends that Quigley provided
ineffective assistance by advising him to reject the government’s plea offer simply
because it exceeded Stegemann’s stated preference for a plea deal of no more than
twelve‐to‐fourteen years’ imprisonment – a cap that Stegemann now concedes was
unrealistic. But the allegation that Quigley based her advice solely on
Stegemann’s unrealistic preference is contradicted by Quigley’s affidavit, in which
she averred that she and Stegemann fully discussed the terms of the deal,
including the risks and benefits of accepting the offer as well as its mandatory
minimum and maximum terms. In denying Stegemann’s motion, the district
court credited Quigley’s version of events, rendering it reasonable for the district
5
court to conclude that Quigley’s performance did not fall below the objective
standard of reasonableness under the first prong of the Strickland test.
Stegemann further argues that the district court erred by making its
credibility determination without holding an evidentiary hearing. We disagree.
A district court’s decision to resolve a section‐2255 motion without a hearing is
reviewed for abuse of discretion. See Chang v. United States, 250 F.3d 79, 82 (2d
Cir. 2001). Where, as here, the district court presided over the underlying
proceedings, a “full‐blown evidentiary hearing” is often unnecessary. Raysor v.
United States, 647 F.3d 491, 494 (2d Cir. 2011). In light of the district court’s
familiarity with Stegemann and Quigley, gained over the course of trial and
subsequent proceedings, including an evidentiary hearing at which Stegemann
testified, we find that the district court’s decision to resolve the motion on the basis
of written submissions falls squarely within the zone of its discretion. See Chang,
250 F.3d at 86 (explaining that a district court’s decision to not hold an evidentiary
hearing avoids “the delay, the needless expenditure of judicial resources, the
burden on trial counsel and the government, and perhaps the encouragement of
6
other [litigants] to make similar baseless claims that would have resulted from a
full testimonial hearing”).
Stegemann next argues that Quigley provided ineffective assistance when
she failed to move to suppress the evidence seized from Stegemann’s home.
Under the Fourth Amendment, search warrants must “particularly describ[e] the
place to be searched[] and the persons or things to be seized.” U.S. Const. amend.
IV. Nothing in the Fourth Amendment, however, requires warrants to describe
“the precise manner in which they are to be executed.” Dalia v. United States, 441
U.S. 238, 257 (1979); see, e.g., Richards v. Wisconsin, 520 U.S. 385, 395–96 (1997)
(upholding a no‐knock search even without a no‐knock warrant). Instead, “the
manner in which a warrant is executed is subject to later judicial review as to its
reasonableness.” Dalia, 441 U.S. at 258.
Although Stegemann argues that Quigley should have challenged the
search on the ground that the warrant did not authorize the use of a flash‐bang
device, the Fourth Amendment imposes no such requirement. See id. at 257 n.19
(noting that the Supreme Court has never held that the Constitution requires
officers requesting a warrant to set forth the anticipated means for executing it).
7
Indeed, courts have long recognized that flash‐bang devices may be used without
prior authorization where, as here, “it was reasonable for the officers to fear for
their safety in conducting the search.” United States v. Boulanger, 444 F.3d 76, 84–
85 (1st Cir. 2006); see also Terebesi v. Torreso, 764 F.3d 217, 238 (2d Cir. 2014)
(explaining that it “is more likely that using a stun grenade will be considered
reasonable if the subject of the search or arrest is known to pose a high risk of
violent confrontation”). In this case, it was reasonable for law enforcement
officers to fear for their safety because they had reason to believe that Stegemann
possessed multiple firearms and knew that Stegemann had threatened to kill
anyone who tried to enter his home. Since the officers’ use of the flash‐bang
device was clearly reasonable under the circumstances, Quigley’s strategic
decision not to challenge the search on those grounds did not fall below
“prevailing professional norms.” Strickland, 466 U.S. at 688.
Stegemann next contends that his court‐appointed counsel erred by failing,
post‐verdict, to seek the return of funds that had been seized, arguing for the first
time in his section‐2255 motion that he would have retained new counsel for
sentencing were those funds made available to him. The Sixth Amendment
8
allows “a defendant who does not require appointed counsel to choose who will
represent him.” United States v. Gonzalez‐Lopez, 548 U.S. 140, 144 (2006). The
deprivation of the right to counsel of choice is a “structural error,” for which a
defendant need not demonstrate prejudice. Id. at 150 (internal quotation marks
omitted). But even if it could be argued that Stegemann’s counsel should have
moved to release his funds – which the government now concedes were not
forfeitable as the proceeds of unlawful activity – Stegemann’s claim nevertheless
fails because he has not demonstrated that he was in fact deprived of the right to
the attorney of his choosing. Stegemann offers no evidence to suggest that he
would have procured retained counsel in the event that his funds had been
returned. Indeed, although Stegemann asked the district court to “appoint [him]
counsel” after Quigley filed her motion to withdraw, Gov’t App’x at 642 (emphasis
added), Stegemann never stated or implied that the seizure of his assets prevented
him from retaining “his preferred representational choice,” Luis v. United States,
578 U.S. 5, 12 (2016). And while Stegemann did advise the district court that he
was “completely indigent,” that comment was in response to the district court
questioning why it should “not compel [Stegemann] to go out and hire another
9
lawyer.” Gov’t App’x at 642–43. Stegemann certainly never said that he had
contacted a lawyer – or even that he had one in mind – who, but for Stegemann’s
lack of ready funds, was prepared to take the case on short notice, post‐verdict, to
wrap up the sentencing. In short, Stegemann has not demonstrated any link
between his counsel’s asserted failure to move for the return of his funds and the
denial of his right to choose who will represent him. Absent such a showing,
Stegemann is not entitled to a presumption of prejudice, and this claim of
ineffective assistance fails.
Finally, Stegemann argues that his counsel, both at sentencing and on direct
appeal, rendered ineffective assistance by failing to challenge the district court’s
consideration of his 1999 Massachusetts state‐court conviction as a basis to
adjudge him a career offender under section 4B1.1 of the Sentencing Guidelines.
Under the Sentencing Guidelines, a defendant is subject to the career‐offender
enhancement when, among other things, he has “at least two prior felony
convictions of either a crime of violence or a controlled substance offense.”
U.S.S.G. § 4B1.1(a). A court tasked with determining whether a particular
conviction qualifies as a career‐offender predicate must employ a “modified
10
categorical approach,” which generally considers the elements of the statute of
conviction, rather than the facts underlying that offense. United States v. Savage,
542 F.3d 959, 964 (2d Cir. 2008).
Here, Stegemann’s counsel did not err by declining to challenge the 1999
conviction as a predicate under the career offender enhancement. Stegemann
cites to no authority to support his claim that, at the time of his sentencing, his
1999 conviction under Mass. Gen. Laws ch. 94C, § 32E(b) did not qualify as a
predicate under the career offender enhancement. To the contrary, while
Stegemann’s conviction was on direct appeal, the First Circuit expressly held that
this statute was “unarguably a conviction for a controlled substance offense and,
thus, a proper predicate offense under the career offender guideline.” United
States v. Montoya, 844 F.3d 63, 72 (1st Cir. 2016). On that basis alone, counsel’s
decision to forego such a legal argument cannot be said to fall below prevailing
professional norms. See United States v. Regalado, 518 F.3d 143, 149–50 n.3 (2d Cir.
2008) (explaining that it is “beyond any doubt” that an attorney’s “failure to make
a meritless argument” cannot “amount to ineffective assistance” (internal
quotation marks and alteration omitted)). Nor can it be argued that Stegemann
11
was prejudiced by that decision, since it is not reasonably probable that the district
court would have credited the argument and reached a conclusion at odds with
the First Circuit’s subsequent holding on the same issue. See Strickland, 466 U.S.
at 694 (“The defendant must show that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.”). Accordingly, we find that Stegemann has failed to show that he
received ineffective assistance of counsel in connection with his sentencing.
We have considered Stegemann’s remaining arguments and find them to be
without merit. Accordingly, we AFFIRM the order of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
12 | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487183/ | RENDERED: NOVEMBER 18, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0966-MR
KENNETH LAMONT BOONE, JR. APPELLANT
ON REMAND FROM SUPREME COURT
v. (FILE NO. 2021-SC-0494-DG)
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE ERNESTO M. SCORSONE, JUDGE
ACTION NO. 16-CR-00383
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.
THOMPSON, K., JUDGE: After accepting discretionary review from the
Commonwealth, the Kentucky Supreme Court reversed the portion of our opinion
which reversed the Fayette Circuit Court’s conviction of Kenneth Lamont Boone
for theft of identity and for being a persistent felony offender in the first degree
(PFO I) and remanded the case to us. As our prior opinion had reversed Boone’s
conviction for failure to instruct on a lesser included offense, we did not reach
Boone’s final argument regarding his sentencing, as it was moot. Now that the
Kentucky Supreme Court has upheld his convictions, on remand we now consider
whether Boone is entitled to palpable error relief for his PFO I sentence based on
the Commonwealth having provided misleading information to the jury regarding
his parole eligibility.
After a trial in November 2018, the jury found Boone guilty of theft of
identity and being a PFO I. The jury recommended a one-year sentence, enhanced
to ten years due to the PFO I conviction. This was the statutory minimum for his
PFO I conviction. In May 2019, following his conditional guilty plea on a severed
charge of possession of a controlled substance, the trial court sentenced Boone to a
total of ten years’ imprisonment. We affirmed the denial of Boone’s motion to
suppress on the possession charge, and this decision stands as Boone did not file
his own motion for discretionary relief on that issue. Therefore, the only issue
before us is the resolution of Boone’s remaining argument as to his PFO I
sentence.
Boone argues that he is entitled to relief due to the Commonwealth
having provided misleading information regarding his parole eligibility.
Specifically, during the penalty phase the Commonwealth introduced a document
from the Department of Corrections setting forth parole eligibility, then orally
-2-
explained that Boone would be eligible for parole after serving fifteen percent of
his sentence since he had been convicted of a Class D felony.
KRS 439.340(3)(a) provides that:
A nonviolent offender convicted of a Class D felony with
an aggregate sentence of one (1) to five (5) years who is
confined to a state penal institution or county jail shall
have his or her case reviewed by the Parole Board after
serving fifteen percent (15%) or two (2) months of the
original sentence, whichever is longer.
Therefore, the information provided by the Commonwealth was accurate as to the
theft of identity conviction but was nonetheless potentially misleading because, by
virtue of being a PFO I, Boone received a ten-year sentence, thereby taking him
outside the scope of KRS 439.340(3)(a).
It is undisputed that Boone is ineligible for parole until he serves
twenty percent of his sentence. See 501 Kentucky Administrative Regulations
(KAR) 1:030 Section 3(1)(c). However, Boone’s counsel failed to object so Boone
is entitled to relief only if we conclude the parole information is a palpable error
under Kentucky Rules of Criminal Procedure (RCr) 10.26. An error is palpable
only if it “results in manifest injustice” and “there is a substantial possibility that,
but for the error, the verdict would have been different[.]” King v. Commonwealth,
472 S.W.3d 523, 532 (Ky. 2015).
Boone relies upon unpublished opinions which deemed similar
potentially misleading parole-eligibility information to be a palpable error. See,
-3-
e.g., McGregor v. Commonwealth, No. 2012-SC-000245-MR, 2013 WL 4680444,
at *7 (Ky. Aug. 29, 2013) (unpublished). However, in addition to McGregor and
the other cases cited by Boone being unpublished, the facts here are materially
distinguishable because Boone, unlike McGregor and other defendants, received
the minimum sentence for his PFO I status. See KRS 532.080(6)(b). Thus, any
misleading information regarding parole eligibility could not have resulted in
manifest injustice because it could not have caused Boone to suffer any prejudice
as the jury could not sentence him to a lower term of years than the statutorily
mandated PFO I minimum.
We strongly caution the Commonwealth that it is improper to provide
the jury with information as to parole eligibility and then mislead the jury by not
clarifying how this eligibility will change based upon conviction for PFO I. While
we note that in another case such an error could be prejudicial, we discern no
palpable error to Boone under these facts.
Accordingly, we affirm Boone’s convictions and sentences by the
Fayette Circuit Court.
ALL CONCUR.
-4-
BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Aaron Reed Baker Daniel Cameron
Frankfort, Kentucky Attorney General of Kentucky
Aspen Roberts
Assistant Attorney General
Frankfort, Kentucky
-5- | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487211/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/18/2022 09:06 AM CST
- 351 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. GREER
Cite as 312 Neb. 351
State of Nebraska, appellee, v.
Christina M. Greer, appellant.
___ N.W.2d ___
Filed September 2, 2022. No. S-21-601.
1. Jury Instructions: Appeal and Error. Whether a jury instruction is
correct is a question of law, regarding which an appellate court is obli-
gated to reach a conclusion independent of the determination reached
by the trial court.
2. Trial: Expert Witnesses: Appeal and Error. An appellate court reviews
the record de novo to determine whether a trial court has abdicated its
gatekeeping function when admitting expert testimony.
3. ____: ____: ____. When the trial court has not abdicated its gatekeeping
function when admitting expert testimony, an appellate court reviews
the trial court’s decision to admit or exclude the evidence for an abuse
of discretion.
4. Sentences: Appeal and Error. A sentence imposed within the statutory
limits will not be disturbed on appeal in the absence of an abuse of dis-
cretion by the trial court.
5. Judges: Words and Phrases. A judicial abuse of discretion exists
only when the reasons or rulings of a trial judge are clearly untenable,
unfairly depriving a litigant of a substantial right and denying a just
result in matters submitted for disposition.
6. Jury Instructions: Appeal and Error. Jury instructions are subject
to harmless error review, and an erroneous jury instruction requires
reversal only if the error adversely affects the substantial rights of the
complaining party.
7. Jury Instructions: Proof: Appeal and Error. In an appeal based upon
a claim of an erroneous jury instruction, the appellant has the burden
to show that the questioned instruction was prejudicial or otherwise
adversely affected a substantial right of the appellant.
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. GREER
Cite as 312 Neb. 351
8. Rules of Evidence: Expert Witnesses. Four preliminary questions
must be answered in order to determine whether an expert’s testi-
mony is admissible: (1) whether the witness qualifies as an expert
pursuant to Neb. Rev. Stat. § 27-702 (Reissue 2016); (2) whether
the expert’s testimony is relevant; (3) whether the expert’s testimony
will assist the trier of fact to understand the evidence or determine
a controverted factual issue; and (4) whether the expert’s testimony,
even though relevant and admissible, should be excluded in light of
Neb. Rev. Stat. § 27-403 (Reissue 2016) because its probative value
is substantially outweighed by the danger of unfair prejudice or other
considerations.
9. Trial: Expert Witnesses. A trial court acts as a gatekeeper to ensure
the evidentiary relevance and reliability of an expert’s opinion, and this
gatekeeping function entails a preliminary assessment whether the rea-
soning or methodology underlying the testimony is valid and whether
that reasoning or methodology properly can be applied to the facts
in issue.
10. ____: ____. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S.
579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), does not create a special
analysis for answering questions about the admissibility of all expert
testimony. Not every attack on expert testimony amounts to a Daubert
claim. If a witness is not offering opinion testimony, that witness’ testi-
mony is not subject to inquiry pursuant to Daubert.
11. Sentences: Appeal and Error. When sentences imposed within stat-
utory limits are alleged on appeal to be excessive, the appellate
court must determine whether the sentencing court abused its discre-
tion in considering well-established factors and any applicable legal
principles.
12. Judges: Words and Phrases. A judicial abuse of discretion exists only
when a trial court’s decision is based upon reasons that are untenable
or unreasonable or if its action is clearly against justice or conscience,
reason, and evidence.
13. Sentences. When imposing a sentence, a sentencing judge should con-
sider the defendant’s (1) age, (2) mentality, (3) education and experi-
ence, (4) social and cultural background, (5) past criminal record or
record of law-abiding conduct, and (6) motivation for the offense, as
well as (7) the nature of the offense and (8) the amount of violence
involved in the commission of the crime.
14. ____. The sentencing court is not limited to any mathematically applied
set of factors, but the appropriateness of the sentence is necessarily a
subjective judgment that includes the sentencing judge’s observations
- 353 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. GREER
Cite as 312 Neb. 351
of the defendant’s demeanor and attitude and all the facts and circum-
stances surrounding the defendant’s life.
15. ____. It is within the discretion of the trial court to direct that sen-
tences imposed for separate crimes be served consecutively. The test
of whether consecutive sentences may be imposed under two or more
counts charging separate offenses, arising out of the same transaction or
the same chain of events, is whether the offense charged in one count
involves any different elements than an offense charged in another
count. The test is whether some additional evidence is required to prove
one of the other offenses.
Appeal from the District Court for Sarpy County: George
A. Thompson, Judge. Affirmed.
Thomas P. Strigenz, Sarpy County Public Defender, for
appellant.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Heavican, C.J.
INTRODUCTION
The defendant, Christina M. Greer, was charged with 13
counts in four separate cases, all relating to allegations of
sexual assault of a child. Greer was convicted of 11 of those
counts and sentenced to an aggregate sentence of 64 to 102
years’ imprisonment. Greer appeals. We affirm.
BACKGROUND
Charges Against Greer.
Greer was charged in four separate cases. In the first case,
she was originally charged with one count of first degree sex-
ual assault of W.F. (also known as A.F.), a 13-year-old boy who
was friends with Greer’s 11-year-old daughter. That charge was
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. GREER
Cite as 312 Neb. 351
later amended to one count of first degree sexual assault of a
child and two counts of witness tampering.
In the second case, Greer was charged with three counts of
first degree sexual assault of a child, J.H., a 13-year-old boy
who was friends with Greer’s 9-year-old son. In the third case,
Greer was charged with six counts of intentional child abuse of
A.F. and J.H.; of Greer’s daughter; and of A.R., A.J., and C.P.,
identified as friends of Greer’s daughter. In the fourth case,
Greer was charged with child enticement of P.M., a 13-year-old
boy who attended school with Greer’s daughter.
These four cases were consolidated for trial on January 21,
2021.
Pretrial Motions.
Greer was first charged in March 2018, but did not come to
trial until March 2, 2021. Since that time, Greer has had three
attorneys: appointed counsel; retained counsel; and at trial, the
Sarpy County public defender, who was appointed on April 2,
2020, and represents Greer in this appeal.
As relevant to this appeal, the primary reason for the delay
in Greer’s trial was various motions filed by the State under
Neb. Rev. Stat. § 27-404 (Reissue 2016) (other bad acts) and
Neb. Rev. Stat. § 27-414 (Reissue 2016) (prior sexual con-
duct). Generally, the State sought to introduce evidence that
Greer (1) had engaged in uncharged sex acts with other chil-
dren, (2) had engaged in uncharged sex acts with already iden-
tified victims, and (3) was “grooming” the children through the
supplying of alcohol and marijuana edibles. In support of its
contention that evidence relating to Greer’s grooming of chil-
dren who came to her home, the State offered the testimony of
Colleen Brazil, the forensic interview program manager at a
child advocacy center.
The first such motion regarding §§ 27-404 and 27-414 was
filed on December 26, 2018. At a hearing on February 7, 2019,
Brazil testified about the concept of “grooming” and the behav-
iors it encompasses. Greer’s daughter and J.H. testified about
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. GREER
Cite as 312 Neb. 351
Greer’s conduct in the cases wherein each was a named victim.
The State’s motion was granted on March 1.
On August 6, 2019, Greer sought a motion in limine to
prevent the State from mentioning or using the term “groom-
ing” without the court’s permission, as it was a “term of art
that requires expert testimony.” On August 7, the district court
granted the State’s motion to continue and noted that it would
take up the motions in limine at a later hearing. The district
court held a hearing on Greer’s motions in limine on March 3,
2020, and denied the motions, noting that it had addressed the
issue in various § 27-404 hearings.
Brazil’s Testimony.
Trial began on March 2, 2021. On March 3, Greer filed
a motion seeking an order to strike Brazil as an expert wit-
ness, as well as to strike her testimony regarding grooming,
because such theories violated standards set forth in Daubert
v. Merrell Dow Pharmaceuticals, Inc., 1 and Schafersman v.
Agland Coop. 2
The State called Brazil to testify on March 4, 2021. Greer
objected when the State asked Brazil if she was familiar with
the term “grooming.” The district court initially indicated
that “grooming” was not an appropriate topic for a Daubert
hearing and that Brazil was an expert in the field of child
advocacy. But the district court ultimately agreed to hold a
Daubert hearing.
At that hearing, Brazil once again testified on the concept
of grooming. Brazil also testified that she knew very little
about the facts of Greer’s case and that she would not offer
an opinion as to whether Greer’s alleged victims were, in fact,
groomed by Greer. The State also offered three court opinions
and an article about grooming.
1
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993).
2
Schafersman v. Agland Coop, 262 Neb. 215, 631 N.W.2d 862 (2001).
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In ruling for the State, the court indicated that it did not
think Daubert should apply, but that the Nebraska Court of
Appeals’ opinion in State v. Edwards 3 held that Daubert did
apply. The district court explicitly noted it believed that the
difference between the Edwards case and Greer’s situation
was based on the fact that the expert in Edwards specifically
opined that the defendant in that case had engaged in groom-
ing. The district court found that Brazil was an expert and
allowed her to testify, but noted that the State should not
stray into questions about whether Greer’s actions amounted
to grooming.
When Greer’s counsel sought to clarify the grounds of the
court’s ruling, the court explained that it was ruling that Brazil
was a qualified expert, that grooming was part of her expertise,
that there was sufficient peer review on the topic of grooming,
and that the evidence was more probative than prejudicial, but
that it also believed Daubert did not apply because Brazil was
not opining on whether Greer’s conduct amounted to groom-
ing. Brazil then testified at trial, subject to Greer’s continu-
ing objection.
The jury ultimately found Greer guilty of counts 1 through
3 and 5 through 12, and not guilty of counts 4 (sexual assault
of a child) and 13 (child enticement). Greer was sentenced to
a total of 64 to 102 years’ imprisonment, or 25 to 40 years’ for
the three counts of first degree sexual assault of a child, 2 to 3
years’ imprisonment on the six counts of child abuse, and 1 to
2 years’ imprisonment on the two counts of witness tampering.
The sentences were ordered to be served consecutively, except
that the 25-to-40-year sentence on count 6 was ordered to run
concurrent to Greer’s other sentences.
Jury Instructions.
Prior to closing arguments, the district court instructed the
jury, then took a brief recess. After the recess, the jury was
3
State v. Edwards, 28 Neb. App. 893, 949 N.W.2d 799 (2020).
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informed that instruction No. 4, the definition of the term
“penetration,” while taken from the Nebraska pattern jury
instructions, 4 was incomplete. As such, over Greer’s objection,
the instruction was revised to mirror the pattern instruction and
was read again to the jury.
Greer appeals from her convictions and sentences.
ASSIGNMENTS OF ERROR
Greer assigns, restated, that the district court erred in (1) the
procedure utilized in instructing the jury as to the definitions
included in instruction No. 4, specifically of the term “penetra-
tion”; (2) allowing Brazil to testify as an expert on the issue of
grooming; and (3) imposing excessive sentences.
STANDARD OF REVIEW
[1] Whether a jury instruction is correct is a question of
law, regarding which an appellate court is obligated to reach
a conclusion independent of the determination reached by the
trial court. 5
[2,3] An appellate court reviews the record de novo to
determine whether a trial court has abdicated its gatekeeping
function when admitting expert testimony. 6 When the trial
court has not abdicated its gatekeeping function, an appellate
court reviews the trial court’s decision to admit or exclude the
evidence for an abuse of discretion. 7
[4,5] A sentence imposed within the statutory limits will
not be disturbed on appeal in the absence of an abuse of
discretion by the trial court. 8 A judicial abuse of discre-
tion exists only when the reasons or rulings of a trial judge
are clearly untenable, unfairly depriving a litigant of a
4
NJI2d Crim. 4.6.
5
State v. Pope, 305 Neb. 912, 943 N.W.2d 294 (2020).
6
See Hemsley v. Langdon, 299 Neb. 464, 909 N.W.2d 59 (2018).
7
See id.
8
State v. Blake, 310 Neb. 769, 969 N.W.2d 399 (2022).
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substantial right and denying a just result in matters sub
mitted for disposition. 9
ANALYSIS
Jury Instructions.
Greer first assigns that the district court erred in instruct-
ing the jury when it initially read an incomplete version of
instruction No. 4, then later read the complete version of that
same instruction. Greer asserts that the second reading of that
particular instruction, which included the definition of the term
“penetration,” was prejudicial to her because it emphasized
penetration to the jury in a case where she had strongly denied
committing an act of penetration. Greer suggests that at a mini-
mum, the district court ought to have read again all instruc-
tions in order to de-emphasize any one instruction.
[6,7] Jury instructions are subject to harmless error review,
and an erroneous jury instruction requires reversal only if the
error adversely affects the substantial rights of the complain-
ing party. 10 In an appeal based upon a claim of an erroneous
jury instruction, the appellant has the burden to show that the
questioned instruction was prejudicial or otherwise adversely
affected a substantial right of the appellant. 11
We find Greer’s arguments on appeal unpersuasive. We
first observe that the only instruction in our record relevant
to this assignment of error is the complete instruction No. 4,
read to the jury upon the court’s realization that the initial
instruction No. 4 was incomplete and later sent back with
the jury for its use during deliberations. Greer had the bur-
den to show that she was prejudiced by the court’s giving of
the original instruction. Yet Greer has provided no record of
what that initial, incomplete instruction contained. We can-
not determine whether Greer was prejudiced by the second
9
Id.
10
State v. Dady, 304 Neb. 649, 936 N.W.2d 486 (2019).
11
State v. Bao, 263 Neb. 439, 640 N.W.2d 405 (2002).
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reading of the instruction if we do not know the full contents
of the first instruction.
And even if we could proceed based on our limited knowl-
edge of the contents of the incomplete instruction, we would
still conclude that Greer has failed to meet her burden to show
that the instruction procedure followed was prejudicial. First,
the cases upon which Greer relies—State v. Abram 12 and State
v. Claycamp 13—are distinguishable.
In Abram, the written jury instruction, which was not
objected to by the defendant or the State, read in relevant part
that “‘[t]he fact that the [d]efendant did not testify must be
considered by you as an admission of guilt . . . .’” 14 Copies of
the instruction containing this plainly incorrect language were
provided to the members of the jury to use while deliberating.
However, in orally instructing the jury, the court stated that
“‘[t]he fact that the [d]efendant did not testify must not be
considered by you as an admission of guilt . . . .’” 15 In other
words, the correct version of the instruction was read to the
jury, but the incorrect language was provided to the jury in
written form.
We held in Abram that this was not structural error, but sub-
ject to harmless error analysis. We concluded that even though
the correct language was actually read to the jury, the error was
not harmless. In so concluding, we reasoned that the incorrect
instructions were emphasized by virtue of having been written
and available to the jury during its deliberations.
In Claycamp, the defendant raised a defense of self-defense
at trial. At the conclusion of evidence, the court read to the jury
its instructions. The State and the defense then made closing
arguments. In response to some comments made by the State
in its argument, the court admonished the jury that it was
12
State v. Abram, 284 Neb. 55, 815 N.W.2d 897 (2012).
13
State v. Claycamp, 14 Neb. App. 675, 714 N.W.2d 455 (2006).
14
State v. Abram, supra note 12, 284 Neb. at 60, 815 N.W.2d at 903.
15
Id.
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“‘not to consider any sort of [the victim’s] conduct or the
consequences of his conduct. This is about the defendant . .
. .’” 16 The Court of Appeals noted that the admonishment to
the jury was contradictory to the earlier instructions regarding
the defendant’s defense of self-defense. The Court of Appeals
applied a harmless error standard and concluded that the error
was not harmless and that reversal was warranted.
Unlike Abram and Claycamp, where the instruction provided
was inconsistent with other instructions, was incorrect, or both,
here, there is no suggestion that the initial part of instruction
No. 4 read to the jury was incorrect—only that it was incom-
plete. This is reflected in the exchange between the court and
counsel when the court explained that it would be adding to
the instruction and reading it again. In fact, as we have noted
above, this record does not even include the language origi-
nally read to the jury—whether it be the original instruction the
court read from or a transcript of the court’s verbal instruction
as it would appear in the bill of exceptions.
In this case, we apply a harmless error standard and decline
to find any. First, this court lacks a complete record. Moreover,
there is no allegation that the initial instruction as read to the
jury was incorrect, but only that it was incomplete. Nor is there
any allegation that the final instruction read to the jury and sent
back with the jury during its deliberations was incorrect. We
note Greer’s argument that the reading again of the definition
of penetration emphasized that concept to the jury. However,
we conclude that it is not possible to determine whether any
alleged emphasis would have helped or harmed Greer, espe-
cially where Greer has directed us to no authority on point.
Greer has failed to meet her burden to show that she was
prejudiced by the procedure followed by the district court with
respect to instruction No. 4. As such, we find no merit to this
assignment of error.
16
State v. Claycamp, supra note 13, 14 Neb. App. at 680, 714 N.W.2d at
459.
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Brazil’s Testimony.
In Greer’s second assignment of error, she assigns that the
district court erred in allowing Brazil to testify as an expert
on the issue of grooming. We construe Greer’s brief to argue
that the district court did not “adequately demonstrate specific
findings on the record that it had performed its duty as a gate-
keeper to find her as an expert on the issues of grooming.” 17
Greer further asserts that “grooming [was not] a scientifically
valid methodology.” 18
[8] Neb. Rev. Stat. § 27-702 (Reissue 2016) provides that
“[i]f scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to deter-
mine a fact in issue, a witness qualified as an expert by knowl-
edge, skill, experience, training, or education, may testify
thereto in the form of an opinion or otherwise.” Four prelimi-
nary questions must be answered in order to determine whether
an expert’s testimony is admissible: (1) whether the witness
qualifies as an expert pursuant to § 27-702; (2) whether the
expert’s testimony is relevant; (3) whether the expert’s testi-
mony will assist the trier of fact to understand the evidence
or determine a controverted factual issue; and (4) whether the
expert’s testimony, even though relevant and admissible, should
be excluded in light of Neb. Rev. Stat. § 27-403 (Reissue 2016)
because its probative value is substantially outweighed by the
danger of unfair prejudice or other considerations. 19
[9,10] Under our Daubert 20 and Schafersman 21 jurispru-
dence, a “trial court acts as a gatekeeper to ensure the evi-
dentiary relevance and reliability of an expert’s opinion,” and
this gatekeeping function “entails a preliminary assessment
17
Brief for appellant at 22.
18
Id.
19
City of Lincoln v. Realty Trust Group, 270 Neb. 587, 705 N.W.2d 432
(2005).
20
Daubert v. Merrell Dow Pharmaceuticals, Inc., supra note 1.
21
Schafersman v. Agland Coop, supra note 2.
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whether the reasoning or methodology underlying the tes-
timony is valid and whether that reasoning or methodology
properly can be applied to the facts in issue.” 22 Still, “Daubert
does not create a special analysis for answering questions about
the admissibility of all expert testimony. Not every attack on
expert testimony amounts to a Daubert claim. If a witness is
not offering opinion testimony, that witness’ testimony is not
subject to inquiry pursuant to Daubert.” 23
Finally, we have noted that
courts need not reinvent the wheel each time that special-
ized evidence is adduced. The proponent need not contin-
uously go through the exercise of re-proving reliability of
the same evidence in every case. Instead, once a Nebraska
trial court has actually examined and assessed the reli-
ability of a particular scientific wheel under Daubert, and
its determination has been affirmed on appeal, then other
courts may simply take judicial notice and ride behind.
In such cases, the proponent establishes a prima facie
case of reliability by relying on precedent, and the burden
shifts to the opponent to show that recent developments
raise doubts about the validity of previously relied-upon
theories or techniques. 24
We find no merit to Greer’s arguments on appeal. First, we
agree with the district court that Daubert was inapplicable
in this case. As noted above, our case law is clear that not
every instance of expert testimony is a Daubert issue. In this
case, prior to testifying, Brazil indicated that she did not have
any particular knowledge about Greer or the alleged victims
in this case and that she was not prepared to testify as to
whether Greer’s conduct qualified as grooming. And indeed,
22
State v. Robinson, 272 Neb. 582, 618, 724 N.W.2d 35, 68 (2006), abro
gated on other grounds, State v. Thorpe, 280 Neb. 11, 783 N.W.2d 749
(2010).
23
State v. Schreiner, 276 Neb. 393, 405, 754 N.W.2d 742, 754 (2008).
24
State v. Casillas, 279 Neb. 820, 838, 782 N.W.2d 882, 898 (2010).
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her testimony was in conformity with her testimony at pre-
trial hearings—at no point did she offer any opinion about
Greer’s conduct.
Moreover, even if we were to conclude that Daubert was
applicable, a decision we need not reach here, the record shows
that the district court held a Daubert hearing. At that hearing,
Brazil testified to her many years of experience in conducting
and monitoring forensic interviews of child sexual assault vic-
tims, including attending and teaching seminars on that topic.
We find no abuse of discretion in the district court’s conclu-
sion, set out in the record, that Brazil qualified as an expert and
that her testimony was admissible.
We note also the confusion that seems to have resulted from
the Court of Appeals’ opinion in Edwards, which we find dis-
tinguishable and inapplicable. 25 The district court concluded
the factor that made Daubert an issue in Edwards was that
the pediatrician who testified regarding grooming in that case
testified the defendant’s actions were, in fact, grooming. The
distinction noted by the district court is in keeping with our
case law as set out above and is consistent with our conclusion
in this case. We further note that to the extent that Edwards
could be read to categorically reject such testimony, it is
disapproved.
There is no merit to Greer’s assignment of error regarding
Brazil’s testimony.
Excessive Sentences.
Finally, Greer assigns that the sentences imposed upon her
were excessive. As an initial matter, we note that all of Greer’s
sentences were within statutory limits and that the record
shows the court considered Greer’s presentence investigation
and all of the relevant factors as set forth in case law.
Instead, Greer primarily takes issue with the consecutive
nature of her sentences:
25
State v. Edwards, supra note 3.
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The record reflects that counts 7 [through] 12 all arose
out of the same transactions and series of events. The
State agrees with this assertion as it filed a motion to
consolidate stating the same. . . . Because child abuse
allegations all arose out of the same times as count 1, they
therefore should be concurrent with each other as well as
to count 1.
Additionally, counts 5 and 6 should be concurrent with
one another as they are the same victim and are part of
the same series and chain of events. Finally, the evidence
shows that counts 2 and 3 all arose out of the same series
of transactions.
It is logical that the charges should be served
concurrently. 26
[11,12] When sentences imposed within statutory limits are
alleged on appeal to be excessive, the appellate court must
determine whether the sentencing court abused its discretion in
considering well-established factors and any applicable legal
principles. 27 A judicial abuse of discretion exists only when a
trial court’s decision is based upon reasons that are untenable
or unreasonable or if its action is clearly against justice or con-
science, reason, and evidence. 28
[13,14] When imposing a sentence, a sentencing judge
should consider the defendant’s (1) age, (2) mentality, (3)
education and experience, (4) social and cultural background,
(5) past criminal record or record of law-abiding conduct,
and (6) motivation for the offense, as well as (7) the nature
of the offense and (8) the amount of violence involved in
the commission of the crime. 29 The sentencing court is not
limited to any mathematically applied set of factors, but the
26
Brief for appellant at 26.
27
State v. Blake, supra note 8.
28
Id.
29
Id.
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appropriateness of the sentence is necessarily a subjective
judgment that includes the sentencing judge’s observations of
the defendant’s demeanor and attitude and all the facts and
circumstances surrounding the defendant’s life. 30
[15] It is within the discretion of the trial court to direct
that sentences imposed for separate crimes be served consecu
tively. 31 The test of whether consecutive sentences may be
imposed under two or more counts charging separate offenses,
arising out of the same transaction or the same chain of events,
is whether the offense charged in one count involves any dif-
ferent elements than an offense charged in another count. The
test is whether some additional evidence is required to prove
one of the other offenses. 32
We turn first to Greer’s contention that her sentence on
count 5 (first degree sexual assault of a child—J.H.) should
run concurrent to her sentence on count 6 (also first degree
sexual assault of a child—J.H.). We observe that, in fact, her
sentence on count 4 was ordered to be served concurrent to
the remainder of her sentences. As such, there is no merit to
this assertion.
Greer also argues that the child abuse counts against her all
arose out of the same transactions and series of events. But
while they involve the same general conduct on Greer’s part,
they also involve six different children and the State had to
separately prove the elements of child abuse as to each of the
children in order to obtain guilty verdicts.
Greer additionally argues that the child abuse counts arose
from the same set of facts as count 1 (first degree sexual
assault of a child—A.F.), and so, the sentences for child abuse
should run concurrently. But the elements the State had to
prove for child abuse are distinct from those for first degree
30
Id.
31
State v. Andersen, 238 Neb. 32, 468 N.W.2d 617 (1991).
32
Id.
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sexual assault of a child. We find no abuse of discretion in the
district court’s order sentencing Greer consecutively for any of
these convictions.
Finally, Greer argues that the tampering with a witness
counts arise from the same series of transactions. Again, as
to these counts, the State had to prove the elements of those
crimes as occurring on different occasions, and thus, different
evidence was required.
Because all of the counts required the proving of different
elements or different evidence, there was no abuse of discre-
tion in the district court’s sentences. There is no merit to this
assignment of error.
CONCLUSION
The district court’s judgments and convictions are affirmed.
Affirmed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487207/ | Nebraska Supreme Court Online Library
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11/18/2022 09:05 AM CST
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State of Nebraska, appellant,
v. Tracy L. Space, appellee.
___ N.W.2d ___
Filed September 16, 2022. No. S-21-837.
1. Judgments: Speedy Trial: Appeal and Error. Generally, a trial court’s
determination as to whether charges should be dismissed on speedy trial
grounds is a factual question which will be affirmed on appeal unless
clearly erroneous.
2. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach
an independent conclusion irrespective of the decision made by the
court below.
3. Speedy Trial. Under Nebraska’s speedy trial statutes, criminal defend
ants must be brought to trial by a 6-month deadline, but certain periods
of delay are excluded and thus can extend the deadline.
4. ____. The primary burden is on the State to bring an accused person to
trial within the time provided by law.
5. ____. If a defendant is not brought to trial by the 6-month speedy trial
deadline, as extended by any excluded periods, he or she is entitled to
absolute discharge from the offense charged and for any other offense
required by law to be joined with that offense.
6. Speedy Trial: Proof. When a motion for absolute discharge is filed, the
State bears the burden to show, by the greater weight of the evidence,
that one or more of the excluded time periods under Neb. Rev. Stat.
§ 29-1207(4) (Reissue 2016) are applicable.
7. Speedy Trial. To calculate the time for speedy trial purposes, a court
must exclude the day the complaint was filed, count forward 6 months,
back up 1 day, and then add any time excluded under Neb. Rev. Stat.
§ 29-1207(4) (Reissue 2016) to determine the last day the defendant can
be tried.
8. Statutes. Statutory interpretation begins with the text, and the text is to
be given its plain and ordinary meaning. A court will not read meaning
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into a statute that is not warranted by the legislative language or read
anything plain, direct, or unambiguous out of a statute.
9. Statutes: Intent. When interpreting a statute, a court must give effect,
if possible, to all the several parts of a statute and no sentence, clause,
or word should be rejected as meaningless or superfluous if it can
be avoided.
10. Words and Phrases. A legal term of art is a word or phrase having
a specific, precise meaning in a given specialty apart from its general
meaning in ordinary contexts.
11. Statutes: Words and Phrases. When legal terms of art are used in stat-
utes, they are to be construed according to their term of art meaning.
12. Speedy Trial: Words and Phrases. The term “continuance,” as used
in Neb. Rev. Stat. § 29-1207(4)(b) (Reissue 2016), refers to the cir-
cumstance where a court proceeding set for one date is postponed to a
future date.
13. Speedy Trial. The text of Neb. Rev. Stat. § 29-1207(4)(b) (Reissue
2016) plainly requires that a “continuance” must be granted at the
request or with the consent of the defendant or his or her counsel, before
the resulting period of delay is excludable.
14. Criminal Law: Appeal and Error. Under the invited error doctrine, a
defendant in a criminal case may not take advantage of an alleged error
which the defendant invited the trial court to commit.
15. Criminal Law: Speedy Trial: Waiver. A criminal defendant’s failure
to demand a trial within the 6-month statutory speedy trial period, or to
object to a trial date set beyond such period, does not constitute a waiver
of his or her speedy trial rights.
Appeal from the District Court for Buffalo County: Ryan C.
Carson, Judge. Exception overruled.
Shawn R. Eatherton, Buffalo County Attorney, and Kari R.
Fisk for appellant.
Lydia Davis, Buffalo County Public Defender, for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
During a scheduling hearing in a felony criminal case, the
district court proposed a trial date and asked defense counsel,
“does that work?” to which counsel replied, “Yes, thank you.”
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The court then scheduled trial for that date. No one mentioned
speedy trial during the scheduling hearing, but it is undisputed
that the proposed trial date was more than 6 months after the
date the information was filed.
Shortly before the scheduled trial date, the defendant moved
for absolute discharge, asserting she had not been brought to
trial before the running of the 6-month speedy trial period
under Neb. Rev. Stat. § 29-1207 (Reissue 2016). The district
court granted absolute discharge, and the State filed this excep-
tion proceeding.
The State’s primary argument is that by agreeing to an initial
trial date that was outside the 6-month statutory speedy trial
period, the defendant consented to an excludable “period of
delay resulting from a continuance granted” within the mean-
ing of § 29-1207(4)(b). Alternatively, the State argues the
defendant “invit[ed] the Court to commit error in scheduling” 1
and should not have been allowed to rely on such error to
obtain absolute discharge. Finding no merit to the State’s argu-
ments, we overrule the exception.
BACKGROUND
In a two-count information filed on March 5, 2021, Tracy
L. Space was charged with aggravated driving under the influ-
ence, third offense (a Class IIIA felony), and refusal to submit
to a preliminary breath test (a Class V misdemeanor). On
March 9, Space filed a motion for discovery, which the court
granted in an order entered the following day.
On March 25, 2021, the court entered a progression order
setting arraignment for May 24, and a “final plea hearing” for
July 22. The progression order stated that “[a]t the conclusion
of the final plea hearing . . . the Court will schedule trial.”
Before the scheduled arraignment on May 24, Space filed a
written waiver of arraignment and entered a plea of not guilty.
All parties appeared for the final plea hearing on July 22,
2021, during which the following exchange took place:
1
Brief for appellant at 8.
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THE COURT: . . . We are set for final plea/pretrial.
[Defense counsel], what is the status?
[Defense counsel:] She is asking — she’s standing on
her not guilty plea, Your Honor.
THE COURT: September 20, 2021, for jury trial; does
that work?
[Defense counsel:] Yes. Thank you.
THE COURT: We’ll set the matter also for final status
hearing the Friday before, September 17th at 11:30 a.m.
Does that also work?
[Defense counsel:] Yes. Thank you.
THE COURT: Ms. Space, we’re going to set your
matter for jury trial on September 20, 2021, at 9 a.m.,
and also for a final status hearing the Friday before,
September 17th at 11:30 a.m. It’s important that you be
here on both times; do you agree to do that?
DEFENDANT: Yes, Your Honor.
THE COURT: [Defense counsel], I’ll ask that you
write those dates and times down for Ms. Space so she
doesn’t forget.
Ms. Space, you need to understand that today was the
deadline for discovery and also the deadline to [accept
any] plea offers that may be made by the State. Absent a
showing of good cause, the matter will proceed to trial at
your request; do you understand that?
DEFENDANT: Yes, Your Honor.
THE COURT: The Court will allow you to remain out
on your current bond, subject to all the terms and condi-
tions; do you understand?
DEFENDANT: Yes, Your Honor.
THE COURT: And do you have any questions for me?
DEFENDANT: No, Your Honor.
THE COURT: [Defense counsel], anything else?
[Defense counsel:] No. Thank you.
THE COURT: [Counsel for the State]?
[Counsel for the State:] No, Your Honor.
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The issue of speedy trial was not raised or discussed when
the trial date was selected, nor at any other point during the
final plea hearing. After the hearing, the court entered an order,
styled as a journal entry, memorializing the dates set for the
final status hearing and trial.
On September 13, 2021, Space filed a motion for absolute
discharge, asserting a violation of both her statutory and consti-
tutional speedy trial rights. At the hearing on Space’s motion,
the court took judicial notice of the information, the progres-
sion order, Space’s written not guilty plea, the journal entry
memorializing the trial date, and the remainder of the court
file. The State offered a transcript of the July 22 hearing into
evidence, which the court received without objection.
The court then gave counsel an opportunity to present argu-
ment, beginning with the defense. Defense counsel argued that
Space was entitled to absolute discharge because the State
failed to bring her to trial within 6 months of the date the
information was filed and because she had not waived her right
to a speedy trial. Anticipating the State’s argument, defense
counsel urged:
[I]t is improper . . . to allege that some type of responsi-
bility was on the defendant because that’s simply not the
case. It’s not the defendant’s burden to notify the Court
of the speedy trial date, and quite frankly, it’s not the
Court’s burden either. According to the law, the duty is
on the county attorney, it’s on the State, to bring a person
to trial, again, within six months of the filing of the trial
information.
. . . I would remind the Court that at no time in this
case did Ms. Space ask for a continuance. At the final
plea hearing she simply stood on her not guilty plea at
that time. I would submit to the Court that that was not a
request for a continuance because, quite frankly, it wasn’t.
There was no evidence that she wasn’t immediately ready
for trial.
The State urged the court to overrule the motion for discharge,
reasoning that Space’s acceptance of the September 20, 2021,
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trial date rendered the period between the July 22 hearing
and September 20 excludable under § 29-1207(4)(b). The
State argued:
A period of delay resulting from a continuance granted
at the request or with the consent of the defendant — or
of his or her counsel is what the State’s relying on here,
Your Honor.
....
So when the Court sets that date and the Court asks
[defense counsel] if that’s okay, I don’t know that it
would be appropriate for the State at that point to try to
overrule defense counsel in picking that particular date
because perhaps there were strategic reasons she would
want to have it on [September] 20th. . . .
Regardless of the subjective reasons for why [defense
counsel] said [September 20] would work, the objective
fact is that the period of time from July 22nd through
September 20th, in the State’s view, was a mutually
agreed upon trial date by and through defense counsel
. . . with the consent of defense counsel; and therefore,
under [§] 29-1207(4)(b), an excludable period up through
September 20th, meaning, then, that the motion for dis-
charge was filed in a time period that the speedy trial
clock had not run. So the motion for discharge in the
State’s view should be overruled, Judge.
The court took the matter under advisement.
Thereafter, the court entered an order granting Space’s
motion for absolute discharge. It found the 6-month speedy
trial period had run on September 6, 2021, and it expressly
rejected the State’s argument that by agreeing to the September
20 trial date, Space had consented to a “continuance” of trial.
It reasoned:
[T]he cases [the State] referenced all involved requests
for a continuance, as opposed to initial trial settings.
See State v. Curry, 18 Neb. App. 284, 790 N.W.2d 441
(2010); State v. Turner, 252 Neb. 620, 564 N.W.2d 231
(1997). Moreover, the Nebraska Supreme Court addressed
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this issue more specifically in State v. Alvarez, 189 Neb.
281, 291-92, 202 N.W.2d 604, 610 (1972), wherein it
concluded that the “failure by a defendant to demand a
trial within the time he is required to be brought to trial
. . . or to object at the time trial date is set does not con-
stitute a waiver of his rights[.]” The Court further noted
that “[p]revious holdings of this court that failure of the
accused to demand trial constitutes a waiver of the statu-
tory right are overruled[.]” Id. (citing Barker v. Wingo,
407 U.S. 514 (1972)). While the Court further noted that
the defendant’s inaction may be considered along with
other circumstances when determining whether “good
cause” exists, it cannot alone constitute good cause. Id.
No additional evidence of “good cause” was offered in
this matter.
Presumably because the motion for absolute discharge was
granted on statutory grounds, the court’s order did not address
Space’s constitutional speedy trial claim. The State was granted
leave to docket this exception proceeding pursuant to Neb.
Rev. Stat. § 29-2315.01 (Cum. Supp. 2020). We moved the
matter to our docket on our own motion.
ASSIGNMENT OF ERROR
The State assigns that the district court erred in granting
Space’s motion for absolute discharge.
STANDARD OF REVIEW
[1,2] Generally, a trial court’s determination as to whether
charges should be dismissed on speedy trial grounds is a fac-
tual question which will be affirmed on appeal unless clearly
erroneous. 2 But statutory interpretation presents a question of
law, for which an appellate court has an obligation to reach an
independent conclusion irrespective of the decision made by
the court below. 3
2
State v. Abernathy, 310 Neb. 880, 969 N.W.2d 871 (2022).
3
State v. Chase, 310 Neb. 160, 964 N.W.2d 254 (2021).
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ANALYSIS
Statutory Speedy Trial Principles
[3] The sole question presented is whether the district court
erred in granting Space’s motion for absolute discharge on stat-
utory speedy trial grounds. The statutory right to a speedy trial
is set out in § 29-1207 and Neb. Rev. Stat. § 29-1208 (Reissue
2016). 4 Under these statutes, criminal defendants must be
brought to trial by a 6-month deadline, but certain periods
of delay are excluded and thus can extend the deadline. 5 The
excludable periods are set out in § 29-1207(4)(a) through (f).
In this case, the State’s primary argument rests on the exclud-
able time period set out in subsection (4)(b) of § 29-1207,
which provides:
(4) The following periods shall be excluded in comput-
ing the time for trial:
....
(b) The period of delay resulting from a continuance
granted at the request or with the consent of the defendant
or his or her counsel. . . . A defendant is deemed to have
waived his or her right to speedy trial when the period of
delay resulting from a continuance granted at the request
of the defendant or his or her counsel extends the trial
date beyond the statutory six-month period.
[4-6] We have long recognized that the primary burden is
on the State to bring an accused person to trial within the time
provided by law. 6 If a defendant is not brought to trial by the
6-month speedy trial deadline, as extended by any excluded
periods, he or she is entitled to absolute discharge from the
offense charged and for any other offense required by law to be
joined with that offense. 7 When a motion for absolute discharge
is filed, the State bears the burden to show, by the greater
4
See Abernathy, supra note 2.
5
Id.
6
State v. Coomes, 309 Neb. 749, 962 N.W.2d 510 (2021).
7
Abernathy, supra note 2.
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weight of the evidence, that one or more of the excluded time
periods under § 29-1207(4) are applicable. 8
[7] To calculate the time for speedy trial purposes, a court
must exclude the day the complaint was filed, count forward 6
months, back up 1 day, and then add any time excluded under
§ 29-1207(4) to determine the last day the defendant can be
tried. 9 In this case, the information was filed March 5, 2021,
so absent any excludable time, the State had until September 5,
2021, to bring Space to trial.
The district court found there was 1 excludable day resulting
from Space’s motion for discovery, which was filed on March
9, 2021, and granted the next day. 10 Accounting for this single
excluded day, the court determined the statutory speedy trial
period expired on September 6. Space filed her motion for
absolute discharge approximately 1 week later, on September
13. After concluding the State had proved no excludable time
other than the 1 day related to Space’s discovery motion, the
district court granted absolute discharge.
In this exception proceeding, the State contends the dis-
trict court erred by not also excluding the time period from
July 22 to September 20, 2021. In doing so, it presents two
theories. First, the State suggests that when Space’s counsel
agreed to the September 20 trial date, the period of time lead-
ing up to that date became excludable under § 29-1207(4)(b)
as a “period of delay resulting from a continuance granted at
the request or with the consent of the defendant or his or her
counsel.” Alternatively, the State argues that by accepting the
September 20 trial date, Space “invit[ed] the Court to commit
error,” 11 and she should not have been allowed to rely on such
8
See Coomes, supra note 6.
9
State v. Gnanaprakasam, 310 Neb. 519, 967 N.W.2d 89 (2021).
10
See State v. Washington, 269 Neb. 728, 695 N.W.2d 438 (2005). See, also,
State v. Covey, 267 Neb. 210, 217, 673 N.W.2d 208, 213 (2004) (final
disposition under § 29-1207(4)(a) occurs on date motion is “‘granted or
denied’”).
11
Brief for appellant at 8.
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error to support absolute discharge. We consider each argument
in turn, and ultimately, we reject them both.
Period of Delay Resulting From
Continuance Granted
The State argues that the period between July 22 and
September 20, 2021, was excludable under § 29-1207(4)(b)
as a “period of delay resulting from a continuance granted at
the request or with the consent of the defendant or his or her
counsel.” Space responds that § 29-1207(4)(b) does not apply
because this case did not involve the granting of a “continu-
ance,” but, rather, involved the initial setting of a trial date.
The parties’ competing positions present a question of statutory
interpretation regarding the meaning of the term “continuance”
as used in § 29-1207(4)(b).
Our cases have not expressly defined the term “continu-
ance,” presumably because the term is so commonplace in
legal vernacular that ordinarily there is no confusion sur-
rounding its meaning. As observed by the Nebraska Court of
Appeals, “[I]f it looks like a continuance and sounds like a
continuance, it is a continuance.” 12 But to analyze whether the
State is correct that the period of delay between July 22 and
September 20, 2021, resulted from a “continuance,” we must
first determine the meaning of that term.
According to the State, a “continuance” under § 29-1207(4)(b)
means “any delay or postponement of the 6-month statutory
period that has been requested by or consented to by the
defendant or defense counsel.” 13 We disagree with the State’s
interpretation.
[8,9] Statutory interpretation begins with the text, and the
text is to be given its plain and ordinary meaning. 14 A court
12
State v. Craven, 17 Neb. App. 127, 134, 757 N.W.2d 132, 137 (2008)
(rejecting contention that defense counsel’s request to “reset” hearing was
not request to “continue” hearing within meaning of § 29-1207(4)(b)).
13
Brief for appellant at 11 (emphasis omitted).
14
Nebraska Republican Party v. Shively, 311 Neb. 160, 971 N.W.2d 128
(2022).
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will not read meaning into a statute that is not warranted by
the legislative language or read anything plain, direct, or unam-
biguous out of a statute. 15 When interpreting a statute, a court
must give effect, if possible, to all the several parts of a statute
and no sentence, clause, or word should be rejected as mean-
ingless or superfluous if it can be avoided. 16
[10,11] These settled principles guide our analysis, but we
also observe that the term “continuance” is a legal term of art.
A legal term of art is a word or phrase having a specific, pre-
cise meaning in a given specialty apart from its general mean-
ing in ordinary contexts. 17 When legal terms of art are used
in statutes, they are to be construed according to their term of
art meaning. 18
[12] Black’s Law Dictionary defines “continuance” as the
“adjournment or postponement of a trial or other proceed-
ing to a future date.” 19 This definition is generally consistent
with our cases applying the continuance provision found in
the first sentence of § 29-1207(4)(b), 20 and such a definition
necessarily presumes that before there can be a “continuance”
of a proceeding, there must have been an initial setting. Stated
differently, “continuance,” as it is used in § 29-1207(4)(b),
15
See, id.; State v. Liming, 306 Neb. 475, 945 N.W.2d 882 (2020).
16
State v. Amaya, 305 Neb. 36, 938 N.W.2d 346 (2020).
17
Stone Land & Livestock Co. v. HBE, 309 Neb. 970, 962 N.W.2d 903
(2021); State ex rel. Peterson v. Creative Comm. Promotions, 302 Neb.
606, 924 N.W.2d 664 (2019).
18
Id.
19
Black’s Law Dictionary 400 (11th ed. 2019).
20
See, e.g., Coomes, supra note 6, 309 Neb. at 754, 962 N.W.2d at 516
(finding consent for continuance under § 29-1207(4)(b) when State orally
moved to continue matter for further status hearing “‘a month down the
road,’” and defense counsel said “‘Judge, that’s fine with me’”); Liming,
supra note 15 (finding continuance under § 29-1207(4)(b) when State
asked to continue court-ordered settlement conference to future date and
defendant agreed); State v. Lovvorn, 303 Neb. 844, 932 N.W.2d 64 (2019)
(finding continuance under § 29-1207(4)(b) when defendant moved to
continue pretrial hearing to future date).
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does not broadly refer to the continuous passage of time.
Instead, we hold that “continuance” refers to the circumstance
where a court proceeding set for one date is postponed to a
future date.
We thus reject the State’s invitation to construe
§ 29-1207(4)(b) to apply to any period of delay granted with
the consent of the defendant or defense counsel. The State’s
construction would effectively read the phrase “continuance
granted” out of the statutory text and would allow the trial
court to stop the speedy trial clock between court appearances
simply by asking whether the next scheduled appearance is
agreeable to the defense.
[13] The text of § 29-1207(4)(b) plainly requires that a
“continuance” must be granted at the request or with the con-
sent of the defendant or his or her counsel, before the resulting
period of delay is excludable. No continuance was granted in
this case.
During the July 22, 2021, hearing, defense counsel con-
sented to setting the initial trial date on September 20, but prior
to that hearing, there was no scheduled trial date, so counsel
was not consenting to a continuance of trial or any other previ-
ously scheduled matter. Consequently, the time period between
the July 22 hearing and the September 20 trial date was not a
“period of delay resulting from a continuance granted at the
request or with the consent of the defendant or his or her coun-
sel” and was not excludable under § 29-1207(4)(b).
For the sake of completeness, we also reject any sug-
gestion that Space’s consent to the initial trial date impli-
cated the waiver provision contained in the last sentence of
§ 29-1207(4)(b). That sentence provides: “A defendant is
deemed to have waived his or her right to speedy trial when
the period of delay resulting from a continuance granted at the
request of the defendant or his or her counsel extends the trial
date beyond the statutory six-month period.” 21 Interpreting
this language, we have said, “‘[I]f a defendant requests a
21
§ 29-1207(4)(b).
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continuance that moves a trial date which has been set within
the statutory 6-month period to a date that is outside the
6-month period, that request constitutes a permanent waiver of
the statutory speedy trial right.’” 22 But here, the waiver provi-
sion of § 29-1207(4)(b) was inapplicable, because Space con-
sented to an initial trial date set outside the 6-month period;
she did not request to continue a trial date that was originally
set within the statutory period. 23 There may be a compelling
policy argument that a defendant who accepts an initial trial
date outside the statutory 6-month period is acting in a way
that is fundamentally inconsistent with asserting his or her
statutory speedy trial rights and should therefore be under-
stood to have waived these rights. But expanding the statutory
waiver provision to address such a scenario is a policy matter
properly left to the Legislature.
Invited Error Doctrine
[14] The State’s alternative argument relies on the invited
error doctrine. Under that doctrine, “[a] defendant in a crimi-
nal case may not take advantage of an alleged error which the
defendant invited the trial court to commit.” 24
The State argues that Space invited the trial court to commit
error by agreeing to an initial trial date set outside the 6-month
speedy trial period. Space responds that she did not “invite”
the court to commit a scheduling error, generally noting it was
the judge who proposed the initial trial date, and further noting
22
State v. Riessland, 310 Neb. 262, 266-67, 965 N.W.2d 13, 16 (2021),
quoting State v. Mortensen, 287 Neb. 158, 841 N.W.2d 393 (2014).
23
See State v. Gill, 297 Neb. 852, 901 N.W.2d 679 (2017).
24
State v. Gutierrez, 260 Neb. 1008, 1013, 620 N.W.2d 738, 742 (2001).
See, also, State v. Brock, 245 Neb. 315, 318, 512 N.W.2d 389, 391 (1994)
(“[w]e decide this case on the basis that a defendant in a criminal case
may not take advantage of an alleged error which defendant invited the
court to commit”); State v. Zima, 237 Neb. 952, 956, 468 N.W.2d 377,
380 (1991) (“[i]t is a well-established principle of appellate practice that
a party cannot complain of error which he or she invited the trial court
to commit”).
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the defendant has no duty to object on speedy trial grounds
when the court sets a trial date outside the 6-month speedy
trial period. 25
We find no merit to the State’s suggestion that the doctrine
of invited error should have either estopped Space from mov-
ing for absolute discharge or precluded the court from granting
absolute discharge. As an initial matter, we question whether
the invited error issue is properly before us, as it is not clear
the issue was expressly presented to and considered by the dis-
trict court. 26 But even assuming the issue of invited error was
properly preserved for appellate review, we are not persuaded
it has any application in this case.
First, it is debatable what role, if any, principles like the
invited error doctrine should play in our statutory speedy trial
analysis. The statutory scheme mandated by the Legislature
establishes when the speedy trial period begins to run, how
that period is to be computed, which periods of delay are
excludable, when a defendant is entitled to absolute discharge,
and when a defendant is deemed to have waived the statutory
right to speedy trial. This statutory scheme contains no provi-
sion permitting excludable time to arise as a result of invited
error, nor does it contain any provision forbidding a defend
ant from moving for absolute discharge if that defendant
has “invited” a speedy trial violation. And because it is not
the proper role of the courts to modify the statutory speedy
trial scheme through judicial construction, 27 we question the
25
See State v. Alvarez, 189 Neb. 281, 202 N.W.2d 604 (1972).
26
See State v. Thomas, 303 Neb. 964, 982, 932 N.W.2d 713, 727 (2019)
(“[a]n appellate court will not consider an issue on appeal that was not
presented to or passed upon by the trial court”).
27
See State v. Kinstler, 207 Neb. 386, 299 N.W.2d 182 (1980) (explaining
that courts have no discretion to ignore provisions in §§ 29-1207 and
29-1208). See, also, State v. Williams, 277 Neb. 133, 139, 761 N.W.2d
514, 521 (2009) (recognizing courts will not “change the law because of
what the State perceives as abuse by criminal defendants” in speedy trial
context); Williams, supra note 27 (Wright, J., concurring) (fixing flaws in
statutory speedy trial scheme is proper task for Legislature, not courts).
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propriety of using the invited error doctrine to circumvent
the absolute discharge and waiver provisions established by
the Legislature.
But this case does not require us to decide whether the
invited error doctrine could ever apply to prevent absolute
discharge under the speedy trial statutes. Because even if the
doctrine could be used as the State suggests, this record would
not support a finding that Space “invited” the court to commit
error in setting the trial date.
At the final plea hearing, Space’s counsel advised the court
that her client was standing on her plea of not guilty. The court
reasonably understood this to mean it would be necessary to
set a trial date. But there is nothing in our record suggesting
that Space requested a specific trial date, and certainly nothing
suggesting that she requested a trial date outside the statutory
6-month period. Nor can we infer such a request from the col-
loquy between the court and defense counsel regarding the
proposed trial date.
When the court asked “September 20, 2021, for jury trial;
does that work?” it was asking a scheduling question, not a
speedy trial question. And when defense counsel responded,
“Yes. Thank you,” she was answering that scheduling question.
Defense counsel was neither commenting on the speedy trial
calculation nor agreeing not to move for absolute discharge
once the 6-month period expired. At least for purposes of the
invited error doctrine, we find it significant that the issue of
speedy trial was not raised, expressly or impliedly, when the
court was proposing a trial date.
We pause here to observe that if the issue of speedy trial had
been expressly raised by either the State or the trial court dur-
ing the scheduling discussion, then the series of events which
culminated in absolute discharge could have been averted. A
discussion of speedy trial would presumably have alerted the
court to the fact that the trial date it was proposing was beyond
the 6-month deadline. The court could then have explored with
Space whether she was willing to freely and voluntarily waive
speedy trial until the September 20, 2021, date. If she was not,
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the court could have set trial for a date within the 6-month
speedy trial period.
[15] Finally, we reject the State’s suggestion that defense
counsel “manipulate[d] the Court” 28 by agreeing to a trial date
that was plainly outside the speedy trial period. It is true that
both the prosecutor and the defense counsel owe a duty of
candor to the court, 29 and here, neither attorney advised the
court that the trial date it proposed was outside the 6-month
speedy trial period. But our cases do not require a defendant
to either demand a speedy trial or object to a trial date on
such grounds. 30 As we recognized long ago, a criminal defend
ant’s failure to demand a trial within the 6-month statutory
speedy trial period, or to object to a trial date set beyond such
period, does not constitute a waiver of his or her speedy trial
rights. 31 And here, it is notable that the information necessary
to calculate the speedy trial deadline was equally available to
the court and the prosecutor. On this record, we cannot find
that defense counsel manipulated the court or misrepresented
any material fact regarding the speedy trial clock. Instead, we
question why the State did not alert the trial court to the fact
that the proposed trial date fell outside the 6-month speedy
trial period.
We have long recognized the State has the primary burden
of bringing an accused person to trial within the time pro-
vided by law. 32 And the Legislature has made it “the duty of
the county attorney to bring to the attention of the trial court”
any cases entitled to preferential treatment under the speedy
trial statutes. 33 It follows, then, that in addition to carefully
28
Brief for appellant at 8.
29
See Neb. Ct. R. of Prof. Cond. § 3-503.3 (rev. 2016) (providing that
lawyers shall not knowingly make false statements to tribunal or fail to
correct false statement of material fact or law made to tribunal by lawyer).
30
Alvarez, supra note 25.
31
Id.
32
State v. Hernandez, 309 Neb. 299, 959 N.W.2d 769 (2021).
33
See Neb. Rev. Stat. § 29-1205 (Reissue 2016).
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monitoring the speedy trial deadline, the prosecution should
promptly bring to the trial court’s attention any potential con-
cerns regarding the defendant’s right to a speedy trial.
On this record, the trial court correctly found there was just
1 day of excludable time under § 29-1207(4), and it correctly
concluded the State failed to bring Space to trial before the
running of the 6-month speedy trial period. Under § 29-1208,
Space was entitled to absolute discharge.
CONCLUSION
For the foregoing reasons, the exception is overruled.
Exception overruled.
Freudenberg, J., dissenting.
I respectfully dissent from the majority opinion based upon
the reasoning in my concurring opinions in State v. Coomes,
309 Neb. 749, 962 N.W.2d 510 (2021), and State v. Bixby, 311
Neb. 110, 971 N.W.2d 120 (2022). Through judicial construc-
tion, this court has improperly created a statutory speedy trial
scheme that is unsupported by the language of the relevant
statutes. The majority opinion in this matter further expands
the application of such improperly created scheme.
To fully understand the genesis of our judicially created
speedy trial scheme, we must recall situations represented by
cases like that decided by the U.S. Supreme Court in Barker
v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101
(1972). In that matter, a Kentucky prosecuting authority did
not bring a murder suspect to trial for more than 5 years after
his arrest. The significant delay was due in large part to tacti-
cal continuances sought by the prosecutors. This and similar
situations refocused federal and state judiciaries upon the
meaningful enforcement of constitutional speedy trial rights.
It further spurred state legislatures to pass statutory speedy
trial legislation.
In 1971, Nebraska passed 1971 Neb. Laws, L.B. 436, cre-
ating the State’s first statutory speedy trial right which was
separate and distinct from existing constitutional speedy trial
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provisions. Since that time, only a few revisions to the statu-
tory framework have occurred, none of which are material to
this matter or the basis of this dissent.
The Nebraska statutory speedy trial scheme is set forth in
Neb. Rev. Stat. §§ 29-1201 through 29-1209 (Reissue 2016
& Cum. Supp. 2020). The nuts and bolts of the speedy trial
scheme are found in § 29-1207, which states:
(1) Every person indicted or informed against for any
offense shall be brought to trial within six months, and
such time shall be computed as provided in this section.
(2) Such six-month period shall commence to run from
the date the indictment is returned or the information
filed . . . .
(3) If a defendant is to be tried again following a mis-
trial, an order for a new trial, or an appeal or collateral
attack, such period shall commence to run from the date
of the mistrial, order granting a new trial, or the mandate
on remand.
Subsection (4) of § 29-1207 sets forth a number of events
which create periods of excludable time under the statutory
speedy trial calculations.
Section 29-1208 creates the remedy of “absolute discharge”
if a defendant is not brought to trial within the 6-month period
established in § 29-1207, as “extended by excluded periods.”
Section 29-1205 directs the trial courts to give preference to
criminal cases over civil cases in its trial settings and directs
county attorneys “to bring to the attention of the trial court
any cases falling within this subdivision, and he [or she] shall
generally advise the court of facts relevant in determining the
order of cases to be tried.”
The first time this court interpreted the new statutory speedy
trial scheme was in State v. Alvarez, 189 Neb. 281, 202 N.W.2d
604 (1972). In Alvarez, the defendant’s trial was set more
than 6 months after the applicable statutory starting point of
the speedy trial clock. The record was “completely silent as
to what, if anything, occurred between the court, defendant,
and his counsel at the time the order setting the trial date was
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entered.” Id. at 285, 202 N.W.2d at 607. The defendant moved
for absolute discharge pursuant to § 29-1208 after expiration
of the applicable 6-month period. A hearing was held, and
the court found that “‘good cause’” existed for the court’s
delayed trial setting. Alvarez, 189 Neb. at 286, 202 N.W.2d
at 607. Pursuant to the excludable periods established under
§ 29-1207(4), “good cause” could be the basis for “[o]ther
periods of delay not specifically enumerated” in that section.
The defendant in Alvarez ultimately appealed the trial court’s
ruling to this court, which upheld the trial court’s finding of
good cause in affirming the defendant’s conviction. In doing
so, this court took the opportunity to address several issues
relating to Nebraska’s recently passed speedy trial statutes.
This court established that “[t]he primary burden is upon the
State, that is, the prosecutor and the court, to bring the accused
person to trial within the time provided by law.” Id. at 291,
202 N.W.2d at 610. This court also placed the burden of proof
upon the prosecution to prove the existence of one or more of
excludable periods of time provided for by § 29-1207(4). See
Alvarez, supra.
However, this court then went well beyond what was
required for the establishment of necessary procedures to affect
the reasonable application of this new statutory speedy trial
scheme when discussing what does and does not constitute a
defendant’s waiver of the statutory right to absolute discharge.
Our discussion of waiver was unmoored from the relevant
statutory language and inconsistent with this court’s recognized
implementation of “waiver” principles applicable to other stat-
utorily created rights.
In the Alvarez opinion, this court identified one of the issues
to be addressed as follows: “When the trial court sets a trial
date which is more than 6 months after the filing of the infor-
mation, must the defendant immediately take exception thereto,
or may he wait for the 6-month period to elapse and then file
a motion for discharge?” Id. at 287-88, 202 N.W.2d at 608. In
answering, this court stated:
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A failure by a defendant to demand a trial within the time
he [or she] is required to be brought to trial as provided
by sections 29-1205 to 29-1209, R. S. Supp., 1971, or to
object at the time trial date is set does not constitute a
waiver of [the defendant’s] rights under either the statutes
or the Constitution of Nebraska, but is a factor which,
while not constituting good cause by itself, may be con-
sidered along with other circumstances in determining
whether there was “good cause” for a delay . . . .
State v. Alvarez, 189 Neb. 281, 291-92, 202 N.W.2d 604, 610
(1972).
This court cited Barker v. Wingo, 407 U.S. 514, 92 S. Ct.
2182, 33 L. Ed. 2d 101 (1972), to support that position. Barker
placed “the primary burden on the courts and the prosecutors
to assure that cases are brought to trial.” 407 U.S. at 514.
Further, the Court in Barker pointed out that a defendant’s
constitutional speedy trial right is not viewed in the same man-
ner as other fundamental constitutional rights when weighing a
defendant’s inaction to enforce such right:
We reject, therefore, the rule that a defendant who fails
to demand a speedy trial forever waives [the] right.
This does not mean, however, that the defendant has no
responsibility to assert [the] right. We think the better rule
is that the defendant’s assertion of or failure to assert [the]
right to a speedy trial is one of the factors to be consid-
ered in an inquiry into the deprivation of the right.
407 U.S. at 528. Later, in discussing the “defendant’s responsi-
bility to assert [the] right,” the Barker Court stated:
The defendant’s assertion of [the] speedy trial right, then,
is entitled to strong evidentiary weight in determining
whether the defendant is being deprived of the right. We
emphasize that failure to assert the right will make it dif-
ficult for a defendant to prove that he [or she] was denied
a speedy trial.
407 U.S. at 531-32.
Even though the U.S. Supreme Court in Barker was clearly
reviewing a fundamental right under the Constitution rather
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than a statutory right, it presented a more balanced approach
than that adopted by this court in Alvarez, supra, for a statuto-
rily created right. By describing in Alvarez the failure to assert
the speedy trial right as only a consideration of unspecified
weight in a good cause analysis, rather than a consideration of
strong evidentiary weight that will make it difficult to prove
the denial of the right, this court in Alvarez relieved a defend
ant of a duty to assert the right to an extent that is incon
sistent with Barker.
This approach to a defendant’s failure to assert the speedy
trial right is especially untenable in the context of a statutory
right to speedy trial. The 6-month statutory speedy trial right
is separate from the constitutional speedy trial right. State v.
Lee, 282 Neb. 652, 807 N.W.2d 96 (2011). Thus, for example,
outside the lens of ineffective assistance claims, the statutory
right to a speedy trial is not cognizable in a postconviction
proceeding, because the statutory speedy trial right is not a
constitutional right. Id. Thus, not only did we misunderstand
Barker, but our reliance on Barker was wholly misplaced. We
must construe the statutory speedy trial scheme the same way
we would any other set of statutory rights. Our holdings in this
case and its primogenitors are directly contrary to the plain
language of the speedy trial statutes and the traditional notions
of waiver that the Legislature would have considered when
drafting the statutory language.
We have long held that statutory rights are within the
classification of those rights that can be waived by silence
or acquiescence. State v. Meers, 257 Neb. 398, 598 N.W.2d
435 (1999); Sedlacek v. State, 147 Neb. 834, 25 N.W.2d 533
(1946). Even when statutory rights relate in some way to con-
stitutional rights, silence or inaction can traditionally waive
those rights.
Thus, by failing to make a challenge for cause, a defendant
can waive objections to the competency of a juror. See Fillion
v. State, 5 Neb. 351 (1877). By remaining silent and failing
to object, a defendant can waive the introduction of evidence
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unconstitutionally obtained and used against the defendant
at trial. See State v. Howard, 182 Neb. 411, 155 N.W.2d 339
(1967). By failing to object, a defendant can waive prosecuto-
rial misconduct and the impartiality of a judge due to ex parte
communications. See, State v. Watt, 285 Neb. 647, 832 N.W.2d
459 (2013), disapproved on other grounds, State v. Vann, 306
Neb. 91, 944 N.W.2d 503 (2020); State v. Lotter, 255 Neb.
456, 586 N.W.2d 591 (1998), modified on denial of rehear-
ing 255 Neb. 889, 587 N.W.2d 673 (1999). Through silence,
a defendant can waive the unconstitutionality of a charging
statute. A defendant’s failure to object can waive the right to
confrontation. See State v. Nadeem, 284 Neb. 513, 822 N.W.2d
372 (2012). A defendant’s failure to object waives alleged vio-
lations of procedural due process. Id.
In this context, we have generally said that the “‘[d]efense
may not remain silent in hopes that trial court will fall into
reversible error where possible error could have been passed
upon and cured, if need be, by a properly timed objection.’”
State v. Howard, 182 Neb. at 418, 155 N.W.2d at 344. In
State v. Leon-Simaj, 300 Neb. 317, 329, 913 N.W.2d 722, 731
(2018), we condemned the use of silence as a constitutional
sword of gamesmanship:
[W]e have rejected defendants’ use of constitutional
shields as swords of gamesmanship. Particularly, we have
found that defendants who remain silent in the face of
trial error impacting important constitutional rights, and
who gamble on a favorable outcome or raise the objection
only once the alleged error can no longer be remedied,
have waived the error.
We also explained in Leon-Simaj how silence can give the
“false impression of acquiescence [and thereby] lull the court
into taking actions that could not later be undone.” 300 Neb. at
329-30, 913 N.W.2d at 731 (internal quotation marks omitted).
This court’s position in State v. Alvarez, 189 Neb. 281, 202
N.W.22d 604 (1972), and its progeny promotes gamesmanship
by encouraging the defense to remain silent in the hopes that
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the court will not realize any small miscalculation that could
lead to statutory absolute discharge—an error that cannot later
be undone. Indeed, the scheme this court shaped in Alvarez
places defense counsel in a difficult position when a court sets
an untimely trial date and asks for counsel’s input. Defense
counsel must choose between properly exercising a party’s
expected duty of candor to the court and doing what might be
most beneficial for the defendant by giving a false impression
of acquiescence in the hopes that the miscalculation will con-
tinue to go unnoticed.
In no way do I suggest that counsel for the defense in the
case at bar intentionally misled the court or acted inappropri-
ately under the scheme that this court has created. My point,
however, is that with the scheme this court has created, even
if defense counsel knows that the date set by the trial court is
beyond the statutory 6-month limit, there is no duty to advise
the court of the error so a timely trial date can be set. Instead,
the opposite is true; our statutory speedy trial scheme discour-
ages candor and arguably even makes raising a speedy trial
objection before the statutory period has run a potential subject
of ineffective assistance claims.
Such a system is contrary to what we expect from attorneys
appearing before our courts. Without justification, it encour-
ages gamesmanship that procedurally derails our criminal jus-
tice system from reaching the merits of the defendant’s guilt
or innocence.
The more reasonable approach would be the application
of the waiver principles that govern other statutorily created
rights, as previously set forth. When the court sets a trial date,
the defense’s failure to timely assert that the date falls outside
of the statutory 6-month period should constitute a waiver of
the statutory right to absolute discharge based on that trial date.
This still empowers criminal defendants to make demands for
trials within the 6-month time limit but does not turn criminal
proceedings into a game of “gotcha” by defendants not assert-
ing the statutory right to speedy trial until after the expiration
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of the speedy trial time limit. The language of the speedy trial
statutes clearly created a right for criminal defendants to push
proceedings forward to trial if they wish to do so. This court
has twisted that right into a procedural trap for trial courts.
Until recently, because either the record was silent on the
issue, see State v. Alvarez, 189 Neb. 281, 202 N.W.2d 604
(1972), or the issue simply had not been raised, a defendant’s
participation in setting a trial date had not been evaluated under
our statutory speedy trial scheme. Such issue has been squarely
raised here, and the majority opinion moves our flawed system
one step further in the wrong direction.
Here, the defendant and her counsel were present when the
court discussed the trial date with the parties and they agreed
to a trial date that fell outside of the allowable speedy trial time
limit. After the statutory time limit had passed but before the
agreed-upon trial date, the defendant filed a motion for abso-
lute discharge, which was granted. Even under a constitutional
analysis as used in Barker v. Wingo, 407 U.S. 514, 92 S. Ct.
2182, 33 L. Ed. 2d 101 (1972), the defendant had a responsibil-
ity to assert the right to a speedy trial prior to his or her request
for discharge.
The majority opinion now allows participation by the defense
in the setting of an untimely trial date and then a successful
motion to discharge under § 29-1208 based upon the very date
the defense agreed upon. Under the majority’s understanding
of the current statutory speedy trial scheme, the safest path for
trial courts is to establish progression orders with set trial dates
that will require knowing continuances if they are to be moved
beyond the established 6-month limit. Extra caution should be
taken in situations where initial appearances are waived by the
entry of written not guilty pleas.
Instead of expanding on our previous misstep, we should
correct the error this court committed in Alvarez as described
herein. For the foregoing reason, I respectfully dissent. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487200/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/18/2022 09:05 AM CST
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MILLARD GUTTER CO. V. FARM BUREAU PROP. & CAS. INS. CO.
Cite as 312 Neb. 629
Millard Gutter Company, a corporation
doing business as Millard Roofing and
Gutter, appellant, v. Farm Bureau
Property & Casualty Insurance
Company, appellee.
___ N.W.2d ___
Filed October 14, 2022. No. S-19-1089.
1. Motions to Dismiss: Pleadings: Appeal and Error. A district court’s
grant of a motion to dismiss on the pleadings is reviewed de novo by
an appellate court, accepting the factual allegations in the complaint as
true and drawing all reasonable inferences of law and fact in favor of the
nonmoving party.
2. Actions: Parties: Standing: Judgments: Jurisdiction: Appeal and
Error. Whether a party who commences an action has standing and is
therefore the real party in interest presents a jurisdictional issue. When a
jurisdictional question does not involve a factual dispute, determination
of the issue is a matter of law which requires an appellate court to reach
a conclusion independent from the trial court.
3. Pleadings: Appeal and Error. An order of the district court requiring a
complaint to be made more definite will be sustained on appeal unless it
clearly appears that the court abused its discretion.
4. Judges: Words and Phrases. A judicial abuse of discretion exists when
the reasons or rulings of a trial judge are clearly untenable, unfairly
depriving a litigant of a substantial right and denying just results in mat-
ters submitted for disposition.
5. Standing: Jurisdiction: Parties. Standing is a jurisdictional component
of a party’s case, and courts must address it as a threshold matter.
6. Motions to Dismiss: Jurisdiction: Pleadings. When a motion to dis-
miss raises both subject matter jurisdiction and failure to state a claim
as grounds for dismissal, the court should consider the jurisdictional
grounds first and should consider whether the complaint states a claim
for relief only if it has determined that it has subject matter jurisdiction.
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7. Standing: Pleadings: Evidence: Words and Phrases. When standing
is challenged at the pleadings stage, before an evidentiary hearing and
before any evidence outside of the pleadings is admitted, it is deemed a
facial challenge.
8. Standing: Pleadings: Proof. When considering a facial challenge to
standing, the trial court will typically review only the pleadings to
determine whether the plaintiff has alleged sufficient facts to estab-
lish standing.
9. Insurance: Parties: Standing. Only a policyholder has standing to
bring a first‑party bad faith claim against an insurer.
10. Torts: Assignments. The proceeds from personal injury tort actions may
be validly assigned, but the right to prosecute the tort action cannot.
11. ____: ____. The right to prosecute a tort action for first‑party bad faith
cannot be validly assigned.
12. Pleadings: Rules of the Supreme Court. The purpose of a motion for a
more definite statement under Neb. Ct. R. Pldg. § 6‑1112(e) is to enable
movants to obtain the information reasonably needed to frame a respon-
sive pleading.
13. Pleadings: Rules of the Supreme Court: Pretrial Procedure. Motions
for a more definite statement under Neb. Ct. R. Pldg. § 6‑1112(e) should
not be used as a substitute for discovery; but if additional detail is
needed to make a vague complaint intelligible, or to enable the movant
to determine the availability of an affirmative defense, the fact that such
detail can be obtained through discovery should not preclude providing
it in response to a motion for a more definite statement, so long as the
detail is reasonably needed to frame a responsive pleading.
14. Pleadings: Rules of the Supreme Court. One moving for a more
definite statement under Neb. Ct. R. Pldg. § 6‑1112(e) must identify the
alleged deficiencies in the pleading, specify the details being requested,
and assert the inability to prepare a responsive pleading without the
requested details. These requirements are designed to enable the trial
court to test the propriety of the motion so that an order can be entered
consistent with the limited purpose of such motions.
15. ____: ____. Motions for more definite statements under Neb. Ct. R.
Pldg. § 6‑1112(e) are addressed to the sound discretion of the trial court.
16. Pleadings: Dismissal and Nonsuit: Time. The failure to file an
amended pleading within the time specified by the court’s order is a
basis for dismissing the action without prejudice under Neb. Rev. Stat.
§ 25‑601(5) (Reissue 2016). Not only may a court sua sponte dismiss an
action without prejudice under § 25‑601(5), but a defendant may file a
motion to dismiss under that subsection.
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MILLARD GUTTER CO. V. FARM BUREAU PROP. & CAS. INS. CO.
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17. Courts: Dismissal and Nonsuit. In addition to the statutory authority
under Neb. Rev. Stat. § 25‑601 (Reissue 2016), trial courts have the
inherent authority to dismiss an action for violation of a court order.
18. Pleadings: Rules of the Supreme Court: Dismissal and Nonsuit:
Time. When an order to make more definite is not obeyed within
the time fixed by the court, Neb. Ct. R. Pldg. § 6‑1112(e) authorizes
a trial court to strike the pleading or make such order as it deems
just. Dismissal is an available sanction under such a provision and is
reviewed for an abuse of discretion.
Petition for further review from the Court of Appeals,
Pirtle, Chief Judge, and Moore and Riedmann, Judges, on
appeal thereto from the District Court for Douglas County,
Kimberly Miller Pankonin, Judge. Judgment of Court of
Appeals affirmed in part, and in part reversed and remanded
with directions.
Theodore R. Boecker, Jr., of Boecker Law, P.C., L.L.O., for
appellant.
Michael T. Gibbons and Raymond E. Walden, of Woodke &
Gibbons, P.C., L.L.O., for appellee.
Heavican, C.J., Miller‑Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
In connection with a 2013 storm, Millard Gutter Company
(Millard Gutter) obtained assignments of the right to insur-
ance proceeds due under policies issued by Farm Bureau
Property & Casualty Insurance Company (Farm Bureau).
Millard Gutter then filed suit against Farm Bureau in its own
name, as assignee, seeking to recover damages for breach of
the insurance contracts and for first‑party bad faith in fail-
ing to settle the insurance claims. In response to preanswer
motions, the district court dismissed the claims of first‑party
bad faith for lack of standing and ordered Millard Gutter to
file an amended complaint providing additional detail on the
remaining claims. When no amended complaint was filed, the
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court sua sponte entered an order dismissing the entire action
without prejudice.
Millard Gutter appealed, and the Nebraska Court of Appeals
reversed. 1 We granted Farm Bureau’s petition for further
review. Consistent with our opinion released today in Millard
Gutter Co. v. Shelter Mut. Ins. Co. (Shelter), 2 we now in part
reverse the Court of Appeals’ decision and remand the matter
to the Court of Appeals with directions to affirm the district
court’s dismissal of the first‑party bad faith claims for lack
of standing. We otherwise affirm the decision of the Court
of Appeals.
I. BACKGROUND
1. Original Complaint and
Preanswer Motions
On April 9, 2018, Millard Gutter filed a complaint against
Farm Bureau in the district court for Douglas County. The
complaint alleged that Millard Gutter was bringing the action
as “the assignee of various insured property owners, who pur-
chased insurance from [Farm Bureau].” Without identifying the
policyholders or the policies, the complaint alleged that “due
to a storm occurring in 2013,” various property owners sus-
tained property loss that was covered under the Farm Bureau
policies. It alleged that the property owners “assigned their
right to any proceeds under policies of insurance” to Millard
Gutter. The assignments were not attached to the complaint,
and neither the date of the storm nor the dates of the assign-
ments were alleged.
According to the complaint, Farm Bureau was given cop-
ies of the assignments, and claims were made for insurance
proceeds owed under the policies. The complaint alleged that
Farm Bureau “breached the policies by failing to pay Millard
1
Millard Gutter Co. v. Farm Bureau Prop. & Cas. Ins. Co., 29 Neb. App.
678, 958 N.W.2d 440 (2021).
2
Millard Gutter Co. v. Shelter Mut. Ins. Co., ante p. 606, ___ N.W.2d ___
(2022).
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[Gutter] all benefits due and owing under the policies.” It also
alleged that Farm Bureau “wrongfully retained money due
to Millard [Gutter] and engaged in an unreasonable delay of
payment” and that “[a]s a direct and proximate result of the
bad faith conduct of Farm Bureau,” Millard Gutter sustained
harm. The complaint sought general and special damages in
an unspecified amount, as well as attorney fees and prejudg-
ment interest.
Farm Bureau responded to the complaint by filing several
preanswer motions, none of which were included in the appel-
late record. However, as relevant to the issues on appeal, other
portions of the record indicate that Farm Bureau filed (1) a
motion to dismiss the bad faith claims for lack of standing and
(2) a motion for a more definite statement regarding the breach
of contract claims.
2. Amended Complaint
On the same day the hearing was held on Farm Bureau’s
preanswer motions, Millard Gutter filed an amended complaint.
Our record indicates that all of Farm Bureau’s preanswer
motions were deemed to relate to the amended complaint. The
amended complaint was nearly identical to the original com-
plaint, except it identified, by name and street address, 20 Farm
Bureau policyholders in Omaha, Nebraska. It alleged these
policyholders suffered property damage in a hailstorm occur-
ring on April 9, 2013, after which they “assigned their right to
any proceeds under policies of insurance” to Millard Gutter “in
consideration for [Millard Gutter’s] agreeing to perform nec-
essary repair work, which was accomplished . . . thereafter.”
None of the assignments were attached.
3. Hearing and Order on
Preanswer Motions
Our appellate record does not include the bill of exceptions
from the hearing held on Farm Bureau’s preanswer motions. As
such, the arguments advanced by the parties can be discerned
only to the extent they are referenced in the court’s written
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order ruling on the motions. That order does not reference any
evidence adduced at the hearing, so we necessarily assume the
court confined its analysis to the face of the amended com-
plaint. We limit our review accordingly.
(a) Standing to Assert First‑Party
Bad Faith Claims
Farm Bureau moved to dismiss the first‑party bad faith
claims for lack of standing. According to the written order,
Farm Bureau argued that Millard Gutter lacked standing to
assert first‑party bad faith claims because (1) only policyhold-
ers have standing to assert first‑party bad faith claims under
Nebraska law and (2) the assignments did not create standing
to assert claims of first‑party bad faith because, even if such
claims could be validly assigned, the complaint contained
no factual allegations suggesting the assignments from Farm
Bureau’s policyholders included a present interest in such
claims. Farm Bureau also argued the complaint contained
insufficient factual allegations to state claims for first‑party
bad faith.
The district court’s order addressed only the standing argu-
ments. First, it recited the rule from Braesch v. Union Ins. Co. 3
that only policyholders have standing to assert a first‑party bad
faith claim. Because Millard Gutter had not alleged it was a
Farm Bureau policyholder, the district court concluded Millard
Gutter lacked “standing to assert a traditional first‑party bad
faith claim” under Nebraska law.
Next, the court considered whether Millard Gutter had suffi-
ciently alleged standing, as an assignee, to assert first‑party bad
faith claims against Farm Bureau. It observed that this court
“has not explicitly ruled on the assignability of bad faith claims
nor on the requirements for such an assignment,” and it also
observed the general rule that only a “‘present interest’” can
3
Braesch v. Union Ins. Co., 237 Neb. 44, 464 N.W.2d 769 (1991),
disapproved on other grounds, Wortman v. Unger, 254 Neb. 544, 578
N.W.2d 413 (1998).
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be validly assigned. 4 It then examined the face of the amended
complaint and noted allegations that the right to “proceeds
under policies of insurance” had been assigned, but it found
no allegations suggesting that any policyholder had a present
interest in a tort action for first‑party bad faith, or had assigned
such an interest to Millard Gutter. The court therefore con-
cluded that Millard Gutter had not sufficiently alleged it had
standing to assert any first‑party bad faith claims as assignee,
and it dismissed such claims without prejudice.
(b) Motion for More Definite Statement
According to the district court’s order, Farm Bureau’s motion
to make more definite was directed only to the breach of con-
tract claims. The court granted that motion, stating:
Farm Bureau also seeks an order requiring Millard
Gutter to make a more definite and certain statement as
to the date of the alleged breaches of contract so that
Farm Bureau can assess any potential statute of limita-
tions defenses. This motion is sustained. Millard Gutter
is ordered to file [a second] amended complaint within
30 days from the date this order is filed including a more
definite statement as to when the alleged breach of con-
tract is claimed to have occurred as to each insured.
It is undisputed that Millard Gutter did not file a second
amended complaint within 30 days or at any other point during
the pendency of the case.
4. Sua Sponte Order of Dismissal
In October 2019, almost 6 months after ordering Millard
Gutter to file a second amended complaint, the court entered
4
See, Krohn v. Gardner, 248 Neb. 210, 533 N.W.2d 95 (1995) (holding
assignment must transfer present interest in debt, fund, or subject matter);
Craig v. Farmers Mut. Ins. Co., 239 Neb. 271, 273, 476 N.W.2d 529, 532
(1991) (holding transaction is assignment only when assignor intends “‘to
transfer a present interest in the debt or fund or subject matter’”). See,
also, Neb. Rev. Stat. § 25‑304 (Reissue 2016) (“[a]ssignees of choses
in action assigned for the purpose of collection may sue on any claim
assigned in writing”).
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MILLARD GUTTER CO. V. FARM BUREAU PROP. & CAS. INS. CO.
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an order, sua sponte, dismissing the entire action without preju-
dice. In doing so, the order recited the procedural history of the
case, and it noted that Millard Gutter had been ordered to file
a second amended complaint and had failed to do so within the
time fixed by the court. 5 Millard Gutter did not move to vacate
the dismissal and reinstate the case, and instead, it timely
appealed from the order of dismissal.
5. Court of Appeals
Before the Court of Appeals, Millard Gutter assigned,
restated, that the district court erred by (1) dismissing the
first‑party bad faith claims for lack of standing, (2) granting
the motion to make more definite and ordering Millard Gutter
to file a second amended complaint alleging the dates of the
alleged breaches of contract, and (3) sua sponte dismissing the
amended complaint without notice or a hearing.
In its analysis, the Court of Appeals agreed with the district
court that because Millard Gutter was not a policyholder and
had no contractual relationship with Farm Bureau, it lacked
standing under Braesch to assert a “traditional first‑party bad
faith claim against Farm Bureau.” 6 It also agreed with the
district court that, to the extent Millard Gutter was claiming
it had standing to assert the bad faith claims by virtue of the
assignments, no Nebraska appellate court had yet “ruled on
the assignability of bad faith claims or on the requirements for
such an assignment.” 7 But the Court of Appeals determined it
was not necessary to conclusively decide the assignability issue
in this case, reasoning that under Nebraska’s liberal notice
pleading standards, Millard Gutter had stated a plausible claim
for first‑party bad faith. It ultimately determined the allegations
5
See, generally, Neb. Rev. Stat. § 25‑601 (Reissue 2016) (“action may
be dismissed without prejudice to a future action . . . by the court for
disobedience by the plaintiff of an order concerning the proceedings in the
action”).
6
Millard Gutter Co., supra note 1, 29 Neb. App. at 683, 958 N.W.2d at 445.
7
Id.
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MILLARD GUTTER CO. V. FARM BUREAU PROP. & CAS. INS. CO.
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of the amended complaint were sufficient to withstand a motion
to dismiss, reasoning:
Upon our de novo review, accepting the allegations in
the amended complaint as true and drawing all reasonable
inferences in favor of Millard Gutter, we determine that
for the purposes of a motion to dismiss, Millard Gutter
has sufficiently pled a bad faith claim under Nebraska
law. The amended complaint specifically alleges that
Farm Bureau failed to make payments for the insureds’
losses, failed to recognize the validity of the assignments,
and failed to act in good faith. These pleadings are suf-
ficient to give Farm Bureau fair notice of the claims
asserted against it. . . .
The district court correctly ascertained that at this point
in the case, it is unclear whether the alleged assignments
to Millard Gutter specifically include any tort claims or
interest in the homeowners’ insurance policies. However,
this information can be determined during the discov-
ery process. If at some point in the future, Farm Bureau
learns that some or all of the insureds at issue did not
validly assign to Millard Gutter the right to pursue bad
faith tort claims related to their insurance policies, then an
appropriate motion may be filed at that time.
Therefore, we conclude that the district court erred in
granting Farm Bureau’s motion to dismiss the bad faith
claims. 8
The Court of Appeals also found merit in Millard Gutter’s
second assignment of error, which argued the district court
abused its discretion by requiring Millard Gutter to amend the
complaint to specify the dates on which the alleged breaches of
contract occurred. The Court of Appeals disagreed with the dis-
trict court’s conclusion that the additional detail was necessary
to allow Farm Bureau to identify potential statute of limitations
defenses when framing its responsive pleading. It noted the
8
Id. at 684, 958 N.W.2d at 445‑46.
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MILLARD GUTTER CO. V. FARM BUREAU PROP. & CAS. INS. CO.
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limitations period for breach of contract claims is 5 years, 9 and
Millard Gutter’s operative complaint alleged the storm dam-
age occurred on April 9, 2013. Millard Gutter’s lawsuit was
filed on April 9, 2018‑‑exactly 5 years after the alleged storm
damage occurred. Reasoning that none of the alleged breaches
could possibly have occurred before the storm, the Court of
Appeals concluded that no breach would “fall outside the stat-
ute of limitations period.” 10 It thus determined the district court
had abused its discretion in granting the motion to make more
definite and requiring Millard Gutter to file an amended com-
plaint identifying the dates on which Farm Bureau breached the
insurance agreements.
Because of its disposition on Millard Gutter’s first two
assignments of error, the Court of Appeals deemed it unnec-
essary to consider the final assignment of error. It therefore
reversed the district court’s order and remanded the matter for
further proceedings consistent with its opinion.
We granted Farm Bureau’s petition for further review and
ordered supplemental briefing at the discretion of the parties.
Only Farm Bureau filed a supplemental brief.
II. ASSIGNMENTS OF ERROR
On further review, Farm Bureau assigns, restated, that the
Court of Appeals erred in (1) reversing the district court’s dis-
missal of Millard Gutter’s bad faith claims for lack of stand-
ing and (2) finding it was an abuse of discretion to grant the
motion for a more definite statement regarding the dates of the
alleged breaches of the insurance contracts.
III. STANDARD OF REVIEW
[1] A district court’s grant of a motion to dismiss on the
pleadings is reviewed de novo by an appellate court, accepting
the factual allegations in the complaint as true and drawing all
9
See Neb. Rev. Stat. § 25‑205 (Reissue 2016).
10
Millard Gutter Co., supra note 1, 29 Neb. App. at 686, 958 N.W.2d at 446.
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reasonable inferences of law and fact in favor of the nonmov-
ing party. 11
[2] Whether a party who commences an action has standing
and is therefore the real party in interest presents a jurisdic-
tional issue. 12 When a jurisdictional question does not involve
a factual dispute, determination of the issue is a matter of law
which requires an appellate court to reach a conclusion inde-
pendent from the trial court. 13
[3,4] An order of the district court requiring a complaint to
be made more definite will be sustained on appeal unless it
clearly appears that the court abused its discretion. 14 A judicial
abuse of discretion exists when the reasons or rulings of a trial
judge are clearly untenable, unfairly depriving a litigant of a
substantial right and denying just results in matters submitted
for disposition. 15
IV. ANALYSIS
1. Standing to Assert Claim
of First‑Party Bad Faith
When reviewing the district court’s dismissal of the
first‑party bad faith claims, the Court of Appeals focused on
whether Millard Gutter’s amended complaint alleged a plau-
sible claim of first‑party bad faith under Nebraska’s liberal
notice pleading rules. But we begin our analysis by focusing on
whether Millard Gutter is the real party in interest with stand-
ing to assert such a claim.
11
SID No. 67 v. State, 309 Neb. 600, 961 N.W.2d 796 (2021).
12
See Valley Boys v. American Family Ins. Co., 306 Neb. 928, 947 N.W.2d
856 (2020).
13
Id.
14
See Christianson v. Educational Serv. Unit No. 16, 243 Neb. 553, 501
N.W.2d 281 (1993).
15
George Clift Enters. v. Oshkosh Feedyard Corp., 306 Neb. 775, 947
N.W.2d 510 (2020).
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[5,6] Standing is a jurisdictional component of a party’s
case, and courts must address it as a threshold matter. 16 When a
motion to dismiss raises both lack of subject matter jurisdiction
and failure to state a claim as grounds for dismissal, the court
should consider the jurisdictional grounds first and should con-
sider whether the complaint states a claim for relief only if it
has determined that it has subject matter jurisdiction. 17 In other
words, before considering whether Millard Gutter sufficiently
pled claims of first‑party bad faith, we must first determine
whether Millard Gutter is the proper party to assert such claims
under the substantive law. 18
[7,8] As noted, Farm Bureau’s challenge to Millard Gutter’s
standing was raised and resolved at the pleading stage. When
standing is challenged at the pleadings stage, before an evi-
dentiary hearing and before any evidence outside of the plead-
ings is admitted, it is deemed a “‘facial challenge.’” 19 When
considering a facial challenge to standing, the trial court will
typically review only the pleadings to determine whether the
plaintiff has alleged sufficient facts to establish standing. 20
When the Court of Appeals issued its opinion in this case,
it did not have the benefit of our recent decision in Shelter. 21
In that case, as in this one, Millard Gutter obtained assignments
of the right to insurance proceeds from various policyholders,
and then it filed suit against the insurer in its own name, as
16
See, Continental Resources v. Fair, 311 Neb. 184, 971 N.W.2d 313 (2022);
In re Guardianship of Nicholas H., 309 Neb. 1, 958 N.W.2d 661 (2021);
Egan v. County of Lancaster, 308 Neb. 48, 952 N.W.2d 664 (2020).
17
See, SID No. 67, supra note 11; Anderson v. Wells Fargo Fin. Accept., 269
Neb. 595, 694 N.W.2d 625 (2005).
18
See Egan, supra note 16. See, also, Neb. Ct. R. Pldg. § 6‑1109(a) (rev.
2008) (“[i]t is not necessary to aver the capacity . . . or the authority of a
party to sue . . . except to the extent required to show the jurisdiction of
the court”).
19
SID No. 67, supra note 11, 309 Neb. at 606, 961 N.W.2d at 802.
20
Id.
21
Shelter, supra note 2.
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assignee, seeking to recover damages for breaches of the insur-
ance contracts and for first‑party bad faith in failing to settle
the insurance claims. The district court in Shelter dismissed
the bad faith claims for lack of standing, and we affirmed that
dismissal on appeal.
[9] In Shelter, we noted that under Nebraska case law, only
a policyholder has standing to bring a first‑party bad faith
claim. 22 Millard Gutter did not claim to be a policyholder;
instead, it asserted that it had standing to bring the first‑party
bad faith claims by virtue of the postloss assignments from the
policyholders. We thus framed the issue in Shelter as whether a
policyholder could validly assign, to a policyholder, a cause of
action for the tort of first‑party bad faith. To answer that ques-
tion, we turned to our case law governing the assignability of
tort claims generally.
[10,11] Shelter explained that under the rule announced in
Mutual of Omaha Bank v. Kassebaum, 23 the proceeds from per-
sonal injury tort actions may be validly assigned, but the right
to control such an action cannot. Applying this rule in Shelter,
we held that even assuming without deciding that the proceeds
from a cause of action for first‑party bad faith could be validly
assigned, the right to prosecute such an action could not. 24 As
such, the policyholders in Shelter remained the real parties
in interest under the substantive law and were the only ones
with standing to assert claims of first‑party bad faith against
the insurer.
Here, just as in Shelter, regardless of their validity for other
purposes, the assignments from Farm Bureau’s policyholders
could not, as a matter of law, give Millard Gutter standing
to prosecute any tort actions for first‑party bad faith against
Farm Bureau. We thus agree with the district court that Millard
22
See Braesch, supra note 3.
23
Mutual of Omaha Bank v. Kassebaum, 283 Neb. 952, 814 N.W.2d 731
(2012).
24
Shelter, supra note 2.
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Gutter’s amended complaint did not contain sufficient factual
allegations to establish that it was the real party in interest with
standing to assert the first‑party bad faith claims. We reverse
the Court of Appeals’ decision on this issue and remand the
matter with directions to affirm the district court’s dismissal of
the first‑party bad faith claims for lack of standing.
2. More Definite Statement on
Breach of Contract Claims
On further review, Farm Bureau also argues the Court of
Appeals erred when it found the district court abused its dis-
cretion by sustaining the motion for a more definite statement.
Motions for a more definite statement are governed by Neb. Ct.
R. Pldg. § 6‑1112(e), which states:
If a pleading to which a responsive pleading is permitted
is so vague or ambiguous that a party cannot reasonably
be required to frame a responsive pleading, the party
may move for a more definite statement before interpos-
ing a responsive pleading. The motion shall point out
the defects complained of and the details desired. If the
motion is granted and the order of the court is not obeyed
within 10 days or within such time as the court may fix,
the court may strike the pleading or make such order as
it deems just.
[12,13] The purpose of a motion for a more definite state-
ment is to enable movants to obtain the information reason-
ably needed to frame a responsive pleading. 25 Motions for a
more definite statement should not be used as a substitute for
discovery; but if additional detail is needed to make a vague
complaint intelligible, or to enable the movant to determine the
availability of an affirmative defense, the fact that such detail
can be obtained through discovery should not preclude provid-
ing it in response to a motion for a more definite statement,
25
See, 5C Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 1376 (3d ed. 2004 & Supp. 2022); John P. Lenich, Nebraska
Civil Procedure § 11:10 (2022).
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so long as the detail is reasonably needed to frame a respon-
sive pleading. 26
[14,15] One moving for a more definite statement must
identify the alleged deficiencies in the pleading, specify the
details being requested, and assert the inability to prepare
a responsive pleading without the requested details. 27 These
requirements are designed to enable the trial court to test the
propriety of the motion so that an order can be entered consist
ent with the limited purpose of such motions. 28 Motions for
more definite statements are addressed to the sound discretion
of the trial court. 29
As noted, Farm Bureau’s motion for a more definite state-
ment was not included in our appellate transcript and no party
requested preparation of a bill of exceptions. All we have avail-
able to review is the district court’s written order, which recited
that Farm Bureau’s motion sought “a more definite and certain
statement as to the date of the alleged breaches of contract so
that Farm Bureau can assess any potential statute of limitations
defenses.” To the extent Farm Bureau may have identified
other deficiencies in its motion, or offered other reasons during
the hearing for why it needed to know the dates of the alleged
breaches to frame a responsive pleading, such matters are out-
side the limited record presented for our review.
On this record, the Court of Appeals concluded the district
court abused its discretion by ordering Farm Bureau to amend
the complaint within 30 days to provide “a more definite state-
ment as to when the alleged breach of contract is claimed to
have occurred as to each insured.” It reasoned that even with-
out the additional detail requested, Farm Bureau could assess
any potential statute of limitations defenses because the earli-
est date that any of the breach of contract claims could have
26
See, id.
27
See 5C Wright & Miller, supra note 25, § 1378.
28
Id.
29
Vodehnal v. Grand Island Daily Independent, 191 Neb. 836, 218 N.W.2d
220 (1974).
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accrued was the date of the storm that caused the property
damage (alleged to be April 9, 2013, as to each policyholder),
and suit was filed within 5 years of that date. As such, the
Court of Appeals concluded that even though Millard Gutter’s
breach of contract claims may span a period of several years,
none of those claims could have accrued more than 5 years
before suit was commenced.
We agree with the Court of Appeals that the allegations of
the amended complaint were sufficient to allow Farm Bureau
to assess whether it had a statute of limitations defense to the
breach of contract claims. Our record on appeal does not con-
tain any other rationale advanced for requiring Millard Gutter
to file a second amended complaint specifying the dates of the
alleged breaches. We thus agree it was an abuse of discretion to
sustain the motion for a more definite statement on the grounds
the additional detail was necessary for Farm Bureau to frame a
responsive pleading. Farm Bureau’s arguments to the contrary
are without merit.
3. Millard Gutter’s Remaining
Assignment of Error
Before the Court of Appeals, Millard Gutter assigned error
to the district court’s sua sponte dismissal of the entire action.
The Court of Appeals declined to consider this assignment,
reasoning that its disposition of the other assignments of error
made it unnecessary.
On further review, we have discretion to consider, as we
deem appropriate, some or all of the assignments of error the
Court of Appeals did not reach. 30 We think it is appropriate to
briefly address the dismissal order and to reverse it in part to
facilitate further proceedings on remand.
As we read the sua sponte dismissal order, it was premised
exclusively on Millard Gutter’s failure to obey the order to
make more definite within the time fixed by the court, and it
dismissed the entire action on that basis. To the extent Millard
30
See Signal 88 v. Lyconic, 310 Neb. 824, 969 N.W.2d 651 (2022).
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Gutter argues on appeal that trial courts lack the authority
to sua sponte dismiss a case under such circumstances, it
is incorrect.
[16‑18] The failure to file an amended pleading within the
time specified by the court’s order is a basis for dismissing the
action without prejudice under § 25‑601(5). 31 We have stated
that not only may a court sua sponte dismiss an action without
prejudice under § 25‑601(5), but a defendant may file a motion
to dismiss under that subsection, too. 32 And in addition to the
statutory authority under § 25‑601, we have long recognized
that courts have inherent authority to dismiss an action for vio-
lation of a court order. 33 Moreover, § 6‑1112(e) of the pleading
rules authorizes a trial court to “strike the pleading or make
such order as it deems just” if an order to make more definite
is not obeyed within the time fixed by the court. Dismissal is
generally considered an available sanction under such a provi-
sion and is reviewed for an abuse of discretion. 34
The available sanctions for failing to comply with an order
to make more definite are well established and well known
to the practicing bar. A party who ignores such an order and
takes no further action in the case, allowing it to languish on
the court’s docket, risks the possibility that such conduct may
result in sua sponte dismissal of the case as a sanction for the
31
See Bert Cattle Co. v. Warren, 238 Neb. 638, 471 N.W.2d 764 (1991).
32
Id.
33
Id. at 641‑42, 471 N.W.2d at 767 (internal quotation marks omitted)
(“[i]t has almost universally been held or recognized that courts have the
inherent power to dismiss an action for disobedience of a court order. . . .
Without this right, a court could not control its dockets; business before
it would become congested; its functions would be impaired; and speedy
justice to litigants would largely be denied”).
34
See, Shelter, supra note 2. See, also, Nystrom v. Melcher, 262 Mont. 151,
864 P.2d 754 (1993); Clay v. City of Margate, 546 So. 2d 434 (Fla. App.
1989); Medved v. Baird, 58 Wis. 2d 563, 207 N.W.2d 70 (1973). Accord,
5C Wright & Miller, supra note 25, § 1379 (noting when complaint is
stricken as sanction for failure to obey order to make more definite, it has
effect of dismissing action).
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failure to obey a court order or for the failure to prosecute
the action. 35
But on this record, we have determined it was an abuse
of discretion to sustain the motion for a more definite state-
ment in the first instance. So, although we do not condone or
excuse Millard Gutter’s conduct in ignoring the court’s order
for nearly 6 months rather than timely advising the court and
opposing counsel that it was electing to stand on its amended
complaint, we are persuaded it is appropriate under the cir-
cumstances to reverse the order of dismissal to the extent it
was imposed as a sanction for failing to obey the order to
make more definite. This reversal impacts only the breach
of contract claims alleged in the amended complaint and
facilitates remand of those claims for further proceedings. For
the reasons stated earlier, the district court’s dismissal of the
first‑party bad faith claims for lack of standing was correct and
should be affirmed.
V. CONCLUSION
Because Millard Gutter lacks standing to assert first‑party
bad faith claims against Farm Bureau, we reverse the Court of
Appeals’ decision in that regard and remand the matter to the
Court of Appeals with directions to affirm the district court’s
dismissal of such claims based on lack of standing. We further
direct the Court of Appeals to reverse the district court’s dis-
missal as to the breach of contract claims only. We otherwise
affirm the Court of Appeals’ decision.
Affirmed in part, and in part reversed
and remanded with directions.
35
See, e.g., Link v. Wabash Railroad Co., 370 U.S. 626, 633, 82 S. Ct.
1386, 8 L. Ed. 2d 734 (1962) (noting state and federal courts have long
recognized trial courts’ inherent authority to sua sponte dismiss complaints
for failure to prosecute, and under appropriate circumstances court “may
dismiss a complaint for failure to prosecute even without affording notice
of its intention to do so or providing an adversary hearing before acting.
Whether such an order can stand on appeal depends not on power but on
whether it was within the permissible range of the court’s discretion”). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487187/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/18/2022 09:05 AM CST
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312 Nebraska Reports
CENTRAL STATES DEV. V. FRIEDGUT
Cite as 312 Neb. 909
Central States Development, LLC, and
Saint James Apartment Partners, LLC,
appellants, v. Elizabeth Friedgut
and DLA Piper, LLP, appellees.
___ N.W.2d ___
Filed November 18, 2022. No. S-21-818.
1. Motions to Dismiss: Jurisdiction: Pleadings: Evidence. When a trial
court relies solely on pleadings and supporting affidavits in ruling on a
motion to dismiss for want of personal jurisdiction, the plaintiff need
only make a prima facie showing of jurisdiction to survive the motion.
However, if the court holds an evidentiary hearing on the issue or
decides the matter after trial, then the plaintiff bears the burden of dem-
onstrating personal jurisdiction by a preponderance of the evidence.
2. Jurisdiction: Appeal and Error. An appellate court examines the ques-
tion of whether the nonmoving party has established a prima facie case
of personal jurisdiction de novo.
3. Motions to Dismiss: Appeal and Error. In reviewing the grant of a
motion to dismiss, an appellate court must look at the facts in the light
most favorable to the nonmoving party and resolve all factual conflicts
in favor of that party.
4. Jurisdiction: Words and Phrases. Personal jurisdiction is the power of
a tribunal to subject and bind a particular entity to its decisions.
5. Due Process: Jurisdiction: States. Before a court can exercise personal
jurisdiction over a nonresident defendant, the court must determine,
first, whether the long-arm statute is satisfied and, second, whether
minimum contacts exist between the defendant and the forum state for
personal jurisdiction over the defendant without offending due process.
6. Jurisdiction: States: Legislature: Intent. It was the intention of the
Legislature to provide for the broadest allowable jurisdiction over non-
residents under Nebraska’s long-arm statute.
7. Due Process: Jurisdiction: States. When a state construes its long-
arm statute to confer jurisdiction to the fullest extent constitutionally
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permitted, the inquiry collapses into the single question of whether
jurisdiction comports with due process.
8. Jurisdiction: States. To constitute sufficient minimum contacts, a
defendant’s conduct and connection with the forum state must be such
that he or she should reasonably anticipate being haled into court there.
9. ____: ____. A court exercises two types of personal jurisdiction depend-
ing upon the facts and circumstances of the case: general personal juris-
diction or specific personal jurisdiction.
10. Jurisdiction. General personal jurisdiction arises where a defendant’s
affiliations with a state are so continuous and systematic as to render the
defendant essentially at home in the forum state.
11. Jurisdiction: Words and Phrases. Specific personal jurisdiction
requires that a claim arise out of or relate to the defendant’s contacts
with the forum.
12. ____: ____. For specific personal jurisdiction, there must be a substan-
tial connection between the defendant’s contacts with the forum state
and the operative facts of the litigation.
13. ____: ____. Specific personal jurisdiction is confined to adjudication of
issues deriving from, or connected with, the very controversy that estab-
lishes jurisdiction.
14. Jurisdiction: States: Contracts. The existence of a contract with a
party in a forum state does not, in and of itself, provide the necessary
contacts for personal jurisdiction.
Appeal from the District Court for Douglas County: Marlon
A. Polk, Judge. Affirmed.
Richard P. McGowan, of McGowan Law Firm, P.C., L.L.O.,
for appellants.
Joseph S. Daly and Mary M. Schott, of Evans & Dixon,
L.L.C., and Martin J. O’Hara, of Much Shelist, P.C., pro hac
vice, for appellees.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ.
Funke, J.
INTRODUCTION
Central States Development, LLC (Central States), and Saint
James Apartment Partners (SJ Apartment) appeal the dismissal
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of their complaint against Elizabeth Friedgut and the law firm
of DLA Piper, LLP.
Friedgut, as an employee of DLA Piper, represented Central
States and SJ Apartment in a dispute with the U.S. Department
of Housing and Urban Development (HUD). Central States
and SJ Apartment sued Friedgut and DLA Piper in connection
with that representation, alleging legal malpractice. The district
court found Friedgut and DLA Piper did not have the requisite
minimum contacts with Nebraska for the court to have personal
jurisdiction. Central States and SJ Apartment appeal. For the
reasons set forth herein, we affirm.
BACKGROUND
Central States is a limited liability company operating in
Nebraska and elsewhere. Its activities include developing and
managing low- and moderate-income housing. Central States
owns and operates apartment complexes that contract with
HUD. HUD provides funds to Central States through “Housing
Assistance Payment” (HAP) contracts that amount to all or a
significant portion of a tenant’s rent. Resultingly, a specific
complex’s primary source of revenue can consist of these pay-
ments by HUD rather than payments by tenants.
SJ Apartment is a Nebraska limited liability company. At
all relevant times, Central States was the managing member
of SJ Apartment and John Foley was the sole manager of
Central States. Foley created SJ Apartment to acquire and
develop an Omaha, Nebraska, apartment complex known as St.
James Manor.
The prior owner of St. James Manor operated the complex
in connection with a HAP contract. Central States and SJ
Apartment applied for and were awarded tax credits from the
Nebraska Investment Finance Authority to buy and develop
St. James Manor. As part of the project, the prior owner
assigned its interest in its HAP contracts for the property to
SJ Apartment.
Foley solicited Friedgut’s legal representation in order to
obtain HUD’s approval of the HAP assignment. Friedgut’s
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Cite as 312 Neb. 909
practice focused on federal law, and she had experience work-
ing as legal counsel at HUD and with HAP contracts. Central
States had a preexisting relationship with Friedgut insofar as
it had initially retained her after its Missouri-based mortgage
lender recommended it seek her services on an issue involving
another property. Foley initially contacted Friedgut for assist
ance with a HUD-related issue involving a property in Iowa.
He did so by calling her office in Chicago, Illinois.
Friedgut is a resident of Illinois and a former employee of
DLA Piper’s office in Chicago, Illinois. Central States and SJ
Apartment’s allegations concern Friedgut’s representation of
them while she was an employee of DLA Piper. Friedgut has
never been licensed to practice law in Nebraska, has never been
admitted pro hac vice in Nebraska, and has never appeared in
any Nebraska court. Friedgut stated in her affidavit that she
represented Central States and SJ Apartment without setting
foot in Nebraska in relation to them or St. James Manor.
The director of operations for the office of general counsel
at DLA Piper stated in his affidavit that DLA Piper was orga-
nized in Maryland and that its principal place of business is
in Maryland. It does not have a Nebraska office, nor does it
own or lease property in Nebraska, have a registered agent in
Nebraska, have any employees or partners living in Nebraska,
or have any attorneys with an active license to practice law in
Nebraska. DLA Piper has a website that is generally accessible
but that is not directed at Nebraska or Nebraska residents.
HUD is a federal agency, and HAP is a federal program.
Friedgut communicated with Foley regarding HUD issues
involving properties in Nebraska, Kansas, Iowa, and Colorado.
She communicated with HUD on Foley’s behalf in connec-
tion with St. James Manor and other properties outside of
Nebraska. Her affidavit provides that she communicated with
HUD exclusively through HUD’s regional office in Kansas
City, Kansas, and headquarters in Washington, D.C. Friedgut
has no recollection of communicating with HUD’s local
office in Omaha on behalf of Central States or SJ Apartment.
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The Kansas City office was her primary point of contact with
HUD. Friedgut was not involved in Central States and SJ
Apartment’s acquisition of St. James Manor or the award of
tax credits by the Nebraska Investment Finance Authority.
She maintains that her involvement relating to each of Central
States’ properties was specific to issues with HUD. Foley did,
at some point, have Nebraska counsel, and Friedgut’s affidavit
provides that Foley “increasingly relied on his Nebraska coun-
sel” in 2019.
Friedgut and DLA Piper regularly billed Central States and
SJ Apartment for Friedgut’s services by mailing invoices to
Foley in Omaha, and Foley made payments on those invoices.
Foley’s affidavit provides that Friedgut communicated with
him orally and in writing, participating in “dozens” of phone
calls with him while he was in Omaha. Friedgut also partici-
pated in phone calls with other Nebraska-based parties in her
representation of Central States and SJ Apartment, including
the property manager and employees of St. James Manor, the
prior owner of St. James Manor, and other counsel. She did not
interact with Nebraska state officials or tenants of St. James
Manor. Friedgut and DLA Piper never sent Foley an engage-
ment letter or written services agreement, suggested a need for
independent counsel, or otherwise expressly disavowed per-
sonal jurisdiction in Nebraska.
Friedgut was representing Central States and SJ Apartment
when HUD indicated that it would not approve the prior
owner’s assignment of its HAP contract. Central States and
SJ Apartment allege that HUD’s unwillingness to approve the
HAP assignment was “arbitrary and capricious,” “completely
irrational,” and “contrary to HUD policy goals.” Despite that,
Central States and SJ Apartment allege that Friedgut did not
seek reconsideration of the decision, a further meeting, or any
appeal; when Foley asked about appeal, Friedgut responded
she was unaware of any such process even though an appeal
process was available; and no timely appeal was brought.
Central States and SJ Apartment further allege that because
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Cite as 312 Neb. 909
the HAP assignment was not approved, SJ Apartment was
unable to receive any meaningful rental income through HUD
payments or otherwise and filed for bankruptcy protection;
SJ Apartment sued HUD through Nebraska counsel and con-
vinced HUD to retroactively approve the HAP assignment;
and by that time, retroactive approval was futile because SJ
Apartment had already lost St. James Manor to foreclosure in
bankruptcy proceedings.
In December 2020, Central States and SJ Apartment filed a
complaint in the district court for Douglas County, Nebraska,
against Friedgut and DLA Piper alleging legal malpractice.
Friedgut and DLA Piper subsequently moved to dismiss, argu-
ing a lack of personal jurisdiction over themselves in the State
of Nebraska.
The district court held a hearing to address the jurisdictional
issue, and evidence was received. At the hearing, Friedgut and
DLA Piper emphasized that Friedgut did not initiate or solicit
contact with Foley to commence the parties’ relationship.
Friedgut and DLA Piper argued that Friedgut’s representation
of Central States and SJ Apartment exclusively concerned fed-
eral law and HUD. Friedgut and DLA Piper maintained that
the location of St. James Manor was not determinative.
At the hearing, the district court compared the case to
Yeransian v. Willkie Farr 1 in explaining its conclusion that
Friedgut and DLA Piper “[had] not purposefully availed them-
selves to the jurisdiction of Nebraska and would not expect
to be haled into court [in the state].” The district court found
it important that Foley initially reached out to Friedgut in
Chicago to solicit her services.
The district court dismissed Central States and SJ
Apartment’s complaint on September 13, 2021. This appeal
followed. Before the Court of Appeals addressed the appeal,
we moved it to our docket. 2
1
Yeransian v. Willkie Farr, 305 Neb. 693, 942 N.W.2d 226 (2020).
2
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2020).
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ASSIGNMENT OF ERROR
Central States and SJ Apartment assign, restated, that the
district court erred in finding that the court lacked personal
jurisdiction over Friedgut and DLA Piper.
STANDARD OF REVIEW
[1] When a trial court relies solely on pleadings and sup-
porting affidavits in ruling on a motion to dismiss for want
of personal jurisdiction, the plaintiff need only make a prima
facie showing of jurisdiction to survive the motion. 3 However,
if the court holds an evidentiary hearing on the issue or decides
the matter after trial, then the plaintiff bears the burden of
demonstrating personal jurisdiction by a preponderance of
the evidence. 4
[2,3] An appellate court examines the question of whether
the nonmoving party has established a prima facie case of per-
sonal jurisdiction de novo. 5 In reviewing the grant of a motion
to dismiss, an appellate court must look at the facts in the light
most favorable to the nonmoving party and resolve all factual
conflicts in favor of that party. 6
ANALYSIS
[4,5] Because the district court’s hearing was on the issue
of personal jurisdiction and the evidence received was limited
to affidavits with accompanying exhibits, we review de novo
the legal question of whether a prima facie case of personal
jurisdiction has been established. 7 Personal jurisdiction is the
power of a tribunal to subject and bind a particular entity to
its decisions. 8 The Due Process Clause of the 14th Amendment
to the U.S. Constitution bars a court from exercising personal
3
RFD-TV v. WildOpenWest Finance, 288 Neb. 318, 849 N.W.2d 107 (2014).
4
Id.
5
Yeransian, supra note 1.
6
RFD-TV, supra note 3.
7
See id.
8
See Yeransian, supra note 1.
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jurisdiction over an out-of-state defendant, served with process
outside the state, unless that defendant has sufficient ties to the
forum state. 9 Thus, before a court can exercise personal juris-
diction over a nonresident defendant, the court must determine,
first, whether the state’s long-arm statute is satisfied and, sec-
ond, whether minimum contacts exist between the defendant
and the forum state for the court to exercise personal jurisdic-
tion over the defendant without offending due process. 10 When
contested, the burden of proving a forum court has personal
jurisdiction falls on the plaintiffs. 11
[6,7] Nebraska’s long-arm statute extends its courts’ juris-
diction over a person who falls into one of the categories
enumerated under the statute or who has “any other contact
with or maintains any other relation to this state to afford a
basis for the exercise of personal jurisdiction consistent with
the Constitution of the United States.” 12 It was the intention of
the Legislature to provide for the broadest allowable jurisdic-
tion over nonresidents under Nebraska’s long-arm statute. 13
When, like here, a state construes its long-arm statute to
confer jurisdiction to the fullest extent constitutionally permit-
ted, the inquiry collapses into the single question of whether
jurisdiction comports with due process. 14 Therefore, the issue
is whether Friedgut and DLA Piper had sufficient minimum
contacts with Nebraska so that the exercise of personal juris-
diction would not offend traditional notions of fair play and
substantial justice. 15
9
Hand Cut Steaks Acquisitions v. Lone Star Steakhouse, 298 Neb. 705, 905
N.W.2d 644 (2018).
10
Yeransian, supra note 1.
11
See Nimmer v. Giga Entertainment Media, 298 Neb. 630, 905 N.W.2d 523
(2018).
12
See Neb. Rev. Stat. § 25-536 (Reissue 2016).
13
Yeransian, supra note 1.
14
Id.
15
See id.
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Minimum Contacts
[8-11] To constitute sufficient minimum contacts, a defend
ant’s conduct and connection with the forum state must be
such that he or she should reasonably anticipate being haled
into court there. 16 In other words, a Nebraska court’s ability
to impose liability should be predictable to the parties before
the court based on their own actions. 17 A court exercises two
types of personal jurisdiction depending upon the facts and
circumstances of the case: general personal jurisdiction or spe-
cific personal jurisdiction. 18 General personal jurisdiction arises
where a defendant’s affiliations with a state are so continuous
and systematic as to render the defendant essentially at home
in the forum state. 19 Specific personal jurisdiction, by contrast,
requires that a claim arise out of or relate to the defendant’s con-
tacts with the forum. 20 Friedgut and DLA Piper do not appear to
have “continuous and systematic” connections with Nebraska;
nor are they “essentially at home” in the state. Rather, Central
States and SJ Apartment maintain that the district court had spe-
cific personal jurisdiction over Friedgut and DLA Piper.
Specific Personal Jurisdiction
[12,13] Where a defendant’s contacts with the forum state
are insufficient to exercise general personal jurisdiction, spe-
cific personal jurisdiction is available if the claim arises out
of or sufficiently relates to the defendant’s contacts with
the forum in a way that creates a substantial connection
between the defendant’s connections to the forum state and the
16
Id.
17
See, e.g., World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100
S. Ct. 559, 62 L. Ed. 2d 490 (1980) (“[t]he Due Process Clause . . . gives a
degree of predictability to the legal system that allows potential defendants
to structure their primary conduct with some minimum assurance as to
where that conduct will and will not render them liable to suit”).
18
Yeransian, supra note 1.
19
Id.
20
Id.
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operative facts of the litigation. 21 Naturally, then, specific per-
sonal jurisdiction is confined to adjudication of issues deriving
from, or connected with, the very controversy that establishes
jurisdiction. 22 Purposeful availment is essential to any finding
of personal jurisdiction. 23 Accordingly, here, we must consider
the quality and type of Friedgut’s and DLA Piper’s activities
and determine whether their actions create substantial connec-
tions with Nebraska, resulting in their purposeful availment of
Nebraska’s benefits, protections, and laws.
[14] Central States and SJ Apartment correctly argue that
physical presence in the forum state is not always necessary
to establish personal jurisdiction. In Williams v. Gould, Inc., 24
we explained: “Despite lack of physical presence in the state
where a contract is to be performed, a nonresident defendant,
who purposefully directs activities toward a forum state’s resi-
dents, through such contract, may be constitutionally subjected
to suit in the state where the contract is to be performed.”
Pointing to Williams, Central States and SJ Apartment con-
tend that Friedgut and DLA Piper purposefully availed them-
selves of the privileges of conducting activity in Nebraska by
entering into an attorney-client relationship with “Nebraska
entities” for which they billed their services. 25 However, the
existence of a contract with a party in a forum state does not,
in and of itself, provide the necessary contacts for personal
jurisdiction. 26
In Williams, an out-of-state physician contacted a lead refin-
ery and proposed terms for a contract engaging his serv
ices as a long-term consultant regarding lead poisoning. 27 We
21
See id.
22
Id.
23
Id.
24
Williams v. Gould, Inc., 232 Neb. 862, 879, 443 N.W.2d 577, 588 (1989).
25
Brief for appellant at 11.
26
Yeransian, supra note 1.
27
See Williams, supra note 24.
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c oncluded that under the facts and circumstances, a Nebraska
court’s exercise of specific personal jurisdiction over the physi-
cian was appropriate. 28 In examining similar cases from other
jurisdictions, we found that it was the defendant’s purposeful
act of soliciting patients from the forum state which provided
the necessary foreseeability of being haled into court in the
forum state and allowed personal jurisdiction to attach. 29 We
emphasized, however, that the residence and activities of a
physician’s patient cannot, unilaterally, supply the minimum
contacts necessary for due process. 30
Here, the parties agree that Foley reached out to Friedgut
at her Chicago office after a third party recommended her.
Friedgut represented Nebraska entities, but she did not solicit
Nebraska residents or entities as clients. Neither, in this case,
did DLA Piper. The district court noted this point when distin-
guishing the case from Williams.
[In] determining whether our courts have jurisdiction over
a plaintiff’s current or former out-of-state attorney, and inso-
far as it informs our “purposeful availment” analysis, we may
consider which party’s actions effectively initiated an attorney-
client relationship. 31 Pointedly, a Nebraska-based client will
not provide a sufficient basis for specific personal jurisdic-
tion over a nonresident attorney absent the solicitation of
Nebraska-based clients or something else linking the attorney
to the state. 32
Outside of Nebraska, “case law overflows on the point
that providing out-of-state legal representation is not enough
28
See id.
29
See id.
30
See id.
31
Cf. Williams, supra note 24, 232 Neb. at 881, 443 N.W.2d at 589 (“when
a health care provider, such as a physician or hospital, purposefully directs
activities toward a resident of the forum state, the provider is subject
to the personal jurisdiction of courts in the state where the health care
recipient resides”).
32
See Yeransian, supra note 1.
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to subject an out-of-state lawyer or law firm to the personal
jurisdiction of the state in which a client resides.” 33 Other
jurisdictions generally support the proposition that a non-
resident attorney providing expertise specific to federal law or
another state’s law is not subject to a state’s jurisdiction solely
based on a client’s or third party’s residency and activities in
the forum state. 34 As noted by Friedgut and DLA Piper, the
plaintiff cannot be the only link between the defendant and
the forum. 35 Rather, it is the defendant’s conduct that must
form the necessary connection with the forum State that is the
basis for its jurisdiction over the defendant. 36
In a case factually similar to the matter before us, the
Indiana Supreme Court rejected an argument that specific per-
sonal jurisdiction should attach. 37 In Boyer v. Smith, employers
brought claims, including malicious prosecution and abuse of
process, against a Kentucky-based attorney. 38 The employers’
33
Cape v. von Maur, 932 F. Supp. 124, 128 (D. Md. 1996) (citing Sher v.
Johnson, 911 F.2d 1357 (9th Cir. 1990); Austad Co. v. Pennie & Edmonds,
823 F.2d 223 (8th Cir. 1987); Kowalski v. Doherty, Wallace, Pillsbury &
Murphy, 787 F.2d 7 (1st Cir. 1986); and Mayes v. Leipziger, 674 F.2d 178
(2d Cir. 1982)).
34
See, e.g., Companion Property and Cas. Ins. Co. v. Palermo, 723 F.3d 557
(5th Cir. 2013); Boyer v. Smith, 42 N.E.3d 505 (Ind. 2015); Fulbright &
Jaworski v. Eighth Jud. Dist., 131 Nev. 30, 342 P.3d 997 (2015); Cerberus
Partners v. Gadsby & Hannah, LLP, 836 A.2d 1113 (R.I. 2003). See, also,
Sawtelle v. Farrell, 70 F.3d 1381 (1st Cir. 1995); Porter v. Berall, 142 F.
Supp. 2d 1145 (W.D. Mo. 2001), affirmed 293 F.3d 1073 (8th Cir. 2002);
Ex parte Dill, Dill, Carr, Stonbraker, 866 So. 2d 519 (Ala. 2003).
35
See Walden v. Fiore, 571 U.S. 277, 134 S. Ct. 1115, 188 L. Ed. 2d 12
(2014).
36
See id. See, also, Helicopteros Nacionales de Colombia v. Hall, 466
U.S. 408, 104 S. Ct. 1868, 80 L. Ed. 2d 404 (1984) (unilateral activity
of another person not appropriate consideration in determining whether
defendant has sufficient contacts with forum to justify assertion of
jurisdiction).
37
See Boyer, supra note 34.
38
See id.
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suit was filed in Indiana and related to the attorney’s repre-
sentation of a former employee in a federal employment dis-
crimination lawsuit. 39 In the underlying matter, the attorney
had requested and received a notice of right to sue from the
Indianapolis, Indiana, office of the U.S. Equal Employment
Opportunity Commission (EEOC), a federal agency, after her
client’s pro se claim was transferred from the Ohio EEOC
office. 40 The attorney then filed the lawsuit in a Kentucky
federal district court. 41 The employers argued that the attorney
had subjected herself to Indiana jurisdiction by communicating
with the Indiana EEOC, corresponding with and sending docu-
ments to the employers’ Indiana attorney, and representing her
client at a deposition in Indiana. 42 But the Indiana Supreme
Court disagreed, finding the attorney’s contacts with Indiana
far too minimal to warrant specific personal jurisdiction. 43 In
so holding, the Indiana Supreme Court noted that the attor-
ney had never practiced law in Indiana, had never sought or
obtained a license to practice law in Indiana, and was not solic-
iting business in Indiana. 44
The Eighth Circuit Court of Appeals conducted a com-
parable analysis in Austad Co. v. Pennie & Edmonds. 45 In
Austad Co., a South Dakota business sued a New York-based
law firm, alleging legal malpractice and breach of fiduciary
duty. 46 The claim was based on the firm’s representation of
39
See id.
40
See id.
41
See id. See, also, Boyer v. Smith, 24 N.E.3d 435 (Ind. App. 2014), vacated
37 N.E.3d 960 (Ind. 2015), and affirmed in part and in part vacated 42
N.E.3d 505 (Ind. 2015).
42
Id.
43
Id.
44
Id.
45
Austad Co., supra note 33.
46
Id.
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the business in patent litigation in Maryland. 47 The firm’s
contacts with South Dakota included numerous phone calls
into the state, monthly bills mailed into the state, checks paid
by a South Dakota bank, and a 3-day visit to South Dakota by
agents of the firm to inspect documents. 48 The Eighth Circuit
found these contacts insufficient to establish that the firm
purposefully availed itself of the benefits of South Dakota
law. 49 In affirming the district court’s dismissal of the claim,
the Eighth Circuit noted, among other factors, that the firm
did not maintain an office, advertise, or solicit business in
South Dakota. 50
Central States and SJ Apartment emphasize that St. James
Manor is in Nebraska and that “the damage to the Nebraska
clients occurred in Nebraska, when they lost their Nebraska
development project to foreclosure in Nebraska.” 51 This same
“effects of misconduct” approach has been rejected by other
courts. 52 Further, as the U.S. Supreme Court held in Walden 53:
[A]n injury is jurisdictionally relevant only insofar as it
shows that the defendant has formed a contact with the
forum State. The proper question is not where the plain-
tiff experienced a particular injury or effect but whether
the defendant’s conduct connects him to the forum in a
meaningful way.
47
Id.
48
Id.
49
Id.
50
Id.
51
Brief for appellant at 11.
52
See, e.g., Sawtelle v. Farrell, 70 F.3d 1381 (1st Cir. 1995) (legal
malpractice); Federal Deposit Ins. Corp. v. Malmo, 939 F.2d 535 (8th
Cir. 1991) (legal malpractice); Wright v. Yackley, 459 F.2d 287 (9th Cir.
1972) (medical malpractice); Poole v. Sasson, 122 F. Supp. 2d 556 (E.D.
Pa. 2000) (accountant malpractice); State ex rel. Sperandio v. Clymer, 581
S.W.2d 377 (Mo. 1979) (medical malpractice).
53
Walden, supra note 35, 571 U.S. at 290.
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We are not persuaded that the location of St. James Manor
provided Friedgut and DLA Piper with a meaningful connec-
tion to Nebraska when the legal benefit their clients sought was
a contract with a federal agency and through a federal program,
under which St. James Manor could just as well have been in
another state. We are also not persuaded that the Nebraska-
specific injuries alleged by Central States and SJ Apartment,
including the loss of St. James Manor, provided Friedgut and
DLA Piper a meaningful connection to Nebraska.
Central States and SJ Apartment have not met their burden
of demonstrating that a Nebraska court can constitutionally
exercise specific personal jurisdiction over Friedgut and DLA
Piper. The facts show that Foley reached out to Friedgut at
her Chicago office, hoping she could help Central States and
SJ Apartment navigate a dispute with a federal agency and
facilitate approval of a contract through a federal program.
Further, Friedgut performed all of her work from Illinois, she
was never licensed to practice law in Nebraska, she never trav-
eled to Nebraska for the case, she never filed suit in Nebraska,
and she never provided in-court representation in Nebraska.
Additionally, neither Friedgut nor DLA Piper had offices in
Nebraska or ever advertised in or solicited any business from
Nebraska. This informs a finding that Friedgut and DLA Piper
did not purposefully avail themselves of the privilege of trans-
acting business in Nebraska. Further, it appears that Friedgut’s
representation was specific to HUD and federal law; as such,
we are unconvinced that she and DLA Piper reasonably antici-
pated being haled into a Nebraska court in connection with
this representation.
Central States and SJ Apartment further argue that Friedgut
and DLA Piper should have anticipated being haled into a
Nebraska court because, as a sophisticated attorney and an
international law firm, they could easily have provided Central
States and SJ Apartment with an engagement letter expressly
disavowing Nebraska jurisdiction. We are not persuaded that
the sophistication of legal professionals contorts the applicable
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analysis in such a way, and we are unwilling to impose the
high standard suggested.
Finally, Foley’s affidavit maintains that Friedgut’s represen-
tation of Central States and SJ Apartment “went beyond mere
HUD matters.” Without more, however, conclusory statements
such as these provide an insufficient basis for an exercise of
specific personal jurisdiction. Due process requires more than
the attenuated contacts before us. 54
CONCLUSION
The district court did not err in dismissing Central States
and SJ Apartment’s complaint for lack of personal jurisdiction.
Affirmed.
Miller-Lerman, J., participating on briefs.
54
See Walden, supra note 35. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487191/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/18/2022 09:05 AM CST
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CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS
Cite as 312 Neb. 814
Michael T. and Cathy D. Christensen, individually
and as parents and next friends of Chad M.
Christensen, and as Coguardians and
Coconservators of Chad M. Christensen,
a protected person, appellants and
cross-appellees, v. Broken Bow Public Schools,
also known as Broken Bow School District 25,
a political subdivision of the State of Nebraska,
defendant and third-party plaintiff, appellee
and cross-appellant, and Beverly L. Sherbeck,
Personal Representative of the Estate of
Albert F. Sherbeck, deceased, third-party
defendant, appellee and cross-appellant.
___ N.W.2d ___
Filed November 4, 2022. No. S-21-885.
1. Directed Verdict: Appeal and Error. In reviewing a trial court’s rul-
ing on a motion for directed verdict, an appellate court must treat the
motion as an admission of the truth of all competent evidence submit-
ted on behalf of the party against whom the motion is directed; such
being the case, the party against whom the motion is directed is entitled
to have every controverted fact resolved in its favor and to have the
benefit of every inference which can reasonably be deduced from
the evidence.
2. Statutes: Ordinances: Legislature: Intent: Torts: Liability. In deter-
mining whether a statute or ordinance creates a duty, a court may deter-
mine that a statute gives rise to a tort duty to act in the manner required
by the statute where the statute is enacted to protect a class of persons
which includes the plaintiff, the statute is intended to prevent the par-
ticular injury that has been suffered, and the statute is intended by the
Legislature to create a private liability as distinguished from one of a
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public character. Consideration of the Legislature’s purpose in enacting
a statute is central to the analysis of whether the statute defines a duty
in tort and creates private civil liability.
3. Negligence: Proof: Statutes. The violation of a statute alone does not
prove negligence.
4. Negligence: Proof: Probable Cause: Damages. A plaintiff in ordinary
negligence must prove all four essential elements of the claim: the
defendant’s duty not to injure the plaintiff, a breach of that duty, proxi-
mate causation, and damages.
5. Negligence: Proof. A cause of action for negligence depends not only
upon the defendant’s breach of duty to exercise care to avoid injury to
the plaintiff, but also depends upon a showing that the injury suffered
by the plaintiff was caused by the alleged wrongful act or omission of
the defendant.
6. Proximate Cause: Evidence. Neb. Rev. Stat. § 60-6,273 (Reissue 2021)
explicitly makes all “[e]vidence that a person was not wearing an occu-
pant protection system or a three-point safety belt system” inadmissible
for the issue of proximate cause.
7. Statutes. Statutory text is to be given its plain and ordinary meaning.
8. Statutes: Appeal and Error. An appellate court is not at liberty to add
language to the plain terms of a statute to restrict its meaning.
Appeal from the District Court for Custer County: Karin L.
Noakes, Judge. Affirmed.
David S. Houghton and Keith A. Harvat, of Houghton,
Bradford & Whitted, P.C., L.L.O., and James V. Duncan and
John O. Sennett, of Sennett, Duncan, Jenkins & Wickham,
P.C., L.L.O., for appellants.
Matthew B. Reilly and Thomas J. Culhane, of
Erickson | Sederstrom, P.C., L.L.O., for appellee Broken Bow
Public Schools.
Jared J. Krejci, of Smith, Johnson, Allen, Connick & Hansen,
for appellee Beverly L. Sherbeck.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ., and Stratman, District Judge.
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Miller-Lerman, J.
I. NATURE OF CASE
Appellants, Michael T. and Cathy D. Christensen, brought
this case in the district court for Custer County individually
and as parents of their son, Chad M. Christensen, who was
seriously injured when a Broken Bow Public Schools (BBPS)
activities van in which he was a passenger was hit head on by
a truck driven by Albert F. Sherbeck. Chad was not wearing a
seatbelt. The Christensens separately sued Sherbeck’s widow,
Beverly L. Sherbeck, as personal representative of Sherbeck’s
estate (the Sherbeck estate) and the cases were consolidated.
On remand from a memorandum opinion of the Nebraska
Court of Appeals that reversed a directed verdict in favor of
BBPS, the district court considered several additional argu-
ments by BBPS. Following due consideration, the district
court granted a directed verdict in favor of BBPS and against
the Christensens, dismissed the Christensens’ complaint, and
dismissed BBPS’ third-party complaint against the Sherbeck
estate as moot. These rulings give rise to the instant appeal
by the Christensens and the cross-appeals by BBPS and the
Sherbeck estate.
In its order directing a verdict in favor of BBPS, the dis-
trict court stated, inter alia, that despite the provision in Neb.
Rev. Stat. § 60-6,267(2) (Reissue 2021) that drivers ensure
seatbelt use for children, Neb. Rev. Stat. § 60-6,269 (Reissue
2021) “explicitly states, ‘violations of the provisions of sec-
tions 60-6,267 . . . shall not constitute prima facie evidence
of negligence.’” The district court noted that Neb. Rev. Stat.
§ 60-6,273 (Reissue 2021) prohibits “using evidence that
a person was not wearing a seatbelt to establish proximate
cause” and in the absence of other admissible evidence of
proximate cause, the Christensens’ claims failed and were dis-
missed. Because we agree with the district court’s reading of
the relevant statutes, we affirm its order of a directed verdict
in favor of BBPS and in addition dismiss the cross-appeals
as moot.
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II. STATEMENT OF FACTS
1. The Collision
On June 1, 2012, a BBPS activities van collided with
a truck driven by Sherbeck. The van was driven by Zane
Harvey, a high school basketball coach for BBPS. Another
coach, Anthony Blum, and eight students, including Chad,
were passengers in the van, which was returning from a
summer basketball clinic in Kearney, Nebraska. Sherbeck’s
vehicle crossed the centerline and collided head on with the
van. Sherbeck, Harvey, and Blum died at the scene. The
Christensens’ son, Chad, was riding in the van unrestrained by
a seatbelt and was seriously injured. Chad was age 17 at the
time of the accident.
2. Procedural History
The Christensens filed separate actions against BBPS and
against Sherbeck’s widow, as personal representative of the
Sherbeck estate. In the action against BBPS, the Christensens
asserted five separate theories of recovery, including claims
that (1) BBPS was negligent in its operation of the van and was
negligent in its supervision of the students because it failed to
ensure that students were wearing seatbelts and (2) BBPS vio-
lated § 60-6,267(2), which provides:
Any person in Nebraska who drives any motor vehicle
which has or is required to have an occupant protection
system or a three-point safety belt system shall ensure
that all children eight years of age and less than eighteen
years of age being transported by such vehicle use an
occupant protection system.
The district court consolidated the cases; the case against the
Sherbeck estate was tried to a jury and the case against BBPS
was tried to the court. The jury returned a verdict in favor of
the Sherbeck estate on the Christensens’ claims against it. The
Court of Appeals affirmed the judgment in the case against the
Sherbeck estate in Christensen v. Sherbeck, 28 Neb. App. 332,
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CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS
Cite as 312 Neb. 814
943 N.W.2d 460 (2020), and we denied the Christensens’ peti-
tion for further review.
At the close of evidence in the Christensens’ case in chief
against BBPS, BBPS moved for a directed verdict. The dis-
trict court granted a directed verdict in favor of BBPS on
the grounds that Sherbeck’s vehicle’s crossing the centerline
constituted an efficient intervening cause that broke the causal
connection between Chad’s injuries and any failure on the part
of BBPS to ensure that Chad was wearing a seatbelt.
The Christensens appealed, and the Court of Appeals
reversed the district court’s decision to grant a directed verdict.
See Christensen v. Broken Bow Public Schools, No. A-19-125,
2020 WL 5785351 (Neb. App. Sept. 29, 2020) (selected for
posting to court website).
The Court of Appeals concluded that the district court erred
when it found, as a matter of law, that Sherbeck’s actions
constituted an efficient intervening cause. For purposes of its
analysis, the Court of Appeals assumed without deciding that
BBPS had a duty to ensure that Chad was wearing a seat-
belt while riding in the school activities van. Based on that
assumption, the Court of Appeals reasoned that the purpose
of such a duty would be to protect children in the event of
any sort of traffic accident and that therefore, the potential
for liability based on a violation of that duty did not rest on
the foreseeability of the exact circumstances of the collision.
The Court of Appeals concluded that because a head-on colli-
sion between the van and another vehicle was the sort of harm
against which a seatbelt was meant to protect, the collision
could not, as a matter of law, constitute an efficient intervening
cause to insulate BBPS from liability for failing to ensure that
Chad was wearing a seatbelt. The Court of Appeals remanded
the cause to the district court with directions to consider the
other arguments BBPS made in its motion for directed ver-
dict, and, if it rejected those other arguments, to proceed with
BBPS’ presentation of evidence in its defense.
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CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS
Cite as 312 Neb. 814
BBPS moved for rehearing and argued that the Court of
Appeals should have addressed its alternative argument that
§ 60-6,269 precluded the Christensens from establishing a neg-
ligence claim against BBPS based on the failure to ensure that
Chad was wearing a seatbelt. The Court of Appeals denied the
motion for rehearing, and we denied further review.
3. District Court Order
on Remand
Upon remand, the district court, as directed by the Court of
Appeals, considered BBPS’ other arguments for directed ver-
dict. The district court rejected BBPS’ argument that Harvey’s
and Blum’s actions related to the trip in the van were outside
the scope of their employment with BBPS because, as asserted
by BBPS, the trip occurred during the summer, which was out-
side the period of their teaching/coaching contracts. The court
reasoned that although their work was gratuitously provided
outside the time of their contracts, it was within the scope of
their employment, and that BBPS was not relieved of liability
on that basis.
The district court then considered BBPS’ argument regard-
ing the effect of § 60-6,269. The district court noted that
§ 60-6,269 “explicitly states, ‘violations of the provisions of
sections 60-6,267 and 60-6,268 shall not constitute prima facie
evidence of negligence.’” The court determined that given
the language of § 60-6,269, the Christensens’ claim based on
violation of § 60-6,267 must fail, and that BBPS’ motion for
directed verdict should be granted.
In its analysis, the district court noted that there was no
evidence that the actions of Harvey and Blum were deficient
in any way other than failing to ensure that the students were
wearing seatbelts. In considering the evidence of the elements
of the Chistensens’ negligence claim, the court noted the provi-
sions of § 60-6,273, which state:
Evidence that a person was not wearing an occupant
protection system or a three-point safety belt system at
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CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS
Cite as 312 Neb. 814
the time he or she was injured shall not be admissible in
regard to the issue of liability or proximate cause but may
be admissible as evidence concerning mitigation of dam-
ages, except that it shall not reduce recovery for damages
by more than five percent.
The court stated that the plain language of § 60-6,273
“prohibits using evidence that a person was not wearing a
seatbelt to establish proximate cause” and that it also “clearly
prohibits evidence of non-use in regard to liability.” The
court determined that because § 60-6,273 “does not allow
evidence of non-use of a seatbelt to prove liability or proxi-
mate cause” and because the Christensens presented no other
evidence of proximate cause, their various claims for negli-
gence must fail.
Having determined that the Christensens had not presented
evidence to support their claims, the court dismissed all of
the Christensens’ claims against BBPS. The court later denied
the Christensens’ motion for a new trial and dismissed BBPS’
third-party complaint against the Sherbeck estate as moot.
The Christensens appeal, and BBPS and the Sherbeck estate
cross-appeal.
III. ASSIGNMENTS OF ERROR
The Christensens claim, summarized and restated, that
the district court erred when it interpreted §§ 60-6,269 and
60-6,273 to preclude their claims against BBPS and determined
that they had not presented evidence other than nonuse of seat-
belts to support their claims.
In its cross-appeal, BBPS claims, restated, that the district
court erred when it found that BBPS employed Harvey and
Blum on the date of the collision, and BBPS also asserts that it
was entitled to summary judgment on various defenses, includ-
ing assumption of risk and contributory negligence.
In its cross-appeal, the Sherbeck estate contends that all
claims against it in this case are barred by issue preclusion and
the law-of-the-case doctrine.
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CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS
Cite as 312 Neb. 814
IV. STANDARD OF REVIEW
[1] In reviewing a trial court’s ruling on a motion for
directed verdict, an appellate court must treat the motion as an
admission of the truth of all competent evidence submitted on
behalf of the party against whom the motion is directed; such
being the case, the party against whom the motion is directed
is entitled to have every controverted fact resolved in its favor
and to have the benefit of every inference which can reason-
ably be deduced from the evidence. de Vries v. L & L Custom
Builders, 310 Neb. 543, 968 N.W.2d 64 (2021).
V. ANALYSIS
The Christensens claim that the district court erred when
it granted a directed verdict and dismissed all of their claims
against BBPS. We conclude that through Nebraska’s statutes
addressing civil litigation and seatbelt use, the Legislature
has determined the legal significance of seatbelt nonuse and
specifically did not intend for evidence of seatbelt nonuse to
be admissible to show proximate cause and create civil liabil-
ity. As we explain below and given the record, we affirm the
order of the district court, which directed a verdict in favor of
BBPS. Consequently, the cross-appeals filed by BBPS and the
Sherbeck estate are moot.
1. Relevant Statutes
We begin by setting forth the statutes relevant to our analy-
sis. Section 60-6,267(2) describes a driver’s responsibility to
ensure seatbelt use by children. It provides:
Any person in Nebraska who drives any motor vehicle
which has or is required to have an occupant protection
system or a three-point safety belt system shall ensure
that all children eight years of age and less than eighteen
years of age being transported by such vehicle use an
occupant protection system.
Neb. Rev. Stat. § 60-6,268 (Reissue 2021) makes it an
infraction to violate subsections (1) or (2) of § 60-6,267 and
provides for a monetary fine.
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CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS
Cite as 312 Neb. 814
Section 60-6,269 provides for the legal significance of viola-
tions and compliance with seatbelt usage and states:
Violations of the provisions of sections 60-6,267 and
60-6,268 shall not constitute prima facie evidence of neg-
ligence nor shall compliance with such sections constitute
a defense to any claim for personal injuries to a child or
recovery of medical expenses for injuries sustained in
any motor vehicle accident. Violation of such sections by
a driver shall not constitute a defense for another person
to any claim for personal injuries to a child or recovery
of medical expenses for injuries sustained in any motor
vehicle accident.
Critical to our analysis is the evidentiary rule set forth in
§ 60-6,273:
Evidence that a person was not wearing an occupant
protection system or a three-point safety belt system at
the time he or she was injured shall not be admissible in
regard to the issue of liability or proximate cause but may
be admissible as evidence concerning mitigation of dam-
ages, except that it shall not reduce recovery for damages
by more than five percent.
2. Christensens’ Claims Against BBPS
Many of the Christensens’ arguments are based on their
linguistic examination of the statutory framework set forth
above that they contend distinguishes between seatbelt use by
adults, which is inadmissible in regard to liability or proximate
cause, and seatbelt use by children, which they contend may be
admitted to demonstrate the negligence of a driver who fails to
secure them. As we explain below, we reject these arguments.
Reading the statutes in harmony, we conclude that a driver’s
violation of a seatbelt statute does not form a prima facie case
of his or her negligence and that such evidence is inadmis-
sible on the issue of liability or proximate cause predicated
on seatbelt nonuse, including a claim on behalf of a child for
personal injuries.
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CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS
Cite as 312 Neb. 814
(a) Breach of a Statutory “Duty” and
Evidence of Proximate Cause
The Christensens assert that §§ 60-6,269 and 60-6,273 apply
only to seatbelt use by adults. They further contend that by
not securing a child, a driver has violated § 60-6,267(2) and
has thereby breached his or her duty to protect children from
collisions. That is, the Chistensens claim that failure to com-
ply with § 60-6,267(2) in and of itself forms the basis for a
breach of a statutory duty for purposes of negligence. The
Christensens contend that the policy goals of the Legislature
are tailored to protect an accident victim and not to protect a
driver who broke a child safety law from being held account-
able in civil court by the parents of an injured child.
[2] In determining whether a statute or ordinance creates
a duty, a court may determine that a statute gives rise to a
tort duty to act in the manner required by the statute where
the statute is enacted to protect a class of persons which
includes the plaintiff, the statute is intended to prevent the
particular injury that has been suffered, and the statute is
intended by the Legislature to create a private liability as
distinguished from one of a public character. Stonacek v. City
of Lincoln, 279 Neb. 869, 782 N.W.2d 900 (2010) (quoting
Claypool v. Hibberd, 261 Neb. 818, 626 N.W.2d 539 (2001)).
Consideration of the Legislature’s purpose in enacting a stat-
ute is central to the analysis of whether the statute defines a
duty in tort and creates private civil liability. Stonacek v. City
of Lincoln, supra.
We conclude that the plain statutory language does not sup-
port the Christensens’ theory of the Legislature’s intention.
The provision in § 60-6,269 that a violation of § 60-6,267
“shall not constitute prima facie evidence of negligence” is
antithetical to the prosecution of a negligence case based on a
driver’s failure to secure a child. The Legislature’s inclusion
of § 60-6,269 shows that the purpose of the statutory scheme
was decidedly not to create private civil liability.
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CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS
Cite as 312 Neb. 814
[3-5] Even if BBPS’ violation of § 60-6,267 breached a
statutory duty to ensure Chad was using an occupant protection
system, it is fundamental that the violation of a statute alone
does not prove negligence. A plaintiff in ordinary negligence
must prove all four essential elements of the claim: the defend
ant’s duty not to injure the plaintiff, a breach of that duty,
proximate causation, and damages. Susman v. Kearney Towing
& Repair Ctr., 310 Neb. 910, 970 N.W.2d 82 (2022). A cause
of action for negligence depends not only upon the defendant’s
breach of duty to exercise care to avoid injury to the plaintiff,
but also depends upon a showing that the injury suffered by
the plaintiff was caused by the alleged wrongful act or omis-
sion of the defendant. Id. In Susman, we recently recalled one
of our earliest negligence cases, which stated: “‘“The cause
of action in any case embraces not only the injury which the
complaining party has received, but it includes more. All the
facts which, taken together, are necessary to fix the responsi-
bility are parts of the cause of action.”’” 310 Neb. at 921, 970
N.W.2d at 91 (quoting Westover v. Hoover, 94 Neb. 596, 143
N.W. 946 (1913)).
[6-8] Even assuming that the violation of § 60-6,267
breached a duty of care, there is no admissible evidence that
violation of the child seatbelt requirement proximately caused
Chad’s injuries. To the contrary, § 60-6,273 explicitly makes
all “[e]vidence that a person was not wearing an occupant
protection system or a three-point safety belt system” inad-
missible for the issue of proximate cause. Statutory text is to
be given its plain and ordinary meaning. Dutcher v. Nebraska
Dept. of Corr. Servs., ante p. 405, 979 N.W.2d 245 (2022). An
appellate court is not at liberty to add language to the plain
terms of a statute to restrict its meaning. Id. The Legislature
has dictated that seatbelt nonuse is excluded on the issue of
proximate cause.
The Christensens urge us to factor in Chad’s age as a
child into our statutory analysis. This argument is unavailing.
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CHRISTENSEN V. BROKEN BOW PUBLIC SCHOOLS
Cite as 312 Neb. 814
We are aware that the Legislature imposed a fine on drivers
who fail to secure children in their vehicles. See § 60-6,268.
However, it did not distinguish the age or status of the “per-
son” without the seatbelt when setting forth the evidentiary
rule in § 60-6,273. According to the Legislature, all nonuse
evidence is inadmissible regarding proximate cause. Id. We
are not inclined to add language regarding age to change the
statute’s exclusionary plain meaning. See id. Indeed, we have
explained in the past that given the language of § 60-6,273,
evidence of seatbelt nonuse is admissible only for mitigation
of damages. Werner v. County of Platte, 284 Neb. 899, 824
N.W.2d 38 (2012); Fickle v. State, 273 Neb. 990, 735 N.W.2d
754 (2007), modified on denial of rehearing 274 Neb. 267,
759 N.W.2d 113.
In this case, aside from the failure to ensure Chad was
restrained by a seatbelt in the activities van, there was no evi-
dence that Harvey’s or Blum’s actions were deficient. Without
the seatbelt evidence, the Christensens’ claims based on BBPS’
violation of § 60-6,267, or even a purported breach of a statu-
tory duty based in § 60-6,267, were properly dismissed. We
find no error in the directed verdict in favor of BBPS.
(b) Evidence of BBPS’ Negligent
Supervision of Students
The Christensens attempt to circumvent §§ 60-6,267 and
60-6,269 by arguing that seatbelt nonuse by a student could
be direct evidence that the school breached its duty to exer-
cise reasonable care under the circumstances. We reject this
argument.
The circumstances of this case are unrestrained children in
a van which was hit head on by a truck. Evidence of a per-
son’s seatbelt nonuse is inadmissible for the issue of “liability
or proximate cause.” § 60-6,273. The district court prop-
erly excluded evidence of seatbelt nonuse. See § 60-6,273.
Without evidence of seatbelt nonuse, which evidence was
essential to the claim of negligent supervision, but which
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Cite as 312 Neb. 814
was properly excluded, the Christensens’ evidence failed
to show proximate cause. Taking every controverted fact
resolved in the Christensens’ favor and giving them the ben-
efit of every inference which can reasonably be deduced from
the admissible evidence, we agree with the district court that
the Christensens failed to show that BBPS caused Chad’s
injuries. We find no error in the directed verdict in favor
of BBPS.
3. Cross-Appeals and BBPS’ Third-Party
Complaint Against Sherbeck Estate
In view of our disposition affirming the directed verdict in
favor of BBPS, we determine that the district court correctly
dismissed as moot BBPS’ third-party complaint against the
Sherbeck estate.
VI. CONCLUSION
For the reasons explained above, we affirm the order of the
district court that directed the verdict in favor of BBPS and
dismissed the Christensens’ claims against BBPS. The issues
raised by the cross-appeals filed by BBPS and the Sherbeck
estate are now moot or without merit, and we decline to reach
them. See In re Maint. Fund of Sunset Mem. Park Chapel, 302
Neb. 954, 925 N.W.2d 695 (2019).
Affirmed.
Freudenberg, J., not participating. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487210/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/18/2022 09:05 AM CST
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DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 405
Suzette D. Dutcher, appellant,
v. Nebraska Department of
Correctional Services, appellee.
___ N.W.2d ___
Filed September 9, 2022. No. S-21-740.
1. Summary Judgment: Appeal and Error. An appellate court affirms a
lower court’s grant of summary judgment if the pleadings and admitted
evidence show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from the facts and that
the moving party is entitled to judgment as a matter of law.
2. ____: ____. In reviewing a summary judgment, an appellate court views
the evidence in the light most favorable to the party against whom the
judgment was granted, and gives that party the benefit of all reasonable
inferences deducible from the evidence.
3. Judgments: Appeal and Error. Statutory interpretation is a question of
law. When reviewing questions of law, an appellate court has an obliga-
tion to resolve the questions independently of the conclusion reached by
the trial court.
4. Workers’ Compensation: Jurisdiction: Legislature. As a statutorily
created court, it is the role of the Legislature to determine what acts fall
within the Workers’ Compensation Court’s exclusive jurisdiction.
5. Workers’ Compensation: Legislature. The Nebraska Workers’
Compensation Act creates rights which did not exist at common law,
and the Legislature may place such restrictions thereon as it sees fit.
6. Statutes. Statutes relating to the same subject matter are to be construed
together so as to maintain a consistent and sensible scheme.
7. ____. Statutory interpretation begins with the text, and the text is to be
given its plain and ordinary meaning.
8. Statutes: Legislature. It is a fundamental canon of statutory construc-
tion that words generally should be interpreted as taking their ordinary
meaning at the time the Legislature enacted the statute.
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DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 405
9. ____: ____. When the Legislature uses legal terms of art in statutes,
such terms should be construed and understood according to their
accepted legal meaning.
10. Statutes: Appeal and Error. An appellate court will not resort to inter-
pretation of statutory language to ascertain the meaning of words which
are plain, direct, and unambiguous.
11. ____: ____. An appellate court is not at liberty to add language to the
plain terms of a statute to restrict its meaning.
12. Statutes: Courts: Appeal and Error. An appellate court does not sit as
a superlegislature to review the wisdom of legislative acts.
13. Fair Employment Practices: Discrimination: Intent. Employment dis-
crimination laws such as those found in the Nebraska Fair Employment
Practice Act have not vested in the Nebraska courts the authority to sit
as super personnel departments reviewing the wisdom or fairness of the
business judgments made by employers, except to the extent that those
judgments involve intentional discrimination.
14. Workers’ Compensation. The Nebraska Workers’ Compensation Act
covers personal injury or death caused to an employee by accident
or occupational disease, arising out of and in the course of his or her
employment, without regard to the negligence of the employer.
15. Workers’ Compensation: Torts: Intent. There is no intentional tort
exception to the Nebraska Workers’ Compensation Act.
16. Workers’ Compensation: Torts. Under the workers’ compensation
statutes, employees give up the complete compensation that they might
recover under tort law in exchange for no-fault benefits that they quickly
receive for most economic losses from work-related injuries and the
employer receives immunity from common-law suit.
17. Workers’ Compensation: Immunity. The reason for an employer’s
immunity is the quid pro quo by which the employer gives up his or her
normal defenses and assumes automatic liability, while the employee
gives up his or her right to common-law verdicts.
18. Workers’ Compensation. When an employee sustains an injury that
arises out of and in the course of his or her employment and such
injury is covered by the Nebraska Workers’ Compensation Act, then
the employee surrenders his or her right to any other method, form, or
amount of compensation or determination thereof for that injury against
his or her employer or the workers’ compensation insurer.
Appeal from the District Court for Red Willow County:
David W. Urbom, Judge. Affirmed.
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DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 405
Tanya J. Hansen, of Smith, Johnson, Allen, Connick &
Hansen, for appellant.
Douglas J. Peterson, Attorney General, James A. Campbell,
Solicitor General, and Phoebe L. Gydesen for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
INTRODUCTION
An employee of the Nebraska Department of Correctional
Services (Department) was injured while participating in man-
dated self-defense training. The employee sought and received
workers’ compensation benefits from the time she was injured,
including vocational rehabilitation. The employee was ulti-
mately unable to find a position with the Department that
would accommodate her physical restrictions, and her employ-
ment was terminated. She brought suit against the Department
for wrongful termination on the basis of her disability, in viola-
tion of the Nebraska Fair Employment Practice Act (NFEPA). 1
The district court found that the exclusivity provisions of
the Nebraska Workers’ Compensation Act 2 provide the sole
remedy for the employee against the Department in this situ-
ation, barring the employee’s claim. The employee appeals.
We affirm.
BACKGROUND
Suzette D. Dutcher began working for the Department in
February 2002 as a corporal. In 2009, she changed jobs within
the Department, becoming a chemical dependency counselor.
In 2010, Dutcher became a supervisor of the chemical depen-
dency counselors.
1
See Neb. Rev. Stat. §§ 48-1101 to 48-1125 (Reissue 2021).
2
Neb. Rev. Stat. §§ 48-101 to 48-1,117 (Reissue 2021).
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DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 405
Being a supervisor meant that Dutcher’s job became more
administrative, but she still had contact with inmates when
she mediated disagreements between counselors and inmates,
taught classes, and conducted facility walk-throughs as part
of her “officer of the day” duties. Dutcher testified in her
deposition that she was required to maintain certification in
“level 3” pressure point control tactics (PPCT) training. This
training included self-defense techniques such as takedowns,
ground fighting, and kicking. PPCT training was required
yearly, and Dutcher was required to demonstrate different
PPCT techniques that included kicking and kneeling in order
to maintain her certification. PPCT training and certification
was not explicitly listed in the supervisor job description or
in an operational memorandum describing “officer of the
day” duties.
In April 2015, Dutcher suffered an injury to her right knee
while completing PPCT training. Dutcher timely notified the
Department of her injury. Her medical expenses associated
with the injury were covered through the State of Nebraska’s
third-party administrator for workers’ compensation claims.
Dutcher initially engaged in physical therapy, which was
unsuccessful. Dutcher had her first surgery in July 2015.
In September 2015, Dutcher was able to return to her job
with physical restrictions. The physical limitations included
no stooping, twisting, or bending her right knee; no squat-
ting, crawling, or kneeling; no kicking or hitting; and no
running. Because of her physical restrictions, the Department
required Dutcher to have a level 3 PPCT-certified employee
with her when she conducted rounds or any time she interacted
with inmates.
After returning to work, Dutcher had more surgeries in
September 2015, June 2018, and August 2018. Dutcher
received regular payments for temporary total disability start-
ing in August 2015.
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DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 405
In September 2016, Dutcher received a letter from the
Department advising her that 1 year had elapsed since work
restrictions had been imposed and that since work restric-
tions remained, pursuant to Department policy, she had 90
days to find a new position or be terminated from her cur-
rent position. After failing to find another position within the
Department that could accommodate her physical restrictions,
Dutcher’s employment was terminated in December 2016. The
Department explained that Dutcher was unable to fulfill the
regular duties of her position. Dutcher admitted in her deposi-
tion that she was not physically capable of performing level 3
PPCT tactics or takedown techniques.
In March 2017, Dutcher was declared by her doctor to be at
maximum medical improvement, with a permanent impairment
rating and permanent work restrictions. Dutcher’s permanent
work restrictions included no lifting over 20 pounds; no stoop-
ing, twisting, bending, squatting, crawling, or kneeling; limits
on the amount of walking, standing, and climbing; and no
physical contact with inmates.
Rather than accepting the workers’ compensation carrier’s
payment to close the claim based on Dutcher’s reaching her
maximum medical improvement, Dutcher elected to exercise
her right to appointment of a vocational rehabilitation coun-
selor. The Workers’ Compensation Court approved Dutcher’s
election to participate in a vocational rehabilitation plan.
Dutcher’s appointed vocational rehabilitation counselor
indicated in her initial report that Dutcher may qualify for
some social services jobs based on Dutcher’s transferable
skills, but that she would not likely earn wages comparable
to what she was making at the time of her injury. After con-
ducting market research regarding Dutcher’s current educa-
tional level and qualifications, the counselor determined that
Dutcher would need to secure additional education within her
field or look at a new field to gain skills for future employ-
ment. Dutcher and her counselor decided the best plan was
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DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 405
to pursue an associate degree in business administration.
The counselor developed a vocational rehabilitation plan for
Dutcher to obtain such a degree with the expected comple-
tion in May 2021. After approving the plan, the Workers’
Compensation Court ordered the payment of Dutcher’s tuition,
books, and incidentals.
Dutcher completed her vocational rehabilitation in May
2021 by obtaining her degree. However, rather than engage
in the job placement process with her counselor, Dutcher
decided to join a family agricultural business she owns with
her husband.
As of July 2, 2021, Dutcher had received more than $199,000
in workers’ compensation indemnity payments, which included
$1,140 every 2 weeks in temporary total disability, permanent
partial disability benefits, and a $61,275 lump sum payment in
August 2019.
While Dutcher was receiving workers’ compensation dis-
ability payments and engaging in her vocational rehabilitation
plan, she filed a complaint on September 12, 2018, against the
Department, alleging the Department violated the Americans
with Disabilities Act of 1990 and the NFEPA. The Department
removed the case to federal court, where the Americans with
Disabilities Act of 1990 claim was dismissed. The remaining
NFEPA claim was remanded to state court.
Dutcher alleged in relation to her claim under the NFEPA
that because she had fulfilled all material terms and conditions
of employment at all relevant times, the Department’s prof-
fered reason for terminating her employment was pretextual.
She alleged that the real reason the Department terminated
her employment was on the basis of her disability. Dutcher
pointed out that the Department had originally accommodated
her medical restrictions, and she asserted that “[p]erforming
Level 3 PPCT take down techniques and restraints on inmates
was not part of [her] regular job duties.”
The Department’s answer asserted that Dutcher’s fail-
ure to “meet the occupational qualifications required by the
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[Department] would have caused a direct threat which involved
significant risks to the health and/or safety of [Dutcher] and
others in the work place which could not be eliminated by
a reasonable accommodation” and that as such, the termi-
nation of Dutcher’s employment was “consistent with busi-
ness necessity.” Further, the Department asserted that to the
extent Dutcher was denied an accommodation, such denial was
because the accommodation would impose an undue burden
or would have posed a direct threat to the health or safety of
Dutcher or other individuals.
The Department moved for summary judgment on the
basis of the exclusivity provisions of the Nebraska Workers’
Compensation Act. After an evidentiary hearing, the district
court entered an order granting the Department’s motion for
summary judgment. The district court concluded that the exclu-
sivity provisions of the Nebraska Workers’ Compensation Act,
§§ 48-111 and 48-148, barred Dutcher’s NFEPA claim as a
matter of law. Dutcher appeals.
ASSIGNMENTS OF ERROR
Dutcher assigns that the district court erred in determin-
ing her claim was barred by the exclusivity provisions of the
Nebraska Workers’ Compensation Act and, as such, erred in
granting the Department’s motion for summary judgment.
STANDARD OF REVIEW
[1] An appellate court affirms a lower court’s grant of sum-
mary judgment if the pleadings and admitted evidence show
that there is no genuine issue as to any material facts or as
to the ultimate inferences that may be drawn from the facts
and that the moving party is entitled to judgment as a matter
of law. 3
[2] In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party
3
Sundermann v. Hy-Vee, 306 Neb. 749, 947 N.W.2d 492 (2020).
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against whom the judgment was granted, and gives that party
the benefit of all reasonable inferences deducible from the
evidence. 4
[3] Statutory interpretation is a question of law. When
reviewing questions of law, an appellate court has an obliga-
tion to resolve the questions independently of the conclusion
reached by the trial court. 5
ANALYSIS
[4,5] The Workers’ Compensation Court is a statutorily cre-
ated court designed to have jurisdiction over all injuries fall-
ing within the scope of the Nebraska Workers’ Compensation
Act. 6 As a statutorily created court, it is the role of the
Legislature to determine what acts fall within the Workers’
Compensation Court’s exclusive jurisdiction. 7 The Nebraska
Workers’ Compensation Act creates rights which did not exist
at common law, and the Legislature may place such restrictions
thereon as it sees fit. 8
Whether the exclusivity provisions of the Nebraska
Workers’ Compensation Act applied to the facts of this case,
thereby depriving the district court of jurisdiction to hear
Dutcher’s NFEPA action, is a question of law as to the mean-
ing of the relevant provisions of those two legislative acts.
Thus, we begin by setting forth our principles of statutory
construction.
[6-9] Statutes relating to the same subject matter are to be
construed together so as to maintain a consistent and sensible
scheme. 9 However, statutory interpretation begins with the
4
Id.
5
Id.
6
Estate of Teague v. Crossroads Co-op Assn., 286 Neb. 1, 834 N.W.2d 236
(2013).
7
Id.
8
Id.
9
See Grothen v. Grothen, 308 Neb. 28, 952 N.W.2d 650 (2020).
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text, and the text is to be given its plain and ordinary mean-
ing. 10 It is a fundamental canon of statutory construction that
words generally should be interpreted as taking their ordinary
meaning at the time the Legislature enacted the statute. 11 When
the Legislature uses legal terms of art in statutes, such terms
should be construed and understood according to their accepted
legal meaning. 12
[10-12] An appellate court will not resort to interpretation
of statutory language to ascertain the meaning of words which
are plain, direct, and unambiguous. 13 Also, an appellate court
is not at liberty to add language to the plain terms of a statute
to restrict its meaning. 14 An appellate court does not sit as a
superlegislature to review the wisdom of legislative acts. 15
NFEPA
[13] Employment discrimination laws such as those found
in the NFEPA have not vested in the Nebraska courts the
authority to sit as super personnel departments reviewing
the wisdom or fairness of the business judgments made by
employers, except to the extent that those judgments involve
intentional discrimination. 16 The NFEPA states at § 48-1101
that it “is the policy of [Nebraska] to foster the employ-
ment of all employable persons in the state on the basis of
merit . . . and to safeguard their right to obtain and hold
employment without discrimination.” The NFEPA provides at
§ 48-1104(1), in relevant part, that “[i]t shall be an unlawful
10
Nebraska Republican Party v. Shively, 311 Neb. 160, 971 N.W.2d 128
(2022).
11
Id.
12
Clark v. Sargent Irr. Dist., 311 Neb. 123, 971 N.W.2d 298 (2022).
13
Nebraska Republican Party v. Shively, supra note 10.
14
Spratt v. Crete Carrier Corp., 311 Neb. 262, 971 N.W.2d 335 (2022).
15
Gourley v. Nebraska Methodist Health Sys., 265 Neb. 918, 663 N.W.2d 43
(2003).
16
Baker-Heser v. State, 309 Neb. 979, 963 N.W.2d 59 (2021).
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employment practice for an employer . . . to discriminate
against any individual with respect to compensation, terms,
conditions, or privileges of employment, because of such indi-
vidual’s race, color, religion, sex, disability, marital status, or
national origin[.]”
Under § 48-1107.01(1), it is unlawful for a covered entity to
“[d]iscriminate against a qualified individual with a disability
because of the disability of such individual in regard to job
application procedures, the hiring, advancement, or discharge
of employees, employee compensation, job training, and other
terms, conditions, and privileges of employment[.]” Section
48-1102(10)(a) defines “[q]ualified individual with a disabil-
ity” as “an individual with a disability who, with or without
reasonable accommodation, can perform the essential func-
tions of the employment position that such individual holds or
desires” and states that “[c]onsideration shall be given to the
employer’s judgment as to what functions of a job are essen-
tial . . . .” Under § 48-1102(11), “[r]easonable accommodation
shall not include accommodations which the covered entity can
demonstrate require significant difficulty or expense thereby
posing an undue hardship upon the covered entity.”
While the NFEPA establishes an Equal Opportunity
Commission to, among other things, receive, investigate, and
pass upon charges of unlawful employment practices, 17 the
NFEPA provides in § 48-1119(4) that “[a] complainant who
has suffered physical, emotional, or financial harm as a result
of a violation of section 48-1104 or 48-1114 may, at any stage
of the proceedings prior to dismissal, file an action directly in
the district court of the county where such alleged violation
occurred” and that “[t]he district court shall file and try such
case as any other civil action, and any successful complainant
shall be entitled to appropriate relief, including temporary or
permanent injunctive relief, general and special damages, rea-
sonable attorney’s fees, and costs.”
17
See §§ 48-1116 and 48-1117(1).
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The NFEPA does not refer to the Nebraska Workers’
Compensation Act, and it does not contain any provision relat-
ing to exclusivity. The only provision relating to construction
of the act states, “Nothing contained in the [NFEPA] shall be
deemed to repeal any of the provisions of the civil rights law,
any other law of this state, or any municipal ordinance relating
to discrimination because of race, creed, color, religion, sex,
disability, or national origin.” 18
Nebraska Workers’
Compensation Act
[14,15] The Nebraska Workers’ Compensation Act covers
personal injury or death caused to an employee by accident
or occupational disease, arising out of and in the course of his
or her employment, 19 without regard to the negligence of the
employer. 20 Injury and personal injuries “mean only violence to
the physical structure of the body and such disease or infection
as naturally results therefrom.” 21 An accident “means an unex-
pected or unforeseen injury happening suddenly and violently,
with or without human fault, and producing at the time objec-
tive symptoms of an injury.” 22 This court has long held that
there is no intentional tort exception to the Nebraska Workers’
Compensation Act. 23
Section 48-110 states that when an employer and employee
accept the provisions of the Nebraska Workers’ Compensation
Act, by express or implied agreement or as provided in
§ 48-112, the employee shall be compensated according to the
schedule of the act. Section 48-111 provides in relevant part
that “[s]uch agreement or the election provided for in section
18
§ 48-1124.
19
§ 48-101.
20
§ 48-110.
21
§ 48-151(4).
22
§ 48-151(2).
23
Estate of Teague v. Crossroads Co-op Assn., supra note 6.
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48-112 shall be a surrender by the parties thereto of their
rights to any other method, form, or amount of compensation
or determination thereof than as provided in the Nebraska
Workers’ Compensation Act . . . .” Section 48-148 provides
in relevant part that if an employee, or the employee’s depen-
dents, files a claim for a personal injury from an employer sub-
ject to the Nebraska Workers’ Compensation Act, that action
“shall constitute a release to such employer of all claims or
demands at law, if any, arising from such injury.”
[16,17] Workers’ compensation laws reflect a compromise
between employers and employees. 24 Under these statutes,
employees give up the complete compensation that they might
recover under tort law in exchange for no-fault benefits that
they quickly receive for most economic losses from work-
related injuries and the employer receives immunity from com-
mon-law suit. 25 The reason for the employer’s immunity is the
quid pro quo by which the employer gives up his or her normal
defenses and assumes automatic liability, while the employee
gives up his or her right to common-law verdicts. 26
[18] We have said the Nebraska Workers’ Compensation
Act “‘provides the exclusive remedy by the employee against
the employer for any injury arising out of and in the course
of the employment.’” 27 We have explained that § 48-148 of
the Nebraska Workers’ Compensation Act provides that if an
employee’s injury arises out of and in the course of employ-
ment, the employee’s exclusive remedy is against the employer
for workers’ compensation. 28 Thus, we have held:
24
Pittman v. Western Engineering Co., 283 Neb. 913, 813 N.W.2d 487
(2012).
25
See Estate of Teague v. Crossroads Co-op Assn., supra note 6.
26
Pittman v. Western Engineering Co., supra note 24.
27
Bennett v. Saint Elizabeth Health Sys., 273 Neb. 300, 305, 729 N.W.2d 80,
84 (2007).
28
Jacobs Engr. Group v. ConAgra Foods, 301 Neb. 38, 917 N.W.2d 435
(2018).
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[W]hen an employee sustains an injury that arises out
of and in the course of his or her employment and such
injury is covered by the Nebraska Workers’ Compensation
Act, then the employee surrenders his or her right to
any other method, form, or amount of compensation or
determination thereof for that injury against his or her
employer or the workers’ compensation insurer. 29
We have elaborated that while an individual can be an employee
of an entity and nevertheless sue that entity in district court
where the particular facts show that the suit in district court
is not covered under or barred by the Nebraska Workers’
Compensation Act, 30 the employee must allege sufficient
facts that, if true, would demonstrate the Nebraska Workers’
Compensation Act does not apply. 31
We have never specifically addressed the exclusivity provi-
sions of the Nebraska Workers’ Compensation Act in the con-
text of a civil claim brought in district court under the NFEPA.
We have, however, found that the exclusivity provisions of the
Nebraska Workers’ Compensation Act applied to various other
civil actions brought in district court, despite plaintiffs’ argu-
ments that the actions were sufficiently distinct from their
workers’ compensation claim to not “aris[e] from such injury.”
These have included actions brought in district court for wrong-
ful death, 32 assault and battery, 33 bystander negligent infliction
of emotional distress, 34 medical malpractice, 35 bad faith relat-
ing to administration of a workers’ compensation claim, 36
29
Ihm v. Crawford & Co., 254 Neb. 818, 821, 580 N.W.2d 115, 118 (1998).
30
Pittman v. Western Engineering Co., supra note 24.
31
Estate of Teague v. Crossroads Co-op Assn., supra note 6.
32
Id.
33
Id.
34
Pittman v. Western Engineering Co., supra note 24.
35
Bennett v. Saint Elizabeth Health Sys., supra note 27.
36
Ihm v. Crawford & Co., supra note 29.
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and violations of “‘the Factory Act[,]’ [Neb. Rev. Stat.]
§§ 48-409 and 48-422, R. R. S. 1943.” 37
For instance, in Pittman v. Western Engineering Co., 38 we
rejected the plaintiff’s argument that his claim for bystander
negligent infliction of emotional distress after witnessing his
wife’s work-related death did not “aris[e] from such injury”
for purposes of § 48-148. The plaintiff argued that his action
did not arise from the personal injury for which he received
workers’ compensation benefits, because, with the exception
of first responders, purely psychological damages are not
recoverable under the definition of “injury” in the Nebraska
Workers’ Compensation Act. Further, the plaintiff argued his
injuries arose separately from the injuries suffered by his wife,
because they resulted solely from his shock of encountering
the scene of her death.
We held that upon accepting payment as a dependent, by
operation of § 48-148, the husband released his wife’s employer
from further claims arising from her injury, and that his action
in district court was barred by the employer immunity found
in § 48-148. We explained that the husband’s claim was barred
by the plain language of “arising from such injury.” We uti-
lized a “rational nexus” test and reasoned that the husband’s
claim “logically ar[ose]” from his wife’s death, because, had
her injury and resultant death not occurred, the husband’s emo-
tional distress claims would not have arisen. 39
37
Edelman v. Ralph Printing & Lithographing, Inc., 189 Neb. 763, 764,
205 N.W.2d 340, 340 (1973). But see, Riesen v. Irwin Indus. Tool Co.,
272 Neb. 41, 717 N.W.2d 907 (2006) (without discussion of exclusivity
remanding for further proceeding tort claim in district court for retaliatory
discharge for filing workers’ compensation claim); Muller v. Tri-State
Ins. Co., 252 Neb. 1, 560 N.W.2d 130 (1997) (exclusivity did not
apply to claim under employer’s underinsured motorist coverage even
though plaintiff widow received compensation from employer’s workers’
compensation carrier for death from automobile accident).
38
Pittman v. Western Engineering Co., supra note 24.
39
Id. at 928, 813 N.W.2d at 498.
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In Bennett v. Saint Elizabeth Health Sys., 40 we held that the
plaintiff’s medical malpractice action was barred by the exclu-
sivity provisions of the Nebraska Workers’ Compensation Act
when she sought to recover for aggravation of an injury that
arose out of and in the course of her employment at a hospital,
which aggravation was allegedly caused by the same hospital
when it negligently performed physical therapy treatment of
the original injury. There was no dispute that the plaintiff was
entitled to workers’ compensation benefits for both the original
injury and the injury sustained during physical therapy, and we
observed there was no inference in the record that the plain-
tiff’s physical therapy was an unnecessary or unreasonable
treatment for her initial injury. We reasoned that because the
plaintiff would not have undertaken the physical therapy “but
for” the original compensable injury to that shoulder, the con-
sequential injury to the left shoulder was related to her employ-
ment, and therefore, it was a covered injury under the Nebraska
Workers’ Compensation Act. 41
We similarly held in Ihm v. Crawford & Co. 42 that an action
in district court to recover for additional injuries caused by a
bad faith delay in providing authorization for treatment was
barred by the exclusivity provisions of the Nebraska Workers’
Compensation Act, disagreeing with the plaintiff’s argument
that the injuries caused by the subsequent intentional tort did
not arise out of his work-related injury. We explained that the
alleged tortious acts were “completely intertwined with the
original injury”:
While the alleged tortious conduct of the appellees, in
refusing to timely authorize needed medical treatment,
may have come after the original injury, the conduct was
not independent of the injury. Rather, the alleged tortious
acts of the appellees were completely intertwined with
40
Bennett v. Saint Elizabeth Health Sys., supra note 27.
41
Id. at 307, 729 N.W.2d at 85.
42
Ihm v. Crawford & Co., supra note 29.
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the original injury, as their acts related directly to an
alleged bad faith delay in authorization of further treat-
ment for the original injury. 43
We observed that the penalties under the act for such bad
faith were limited to attorney fees and thus provided little
deterrence to the bad faith handling of claims; still, it was the
province of the Legislature, not this court, to strengthen the
deterrent effect of administrative penalties within the act as
public policy may dictate. 44
Arising From Such Injury
The statutory scheme dictates that Dutcher and the
Department agreed to be subject to the Nebraska Workers’
Compensation Act. The Department is “such employer” for
purposes of the release provision in § 48-148. There is no
dispute that Dutcher’s knee injury and associated restrictions
for which Dutcher received workers’ compensation benefits—
and which restrictions were the stated reasons the Department
concluded she was unable to fulfill the regular duties of her
position—were the result of an accident arising out of and in
the course of her employment. Dutcher was given vocational
rehabilitation for that injury, which she was eligible for under
§ 48-162.01(3), by being “unable to perform suitable work
for which he or she has previous training or experience,”
as a result of the injury. The question is whether, under the
facts of this case, Dutcher’s discrimination action in district
court under the NFEPA was a claim for compensation “aris-
ing from such injury,” 45 which would constitute “any other
method, form, or amount of compensation or determination [of
compensation].” 46
Dutcher points out there is case law in other jurisdic-
tions holding that the exclusivity provisions of the governing
43
Id. at 826, 580 N.W.2d at 120.
44
Ihm v. Crawford & Co., supra note 29.
45
§ 48-148.
46
§ 48-111.
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workers’ compensation laws do not bar discrimination actions
based on a disability stemming from the personal injury for
which workers’ compensation benefits were obtained. 47 Those
courts reason that statutes barring discrimination provide a
remedy for “intangible injuries which rob a person of dignity
and self-esteem and with eliminating a discriminatory environ-
ment in the workplace that affects not only the victim of dis-
crimination but the entire workforce and the public welfare.” 48
47
See, Mangin v. Westco Security Systems, Inc., 922 F. Supp. 563 (M.D. Fla.
1996); Davis v. Dillmeier Enterprises, Inc., 330 Ark. 545, 956 S.W.2d
155 (1997) (remedies granted to employee on account of injury); City
of Moorpark v. Superior Court, 18 Cal. 4th 1143, 959 P.2d 752, 77 Cal.
Rptr. 2d 445 (1998) (plain language of exclusive remedy provisions of
workers’ compensation law apparently limits those provisions to division
of labor code remedies); Hardaway Management Co. v. Southerland,
977 S.W.2d 910 (Ky. 1998); Daniel v. City of Minneapolis, 923 N.W.2d
637 (Minn. 2019) (on account of such injury); Folan v. State/DCYF, 723
A.2d 287 (R.I. 1999) (right to compensation for injury under chapters
of compensation act, and remedy for injury granted by those chapters,
shall be in lieu of all rights and remedies as to that injury); Gallipo v.
City of Rutland, 173 Vt. 223, 789 A.2d 942 (2001); Messer v. Huntington
Anesthesia Group, Inc., 218 W. Va. 4, 620 S.E.2d 144 (2005) (not
liable to respond in damages at common law or by statute for injury
or death of any employee, however occurring, but injuries caused by
employer’s deliberate intention exempted from workers’ compensation
act); Byers v. Labor and Industry Review Com’n, 208 Wis. 2d 388, 561
N.W.2d 678 (1997) (where such conditions for employer’s liability under
workers’ compensation act exist, right to recovery of compensation shall
be exclusive remedy against employer). See, also, Whitson v. City of
Hoover, 14 So. 3d 98 (Ala. 2009) (age discrimination claim); Claxton
v. Waters, 34 Cal. 4th 367, 96 P.3d 496, 18 Cal. Rptr. 3d 246 (2004)
(sexual harassment); Byrd v. Richardson-Greenshields-Securities, 552 So.
2d 1099 (Fla. 1989) (sexual harassment); Meyers v. Chapman Printing
Co., Inc., 840 S.W.2d 814 (Ky. 1992) (sex discrimination); Cox v.
Glazer Steel Corp., 606 So. 2d 518 (La. 1992) (workers’ compensation
act specifically provides that it does not bar other statutory causes of
action); King v. Bangor Federal Credit Union, 568 A.2d 507 (Me. 1989);
Gunn v. Consolidated Rural Water & Sewer, 839 P.2d 1345 (Okla. 1992)
(retaliatory discharge).
48
Byers v. Labor and Industry Review Com’n, supra note 47, 208 Wis. 2d at
397, 561 N.W.2d at 681-82.
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The court in Daniel v. City of Minneapolis 49 reasoned that
those intangible harms are not “such injury” referred to in
the workers’ compensation laws, which is limited to personal
injury within the coverage of the workers’ compensation acts.
Further, nothing in the civil rights laws of that state indicate
“the Legislature intended an employee’s civil right to be free
from discrimination to hinge on where, when, or how the dis-
ability arose.” 50
But the workers’ compensation statutes relevant to cases
from other jurisdictions rejecting workers’ compensation
exclusivity, vis-a-vis civil rights actions, generally lack the
same “arising from” language found in the Nebraska Workers’
Compensation Act. Nor do the workers’ compensation statutes
in those jurisdictions always include injuries stemming from
an employer’s intentional wrongdoing, 51 as does the Nebraska
Workers’ Compensation Act.
Further, dissenting opinions in those cases point out that
the workers’ compensation laws already provide a remedy for
the refusal to return an injured employee to suitable work and
that even if civil rights laws were meant to remedy different
injuries, the workers’ compensation laws plainly and explicitly
provide that such remedy is exclusive. 52 They also point out
that the quid pro quo balance to be struck is a matter of public
policy; the remedy for any harshness resultant from the rule of
exclusiveness is wholly legislative. 53 Finally, it has been said
that allowing both civil rights actions and workers’ com-
pensation actions to coexist implicates double recovery and
“likely will result in a proliferation of failure-to-accommodate
49
See, e.g., Daniel v. City of Minneapolis, supra note 47.
50
Id. at 650.
51
See Messer v. Huntington Anesthesia Group, Inc., supra note 47.
52
Davis v. Dillmeier Enterprises, Inc., supra note 47 (Newbern, J., dissent
ing). See, also, Daniel v. City of Minneapolis, supra note 47 (Anderson, J.,
dissenting).
53
Daniel v. City of Minneapolis, supra note 47 (Anderson, J., dissenting).
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litigation over workplace injuries” 54—matters that, again, are
best left with the Legislature.
As discussed, we have consistently rejected arguments that
a civil claim in district court did not arise from the workplace
injury, because it stemmed from intentional conduct or because
the nature of the damages incurred were mental rather than
physical. Under the Nebraska Workers’ Compensation Act, the
employee gives up the right to complete compensation.
We have described “arising from” under § 48-148 as “but
for” causation. We said in Pittman v. Western Engineering Co. 55
that “arising from” refers to a “rational nexus.” In other con-
texts, we have understood phrases with “arising” or similar as
referring to “but for” causation, with some caveats. With respect
to “arising out of” employment under § 48-101, we have held
that the test is whether the act is “reasonably incident thereto,
or is so substantial a deviation as to constitute a break in the
employment which creates a formidable independent hazard.” 56
In the context of liability policies, we have interpreted the term
“arising out of” as “ordinarily understood to mean originating
from, growing out of, or flowing from; and requiring only a
‘but for’ causal connection.” 57 In the context of an exemp-
tion to the waiver of sovereign immunity for claims “arising
out of” certain listed intentional torts, we have described the
exemption as applicable under “but for” causation, whenever
the claim stems from, arises out of, is inextricably linked to, is
essential to, and would not exist without one of the underlying
intentional torts—though we have acknowledged there could
be circumstances “‘so attenuated’” from the listed intentional
tort that the claim would not fairly be characterized as arising
54
Id. at 658.
55
Pittman v. Western Engineering Co., supra note 24.
56
Misek v. CNG Financial, 265 Neb. 837, 842, 660 N.W.2d 495, 500 (2003)
(internal quotation marks omitted).
57
See Federated Serv. Ins. Co. v. Alliance Constr., 282 Neb. 638, 649-50,
805 N.W.2d 468, 478 (2011).
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out of it. 58 The Court of Appeals in Hammond v. Nemaha Cty. 59
utilized, in the context of Neb. Rev. Stat. § 81-8,219 (Reissue
1996), Black’s Law Dictionary’s definition of “arise” as “[t]o
spring up, originate, to come into being,” as well as another
court’s explanation that “arising out of” means “causally con-
nected with, not proximately caused by, and that a but for
causation, that is, a cause and result relationship, is enough.” 60
The exclusivity provisions of the Nebraska Workers’
Compensation Act are broadly worded. At the same time,
the NFEPA is silent on its application respecting disabilities
stemming from workplace injuries covered by the Nebraska
Workers’ Compensation Act. Especially in light of our articula-
tion of the broad meaning of similar language, the Legislature
had the ability to clearly exclude from the exclusivity provi-
sions of the Nebraska Workers’ Compensation Act claims like
the case at bar. Yet, it did not do so.
We hold that for purposes of § 48-148, Dutcher’s claimed
discrimination under the NFEPA was a claim “arising from”
the knee injury that was caused by an accident arising out of
and in the course of her employment and, thus, “such injury.”
Therefore, she cannot obtain additional remedies through a
civil action in district court under the NFEPA.
Nothing in this opinion should be interpreted as restrict-
ing an employee’s ability to file a charge with the Equal
Opportunity Commission. And we do not suggest that dis-
crimination is a rational or a logical result of having a per-
sonal injury. However, in this case, there is a sufficient nexus
between the injury Dutcher was given workers’ compensation
for and her civil action under the NFEPA such that the NFEPA
action arose from her workplace injury.
58
See Dion v. City of Omaha, 311 Neb. 522, 541, 973 N.W.2d 666, 682
(2022). Accord Edwards v. Douglas County, 308 Neb. 259, 953 N.W.2d
744 (2021).
59
Hammond v. Nemaha Cty., 7 Neb. App. 124, 581 N.W.2d 82 (1998).
60
Id. at 129, 581 N.W.2d at 87 (internal quotation marks omitted).
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Cite as 312 Neb. 405
Whether there hypothetically may be circumstances so atten-
uated from the work-related injury that a NFEPA claim against
that same employer would not fairly be characterized as aris-
ing from the work-related injury need not be determined here.
Dutcher, through disability payments and vocational rehabilita-
tion, was compensated under the quid quo pro system estab-
lished by the Legislature for the very inability to work that the
Department stated was the reason for firing her.
Regardless of whether that reason was pretextual as Dutcher
claims, the NFEPA claim arises from the personal injury
incurred within the course and scope of her employment with
the Department. To allow Dutcher additional relief in a civil
action in district court under the NFEPA would be to judicially
interfere with the quid pro quo determined by the Legislature
through the Nebraska Workers’ Compensation Act.
Changes in the workers’ compensation laws, and in the pub-
lic policies recognized in those laws, must emanate from the
lawmaking power of the Legislature and not from the courts. 61
If the Legislature determines victims of employer discrimina-
tion on the basis of disabilities caused by injuries covered by
workers’ compensation with that same employer should have
the additional remedies of a civil action under the NFEPA, it
can pass an amendment plainly so providing.
CONCLUSION
Viewing the evidence in a light most favorable to Dutcher
and giving her the benefit of all reasonable inferences deduc-
ible from the evidence presented at the summary judgment
hearing, because of the exclusivity provisions of the Nebraska
Workers’ Compensation Act, we determine the district court
lacked jurisdiction over Dutcher’s NFEPA action. We affirm
the judgment of the district court granting summary judgment
in favor of the Department.
Affirmed.
61
Estate of Teague v. Crossroads Co-op Assn., supra note 6. | 01-04-2023 | 11-18-2022 |
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11/18/2022 09:06 AM CST
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MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
Cite as 312 Neb. 341
Mid America Agri Products/Wheatland
Industries LLC, appellant, v.
Perkins County Board of
Equalization, appellee.
___ N.W.2d ___
Filed August 26, 2022. No. S-21-944.
1. Taxation: Judgments: Appeal and Error. Appellate courts review
decisions rendered by the Tax Equalization and Review Commission for
errors appearing on the record.
2. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, an appellate court’s inquiry is whether the deci-
sion conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable.
3. Taxation: Appeal and Error. Questions of law arising during appellate
review of the Tax Equalization and Review Commission’s decisions are
reviewed de novo on the record.
4. Statutes. Statutory interpretation presents a question of law.
5. Administrative Law: Statutes. Agency regulations properly adopted
and filed with the Secretary of State of Nebraska have the effect of
statutory law.
6. Taxation: Property: Valuation: Statutes: Time: Dismissal and
Nonsuit. When a protest of property valuation is not timely filed on or
before June 30 as required under Neb. Rev. Stat. § 77-1502(1) (Reissue
2018), the county board of equalization lacks statutory authority to
review and decide the merits of the protest, and it does not have statu-
tory authority to do anything other than dismiss the protest.
7. Courts: Words and Phrases. A court generally does not read the use of
the terms “must” and “shall” as permissive rather than mandatory.
8. Taxation: Property: Valuation: Time: Appeal and Error. When a
county board of equalization lacks authority to review and decide a
protest of property valuation on the merits because the protest was not
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MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
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timely filed, the Tax Equalization and Review Commission likewise
lacks authority to review the merits of the protest.
Appeal from the Tax Equalization and Review Commission.
Affirmed.
Frederick D. Stehlik and Zachary W. Lutz-Priefert, of Gross,
Welch, Marks & Clare, P.C., L.L.O., for appellant.
Timothy L. Moll, of Rembolt Ludtke, L.L.P., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Miller-Lerman, J.
NATURE OF CASE
The Perkins County Board of Equalization (the Board) dis-
missed the 2021 property valuation protest of Mid America
Agri Products/Wheatland Industries LLC (Wheatland) because
it was not timely filed. The Tax Equalization and Review
Commission (TERC) affirmed the dismissal. Wheatland
appeals. Wheatland argues that the statutory deadline for
filing a protest may be waived by a board of equalization
and that the Board waived the deadline in this case because
it allegedly accepted the protest and heard argument on the
merits of the protest. We affirm TERC’s order which affirmed
the dismissal.
STATEMENT OF FACTS
Wheatland owns a parcel of real estate in Perkins County.
The Perkins County assessor changed the valuation of the
property for the 2018 tax year and again for the 2019 tax year,
and each of these years the assessor sent Wheatland a notice
of valuation change. Wheatland filed timely protests to the
valuations for both 2018 and 2019. The valuation for the 2019
tax year was $13,385,246.
For the 2020 tax year, the assessor did not change the valu-
ation of the property and therefore did not send Wheatland a
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MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
Cite as 312 Neb. 341
notice of valuation change. However, Wheatland filed a timely
protest to the 2020 valuation. The Board denied Wheatland’s
protests for the 2018, 2019, and 2020 tax years. Wheatland
appealed the denials to TERC, and those appeals were still
pending at the time of the dismissal of the 2021 protest at
issue in this appeal.
For the 2021 tax year, the assessor again maintained the
valuation of Wheatland’s property from 2019 and 2020. The
assessor therefore did not send a notice of valuation change.
On July 1, 2021, Wheatland’s attorney hand delivered a prop-
erty valuation protest form to the Perkins County clerk. The
clerk received the protest on that date, but on July 2, the clerk
sent a letter to Wheatland informing it that it had missed the
June 30 deadline to file a protest and that therefore, the protest
would not be heard by the Board. The Board maintains that
the 2021 protest was automatically dismissed by operation
of law.
Notwithstanding the clerk’s letter, Wheatland’s attorney
attended the July 19, 2021, meeting of the Board. Wheatland
asserts that despite claiming that its protest was not timely,
the Board discussed Wheatland’s protest of the 2021 valua-
tion at the July 19 meeting. To the contrary, the Board asserts
that it did not discuss the 2021 valuation, but, instead, that
it discussed a TERC hearing that had been held on July
12 concerning Wheatland’s appeals of the 2018, 2019, and
2020 valuations.
Wheatland appealed to TERC and claimed that the asses-
sor’s failure to give notice prevented Wheatland from timely
filing its protest. TERC thereafter entered an order to show
cause and notice of hearing in which it ordered that a “hear-
ing must be held to determine whether [TERC] has jurisdic-
tion over this matter.” TERC set a hearing date and stated
that the hearing would only address the jurisdictional issue
and that a separate hearing on the valuation of the property
would be scheduled at a later date if TERC determined it
had jurisdiction.
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MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
Cite as 312 Neb. 341
After the hearing, TERC filed an “Order for Dismissal” on
October 27, 2021. TERC began its analysis by citing Neb.
Rev. Stat. § 77-5013(1) (Reissue 2018), which provides the
requirements for TERC to obtain exclusive jurisdiction over an
appeal. TERC further stated it could not “acquire jurisdiction
over an issue if the body from which the appeal is taken had no
jurisdiction of the subject matter.”
Turning to the timeliness of Wheatland’s protest, TERC
rejected Wheatland’s contention to the effect that it could not
timely file its protest because the assessor failed to provide
notice of the 2021 valuation. TERC stated that the assessor
was not required to send Wheatland a notice for the tax year
2021 because the assessed valuation of Wheatland’s property
was not changed from the prior year. See Neb. Rev. Stat.
§ 77-1315(2) (Reissue 2018).
TERC stated that a statutory remedy existed to challenge a
property’s assessment, and it cited Neb. Rev. Stat. § 77-1502(1)
(Reissue 2018), which provides that “[p]rotests regarding real
property shall be signed and filed . . . on or before June 30.”
TERC also noted 350 Neb. Admin. Code, ch. 10, § 003.03A
(2014), which provides in part that “[i]f the protest is not
timely filed, it will automatically be dismissed.”
In its order, TERC stated that Wheatland did not file its
protest on or before June 30, 2021, and that Wheatland did
not dispute that its filing on July 1 was late. TERC noted that
Wheatland nevertheless argued that the Board “waived any
issues concerning the timeliness of the protest by ‘accepting’
the protest.” Wheatland asserted that the Board accepted the
protest when the clerk received the protest that its attorney had
hand delivered on July 1 and told the attorney the date that
the Board would hold a hearing on protests. Wheatland also
asserted that the Board discussed Wheatland’s protest at the
July 19 hearing. TERC noted in its order that witnesses dis-
agreed as to whether Wheatland’s protest of the 2021 valuation
was discussed at the Board’s hearing and that two members
of the Board attested they had discussed Wheatland’s appeals
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MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
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of the 2018, 2019, and 2020 valuations but had not discussed
the 2021 valuation. TERC stated that a preponderance of the
evidence did not support a finding that the Board had con-
sidered Wheatland’s protest of the 2021 valuation. But TERC
determined that whether or not the Board had considered the
protest, TERC consistently applied the rule that subject matter
jurisdiction may not be created by waiver, estoppel, consent,
or conduct of the parties. TERC further stated that equitable
estoppel was not normally applied in administrative proceed-
ings, that TERC did not have equitable power, and that even if
it had equitable power, the statutes regarding protests provided
an adequate remedy at law.
In its order, TERC concluded that the Board correctly dis-
missed Wheatland’s protest because the protest was not timely
filed. TERC cited Village at North Platte v. Lincoln Cty. Bd. of
Equal., 292 Neb. 533, 873 N.W.2d 201 (2016), for the proposi-
tion that when a statute requires a county board of equalization
to dismiss a protest, the county board does not have authority
to do anything except dismiss the protest. TERC further stated
that “[w]hen a county board correctly dismisses a protest
because it lacked statutory authority to hear the protest on the
merits, [TERC] should decline to reach the merits of the appeal
and affirm the dismissal of the county board.” TERC therefore
affirmed the Board’s dismissal of the protest and dismissed
Wheatland’s appeal with prejudice.
Wheatland appeals TERC’s order.
ASSIGNMENT OF ERROR
Wheatland claims, restated, that TERC erred when it
affirmed the Board’s dismissal of Wheatland’s protest because
the 2021 protest had not been timely filed.
STANDARDS OF REVIEW
[1,2] Appellate courts review decisions rendered by TERC
for errors appearing on the record. Betty L. Green Living Trust
v. Morrill Cty. Bd. of Equal., 299 Neb. 933, 911 N.W.2d 551
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(2018). When reviewing a judgment for errors appearing on
the record, an appellate court’s inquiry is whether the decision
conforms to the law, is supported by competent evidence, and
is neither arbitrary, capricious, nor unreasonable. Id.
[3,4] Questions of law arising during appellate review of
TERC’s decisions are reviewed de novo on the record. Id.
Statutory interpretation presents a question of law. County of
Webster v. Nebraska Tax Equal. & Rev. Comm., 296 Neb. 751,
896 N.W.2d 887 (2017).
ANALYSIS
Wheatland claims that TERC erred when it affirmed the
Board’s dismissal of Wheatland’s protest because the filing
of the protest was late. Wheatland argues that its filing of the
protest on July 1, 2021, did not deprive the Board of authority
to consider the protest because the June 30 deadline set forth
in § 77-1502(1) is merely “an administrative timeline which
an administrative agency has the ability to waive.” Brief for
appellant at 9. Wheatland further argues that the Board waived
the June 30 requirement, because it accepted the protest and
heard argument on the protest, and that therefore, TERC had
jurisdiction to review the valuation on its merits. We disagree
with Wheatland’s contention that the June 30 requirement may
be waived, and we conclude that because the Board did not
err when it dismissed the protest, TERC did not err when it
affirmed the dismissal.
In its order, TERC relied largely on Village at North Platte
v. Lincoln Cty. Bd. of Equal., 292 Neb. 533, 873 N.W.2d 201
(2016). In Village at North Platte, the taxpayer filed a protest
that did not meet a requirement of § 77-1502(2) because it
did not include “a statement of the reason or reasons why the
requested change [in valuation] should be made.” We noted
that § 77-1502(2) provided that if a protest failed to “contain
or have attached the statement of the reason or reasons for the
protest . . . the protest shall be dismissed by the county board
of equalization.” We determined in Village at North Platte
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MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
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that because the taxpayer failed to include a statement of
reason or reasons, the board in that case “did not have [statu-
tory] authority to do anything other than dismiss the protest.”
292 Neb. at 540, 873 N.W.2d at 206. We further reasoned in
Village at North Platte that because the board “lacked author-
ity to hear the taxpayer’s . . . protest on the merits of the
valuation, TERC likewise lacked authority to do so.” 292 Neb.
at 541, 873 N.W.2d at 207. We concluded that the board in
Village at North Platte “lacked statutory authority to take any
other action” than to dismiss the protest and that therefore,
TERC “correctly declined to reach the merits of the appeal
regarding the property’s value.” 292 Neb. at 542, 873 N.W.2d
at 208.
[5] In the present case, Wheatland failed to meet the require-
ment in § 77-1502(1) that a protest “regarding real property
shall be signed and filed . . . on or before June 30.” Unlike
§ 77-1502(2) with regard to the required statement of reason or
reasons at issue in Village at North Platte, § 77-1502(1) does
not specifically state that a protest that fails to meet the June
30 filing requirement must be dismissed by the county board of
equalization. However, as TERC noted in its order, the applica-
ble regulation, § 003.03A, provides in part that “[i]f the protest
is not timely filed, it will automatically be dismissed.” Agency
regulations properly adopted and filed with the Secretary of
State of Nebraska have the effect of statutory law. Ash Grove
Cement Co. v. Nebraska Dept. of Rev., 306 Neb. 947, 947
N.W.2d 731 (2020).
[6] We determine that our reasoning in Village at North
Platte regarding the statutory requirements in § 77-1502
logically applies to the statutory requirement that a protest
must be filed on or before June 30. Section 77-1502 pro-
vides the statutory authority for a county board of equaliza-
tion to review and decide protests, and the requirements of
the statute must be met in order for a board to exercise that
authority. Section 77-1502 requires that a protest must be
filed on or before June 30 in order for a board to exercise the
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authority. Furthermore, the applicable regulation, § 003.03A,
specifically provides that a protest that is not timely filed will
“automatically be dismissed.” Therefore, when a protest of
property valuation is not timely filed on or before June 30,
the county board of equalization lacks statutory authority to
review and decide the merits of the protest, and it does not
have statutory authority to do anything other than dismiss
the protest.
Wheatland argues in this case that the Board could, and did,
waive the June 30 requirement when it allegedly accepted the
protest and heard argument on the protest. We note that TERC
stated that the preponderance of the evidence did not support
Wheatland’s assertion that the Board heard argument on the
protest; instead, two Board members attested that the Board
discussed Wheatland’s appeals to TERC of prior years’ valua-
tions but did not discuss the protest of the 2021 valuation. With
regard to Wheatland’s assertion that the Board accepted the
protest, we note that after receiving the protest from Wheatland
on July 1, the clerk sent a letter the next day stating that the
protest was late and would not be heard.
[7] TERC found that the Board did not “waive” the filing
deadline, and such filing is supported by the record. However,
whether or not the Board attempted to waive the June 30
requirement in this case, the Board did not have authority to
do so. Wheatland argues that “shall” as used in § 77-1502(1)
indicates merely a directory, rather than a mandatory, require-
ment and that as such, the requirement may be waived. We
disagree. We have stated that we generally do not read the use
of the terms “must” and “shall” as permissive rather than man-
datory. See, Williams v. Williams, 311 Neb. 772, 975 N.W.2d
523 (2022); Karo v. NAU Country Ins. Co., 297 Neb. 798, 901
N.W.2d 689 (2017). The requirement in § 77-1502(1) that the
protest “shall” be filed on or before June 30 is mandatory,
and timely filing is required in order to give the Board statu-
tory authority to consider a protest. The mandatory nature of
this requirement is bolstered by the regulation, § 003.03A,
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requiring that if the protest is not timely filed, the protest is
automatically dismissed.
[8] Because the Board was required to dismiss the pro-
test, we determine that it was proper for TERC to affirm
the Board’s dismissal of Wheatland’s protest. Similar to our
reasoning in Village at North Platte v. Lincoln Cty. Bd. of
Equal., 292 Neb. 533, 873 N.W.2d 201 (2016), we conclude
that when a county board of equalization lacks authority to
review and decide a protest of property valuation on the mer-
its because the protest was not timely filed, TERC likewise
lacks authority to review the merits of the protest. Because a
county board of equalization lacks statutory authority to take
any other action than to dismiss a protest that is not timely
filed, TERC, as it did in this case, should decline to reach the
merits of the appeal of a proper dismissal and instead should
affirm the dismissal.
Although we read TERC’s order as affirming the Board’s
dismissal of the protest, there is language in TERC’s order
referring to “jurisdiction” and stating that the appeal must be
dismissed for lack of jurisdiction. We noted similar references
to jurisdiction in Village at North Platte; we recognized that
TERC’s jurisdiction over an appeal is derived from § 77-5013,
which we described as providing that
TERC obtains exclusive jurisdiction over an appeal when:
(1) TERC has the power or authority to hear the appeal;
(2) the appeal is timely filed; (3) the filing fee, if applica-
ble, is timely received and thereafter paid; and (4) a copy
of the decision, order, determination, or action appealed
from, . . . is timely filed.
292 Neb. at 540, 873 N.W.2d at 206-07. We further observed
in Village at North Platte that § 77-5013(1) provides that
“‘[o]nly the requirements of this subsection shall be deemed
jurisdictional’” and that TERC “has the power and duty to hear
and determine appeals of any decision of any county board of
equalization” so long as jurisdictional requirements are met.
292 Neb. at 540, 873 N.W.2d at 207. See, similarly, Karo v.
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NAU Country Ins. Co., 297 Neb. at 810, 901 N.W.2d at 697,
698 (noting distinction between “jurisdictional” and “‘claim-
processing rules’”).
In Village at North Platte, we acknowledged the proposi-
tion that if the court from which an appeal was taken lacked
jurisdiction, then the appellate court acquires no jurisdiction,
and we determined that a “comparable rule” was applicable
with regard to appeals to TERC from decisions of boards of
equalization. 292 Neb. at 541, 873 N.W.2d at 207. We stated
that when a board of equalization lacks authority to hear a
protest on the merits, TERC likewise lacks authority to do
so. In the present case, although it made references to “juris-
diction,” TERC properly recognized that because the Board
lacked statutory authority to review Wheatland’s protest on
the merits, TERC also lacked authority to review the merits
of the protest. TERC therefore properly affirmed the Board’s
dismissal of the protest.
CONCLUSION
The Board properly dismissed Wheatland’s protest of the
2021 property valuation because the protest was filed after the
statutory June 30 deadline, and we therefore affirm TERC’s
order which affirmed the Board’s dismissal of Wheatland’s
2021 protest.
Affirmed. | 01-04-2023 | 11-18-2022 |
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STATE V. LESSLEY
Cite as 312 Neb. 316
State of Nebraska, appellee, v.
Tyeric L. Lessley, appellant.
___ N.W.2d ___
Filed August 26, 2022. No. S-21-768.
1. Postconviction: Constitutional Law: Appeal and Error. In appeals
from postconviction proceedings, an appellate court reviews de novo
a determination that the defendant failed to allege sufficient facts to
demonstrate a violation of his or her constitutional rights or that the
record and files affirmatively show that the defendant is entitled to
no relief.
2. Postconviction: Judgments: Appeal and Error. Whether a claim raised
in a postconviction proceeding is procedurally barred is a question of
law. When reviewing a question of law, an appellate court reaches a
conclusion independent of the lower court’s ruling.
3. Appeal and Error. Alleged errors of the lower court must be both spe-
cifically assigned and specifically argued in the brief of the party assert-
ing the errors to be considered by an appellate court.
4. Postconviction: Constitutional Law: Judgments. Postconviction relief
is available to a prisoner in custody under sentence who seeks to be
released on the ground that there was a denial or infringement of his or
her constitutional rights such that the judgment was void or voidable.
5. Postconviction: Constitutional Law: Proof. In a motion for postcon-
viction relief, the defendant must allege facts which, if proved, consti-
tute a denial or violation of his or her rights under the U.S. or Nebraska
Constitution, causing the judgment against the defendant to be void
or voidable.
6. ____: ____: ____. The district court must grant an evidentiary hearing
to resolve the claims in a postconviction motion when the motion con-
tains factual allegations which, if proved, constitute an infringement of
the defendant’s rights under the state or federal Constitution.
7. Postconviction: Pleadings. The allegations in a motion for postconvic-
tion relief must be sufficiently specific for the district court to make
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a preliminary determination as to whether an evidentiary hearing is
justified.
8. Postconviction: Constitutional Law: Proof. An evidentiary hearing is
not required on a motion for postconviction relief when (1) the motion
does not contain factual allegations which, if proved, constitute an
infringement of the movant’s constitutional rights rendering the judg-
ment void or voidable; (2) the motion alleges only conclusions of fact or
law without supporting facts; or (3) the records and files affirmatively
show that the defendant is entitled to no relief.
9. Postconviction: Proof: Appeal and Error. When a district court denies
postconviction relief without conducting an evidentiary hearing, an
appellate court determines de novo whether the petitioner has alleged
facts that would support the claim and, if so, whether the files and
records affirmatively show that he or she is entitled to no relief.
10. Records: Appeal and Error. The appellate court will not scour the
record on appeal to understand unclear arguments or find support for
broad conclusions.
11. Appeal and Error. When an issue is raised for the first time in an
appellate court, it will be disregarded inasmuch as a lower court cannot
commit error in resolving an issue never presented and submitted to it
for disposition.
12. Trial: Appeal and Error. An issue not presented to or decided on by
the trial court is not an appropriate issue for consideration on appeal.
13. Postconviction. The need for finality in the criminal process requires
that a defendant bring all claims for relief at the first opportunity.
14. Postconviction: Appeal and Error. A motion for postconviction relief
cannot be used to secure review of issues that were known to the
defendant and which were or could have been litigated on direct
appeal.
15. Judgments: Claim Preclusion. Claim preclusion bars litigation of any
claim that has been directly addressed or necessarily included in a for-
mer adjudication, as long as (1) the former judgment was rendered by
a court of competent jurisdiction, (2) the former judgment was a final
judgment, (3) the former judgment was on the merits, and (4) the same
parties or their privies were involved in both actions.
16. Records: Appeal and Error. It is the appellant’s responsibility to
present a record that permits appellate review of the issue assigned
as error.
17. Postconviction: Appeal and Error. When the defendant is represented
both at trial and on direct appeal by the same counsel, the defendant’s
first opportunity to assert ineffective assistance of trial counsel is in a
motion for postconviction relief.
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18. Effectiveness of Counsel: Proof. To prevail on a claim of ineffective
assistance of counsel under Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant must show that his
or her counsel’s performance was deficient and that this deficient per
formance actually prejudiced the defendant’s defense.
19. ____: ____. To show that counsel’s performance was deficient, the
defendant must show counsel’s performance did not equal that of a
lawyer with ordinary training and skill in criminal law. To show preju-
dice under the prejudice component of the Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant
must demonstrate a reasonable probability that but for his or her coun-
sel’s deficient performance, the result of the proceeding would have
been different.
20. ____: ____. A reasonable probability does not require that it be more
likely than not that the deficient performance altered the outcome of the
case; rather, the defendant must show a probability sufficient to under-
mine confidence in the outcome. The likelihood of a different result
must be substantial, not just conceivable.
21. Effectiveness of Counsel: Presumptions: Proof. The two prongs of the
test under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984), may be addressed in either order, and the entire
ineffectiveness analysis should be viewed with a strong presumption that
counsel’s actions were reasonable.
22. Postconviction. In a motion for postconviction relief, a defendant is
required to specifically allege what the testimony of potential witnesses
would have been if they had been called at trial in order to avoid dis-
missal without an evidentiary hearing.
23. ____. Absent specific allegations, a motion for postconviction relief
effectively becomes a discovery motion to determine whether evidence
favorable to a defendant’s position actually exists.
24. Trial: Constitutional Law: Testimony: Attorney and Client: Waiver.
A defendant has a fundamental constitutional right to testify, and the
right to testify is personal to the defendant and cannot be waived by
defense counsel’s acting alone.
25. Trial: Attorney and Client: Testimony. Defense counsel bears the pri-
mary responsibility for advising a defendant of his or her right to testify
or not to testify, of the strategic implications of each choice, and that the
choice is ultimately for the defendant to make.
26. Trial: Attorney and Client: Effectiveness of Counsel: Testimony:
Waiver. Defense counsel’s advice to waive the right to testify can pre
sent a valid claim of ineffective assistance of counsel in two instances:
(1) if the defendant shows that counsel interfered with his or her
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freedom to decide to testify or (2) if counsel’s tactical advice to waive
the right was unreasonable.
27. Postconviction: Effectiveness of Counsel: Testimony: Proof. In a
postconviction action, when a defendant raises a claim of ineffective
assistance of trial counsel related to counsel’s failure with regard to
advising the defendant on his or her right to testify, an appellate court
subjects the claim to the Strickland v. Washington, 466 U.S. 668, 104 S.
Ct. 2052, 80 L. Ed. 2d 674 (1984), standard and requires the defendant
to show how trial counsel’s alleged deficient performance prejudiced
the defense.
28. Postconviction: Appeal and Error. In an appeal from the denial of
postconviction relief, an appellate court will not consider for the first
time on appeal claims that were not raised in the verified motion.
Appeal from the District Court for Douglas County: Marlon
A. Polk, Judge. Affirmed.
Tyeric L. Lessley, pro se.
Douglas J. Peterson, Attorney General, and Erin E. Tangeman
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
I. INTRODUCTION
The defendant challenges the district court’s denial of his
motion for postconviction relief without holding an evidentiary
hearing. The defendant alleged in the motion multiple errors
committed by the trial court and multiple claims of ineffective
assistance of trial counsel. The district court found that each of
the allegations were either procedurally barred, insufficiently
alleged, or affirmatively refuted by the record. We affirm.
II. BACKGROUND
1. Convictions
Tyeric L. Lessley was charged with first degree murder
under alternative theories of premeditated murder or felony
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murder, in violation of Neb. Rev. Stat. § 28-303(1) and (2)
(Reissue 2016); two counts of use of a deadly weapon to com-
mit a felony, in violation of Neb. Rev. Stat. § 28-1205(1)(a)
and (c) (Reissue 2016); first degree assault, in violation of
Neb. Rev. Stat. § 28-308 (Reissue 2016); and possession of a
firearm by a prohibited person, in violation of Neb. Rev. Stat.
§ 28-1206(1)(a)(b) (Reissue 2016).
Lessley filed a motion to suppress all evidence obtained
from a cell phone search. After a hearing, the motion to sup-
press was denied. The district court held that Lessley waived
his right to speedy trial.
Before Lessley’s 5-day jury trial began, the State was
allowed to amend its information by interlineation to remove
the premeditated murder theory of proof with regard to the first
degree murder charge. At trial, the State pursued the remaining
theory of felony murder.
Further details may be found in this court’s opinion on
direct appeal, 1 but the evidence at trial generally showed as
follows:
(a) Events of October 29, 2016
Between 4 and 4:30 a.m. on October 29, 2016, Curtis
Goodwin was paying bills on his laptop computer in the home
shared with his fiance, Suzanne Pope, in Omaha, Nebraska,
while Pope was sleeping in a bed in the main floor living room
of the residence, which the couple used as their bedroom.
During this time, Goodwin left the home through the back
door to investigate a knocking sound he heard at the front of
the house. Goodwin testified that family and friends never used
the front door of the residence, but instead entered and exited
through the rear door.
Goodwin grabbed a baseball bat before leaving the house.
Goodwin then walked around to his front door, where he dis-
covered a man knocking on the door. Goodwin asked the man
if he could help him. The man pointed a gun in Goodwin’s face
1
State v. Lessley, 301 Neb. 734, 919 N.W.2d 884 (2018).
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and responded, “Yeah, n-----, I’m your worst mother f------
nightmare.” The man, whom Goodwin testified he did not rec-
ognize, then told Goodwin to go into the house.
The two walked around the side of the house to the back
entrance. Goodwin testified that at some point along the way,
he dropped the bat. Once inside, the man told Goodwin to
“give me all your money and your shit.” Goodwin woke Pope
to tell her that someone was there to rob them. According
to Goodwin, both he and Pope told the intruder they did not
have any money. At that point, the intruder shot Pope, took
Goodwin’s laptop, and shot Goodwin as Goodwin lunged
at him.
Goodwin was able to follow the intruder out of the house
and into the backyard, where Goodwin collapsed as the
intruder ran down the street carrying Goodwin’s laptop. At this
time, Goodwin noticed an unfamiliar dark-colored Chevrolet
Suburban or Tahoe parked in his driveway, which was located
in the backyard of the residence. Goodwin testified that this
vehicle had no license plates and described the back doors
as opening “like kitchen cabinets.” The intruder walked back
past Goodwin. By this time, Goodwin had retrieved the bat he
dropped earlier and swung it in the direction of the intruder.
Goodwin testified that he hit “something,” but did not know
if it was the intruder. The intruder then shot Goodwin again,
dropped the laptop, and drove away.
Pope was killed and Goodwin was injured in this incident.
Goodwin was in a coma for nearly 3 months and sustained the
loss of one of his kidneys, his spleen and gallbladder, and sev-
eral feet of his small intestine. Complications from his injuries
caused Goodwin to fall into a second coma, during which he
nearly died.
“Shotspotter” evidence corroborated the timing of the gun-
shots. Shotspotter is a technology utilized by the Omaha Police
Department to determine the location of gunshots based upon
sounds captured by microphones positioned in certain parts of
the city. Here, Shotspotter captured the sound of two gunshots
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at 4:30 and 4:31 a.m., 20 seconds apart, sounding from out-
side Goodwin and Pope’s residence. Neighbors also testified
they heard gunshots around that time.
In addition, neighbors witnessed a vehicle travel west from
the residence after they heard the gunshots. One neighbor
testified that she saw a dark blue, green, or black Suburban
or Tahoe. A second neighbor testified that he witnessed a
dark-colored Suburban or Tahoe with a loud exhaust, custom
wheels, and tinted windows, and that based upon his experi-
ence with vehicles, he estimated the vehicle was between a
1996 and 1999 model.
(b) DNA and Other Evidence
Goodwin’s laptop computer was found in the backyard near
the driveway. It had a partial shoeprint on its cover. A tread
expert testified that the shoeprint was consistent with a Nike
“Shox” tennis shoe.
Various items of evidence were also recovered from the
scene and tested. The State’s DNA expert testified that the
blood and baseball bat found at the scene were both swabbed
and tested. Each produced a statistical match to Lessley’s
DNA.
Law enforcement later determined that on October 12, 2016,
Lessley had purchased a 2001 green Chevrolet Suburban from
an Omaha dealership. That dealership had global positioning
system records placing the Suburban less than a mile southeast
of the Goodwin-Pope residence at 4:18 a.m. on October 29.
One of the investigating officers testified that it had taken him
about 2 minutes to drive from the residence to the location
noted in the global positioning system records.
Lessley was arrested in January 2017. At the time of arrest,
Lessley was wearing a pair of Nike Shox shoes, which were
consistent with the shoeprint found on the laptop computer.
Lessley’s Suburban was impounded at the time of his arrest.
The Suburban still had in-transit signs and no license plates.
It also had tinted windows, “barn-door” style rear doors, and
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a louder-than-stock exhaust. A search of Lessley’s residence
recovered custom aftermarket rims.
At the time of the shooting, Lessley and his girlfriend lived
a 3-minute drive northwest of the Goodwin-Pope residence.
Lessley’s girlfriend testified that Lessley returned from work
on October 28, 2016, between 11:45 p.m. and 12 a.m. She fell
asleep shortly after Lessley returned home and was awoken
before 5:30 a.m. by Lessley’s talking on the telephone. At
this time, Lessley’s girlfriend noticed a “hole” in the right
side of Lessley’s forehead that he did not have when he
came home from work. Lessley’s cell phone records show
that he was on the cell phone between 4:58 and 5:06 a.m. on
October 29.
The jury was instructed only on the felony murder theory
and was not instructed as to any other theory of first degree
murder, or as to any other degree of murder. Lessley did not
object to the instructions as given and did not offer any pro-
posed instructions.
The jury found Lessley guilty on all five counts. At the sen-
tencing hearing, the district court initially sentenced Lessley
to life imprisonment for first degree murder, 20 to 20 years’
imprisonment for first degree assault, 3 to 3 years’ imprison-
ment for possession of a deadly weapon by a prohibited per-
son, and 5 to 5 years’ imprisonment on both use of a deadly
weapon to commit a felony convictions. After counsel for the
State and for Lessley raised the issue of indeterminate sen-
tences, telling the district court that the sentences had to be
different, the district court amended its sentences for counts
II through V, where it added 1 day to the maximum term of
each sentence so the minimum and maximum terms would
not be the same. All sentences were ordered to be served
consecutively.
2. Direct Appeal and Resentencing
On direct appeal, Lessley, with trial counsel, assigned that
there was insufficient evidence to support his convictions
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and that the district court erred in not instructing the jury
on the lesser-included offense of manslaughter. This court
affirmed Lessley’s convictions and determined that the dis-
trict court did not err when it did not instruct the jury on
manslaughter. However, this court found plain error in the
sentences imposed for counts II through V. This court con-
cluded that the original sentences imposed for these convic-
tions were valid because the maximum term imposed by the
court (5 years and 3 years) was not greater than the maximum
term provided for by law (50 years) and the minimum term
was the minimum term provided for by law (5 years and 3
years), as set forth in Neb. Rev. Stat. § 29-2204(1)(b) (Reissue
2016). Therefore, this court vacated the modified sentences
and remanded the cause for resentencing in conformity with
the initial sentences of 5 to 5 years’ imprisonment for each
use conviction and 3 to 3 years’ imprisonment for the posses-
sion conviction.
3. Postconviction Proceedings
Lessley filed a timely motion for postconviction relief.
The motion alleged various claims of ineffective assistance of
counsel at trial and on direct appeal and numerous claims of
error by the trial court. Many claims made in Lessley’s post-
conviction motion have not been raised in his appeal.
Relevant to the issues being raised on appeal, Lessley
asserted in his postconviction motion that his trial counsel
was ineffective for (1) advising him to waive his speedy trial
rights, (2) failing to interview potential witnesses, (3) refus-
ing to allow Lessley to testify regarding an extramarital affair
he had with Pope and an altercation that ensued between him
and Goodwin, (4) failing to present readily available expert
testimony such as a serology expert, and (5) failing to object
to the State’s amendment of the first degree murder charge on
the first day of trial. Lessley further asserted that his appel-
late counsel was ineffective for failing to raise on appeal the
district court’s error in allowing the State to amend its infor-
mation on the first day of trial and his excessive sentences
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issue. Lessley also claimed the district court erred when rul-
ing on the motion to suppress and instructing the jury. Lessley
alleged his trial counsel was ineffective for failing to success-
fully pursue the motion to suppress and object to erroneous
jury instructions at trial and was ineffective on appeal for
failing to pursue those issues.
The district court entered a written order denying Lessley’s
motion for postconviction relief without an evidentiary hear-
ing, finding that each of the claims were either procedur-
ally barred, insufficiently alleged, or affirmatively refuted by
the record.
III. ASSIGNMENTS OF ERROR
Lessley assigns, consolidated and restated, that the district
court erred when it (1) denied his request for appointment
of postconviction counsel without a hearing, (2) denied his
motion for postconviction relief without allowing the State
to respond, and (3) denied his motion for postconviction
relief without an evidentiary hearing as being without merit
or procedurally barred. He also assigns that the district court
erred during the trial stage of his proceedings by (1) failing
to suppress evidence derived from an unlawful search warrant
and supporting affidavit, (2) failing to find the State’s use of
peremptory challenges to exclude jurors of a specific racial
class violated his rights to due process and equal protection,
(3) abusing its discretion by supporting a verdict that was
insufficient to support his conviction for first degree murder,
and (4) giving certain jury instructions.
IV. STANDARD OF REVIEW
[1] In appeals from postconviction proceedings, an appellate
court reviews de novo a determination that the defendant failed
to allege sufficient facts to demonstrate a violation of his or her
constitutional rights or that the record and files affirmatively
show that the defendant is entitled to no relief. 2
2
State v. Cullen, 311 Neb. 383, 972 N.W.2d 391 (2022).
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[2] Whether a claim raised in a postconviction proceeding
is procedurally barred is a question of law. 3 When reviewing a
question of law, an appellate court reaches a conclusion inde-
pendent of the lower court’s ruling. 4
[3] Alleged errors of the lower court must be both specifi-
cally assigned and specifically argued in the brief of the party
asserting the errors to be considered by an appellate court. 5
V. ANALYSIS
Lessley asserts on appeal, broadly, that the district court
erred in denying postconviction relief without first conducting
an evidentiary hearing and in determining that his claims are
without merit and are procedurally barred. More specifically,
Lessley asserts multiple errors by the trial court and multiple
claims of ineffective assistance of counsel.
Before addressing the specific claims of postconviction
relief that Lessley believes the court should have held an evi-
dentiary hearing on, we set forth the general legal principles
governing our analysis of appeals from the denial of postcon-
viction claims without an evidentiary hearing and dispose of
any claims Lessley raised that are procedurally barred or not
properly before us for appellate review.
[4-6] Postconviction relief is available to a prisoner in cus-
tody under sentence who seeks to be released on the ground
that there was a denial or infringement of his or her consti-
tutional rights such that the judgment was void or voidable.
Thus, in a motion for postconviction relief, the defendant must
allege facts which, if proved, constitute a denial or violation of
his or her rights under the U.S. or Nebraska Constitution, caus-
ing the judgment against the defendant to be void or voidable. 6
3
State v. Jaeger, 311 Neb. 69, 970 N.W.2d 751 (2022).
4
Id.
5
Id.
6
Cullen, supra note 2.
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The district court must grant an evidentiary hearing to resolve
the claims in a postconviction motion when the motion
contains factual allegations which, if proved, constitute an
infringement of the defendant’s rights under the state or fed-
eral Constitution. 7
[7,8] However, the allegations in a motion for postconvic-
tion relief must be sufficiently specific for the district court to
make a preliminary determination as to whether an evidentiary
hearing is justified. 8 An evidentiary hearing is not required on
a motion for postconviction relief when (1) the motion does
not contain factual allegations which, if proved, constitute an
infringement of the movant’s constitutional rights rendering
the judgment void or voidable; (2) the motion alleges only
conclusions of fact or law without supporting facts; or (3)
the records and files affirmatively show that the defendant is
entitled to no relief. 9
[9,10] When a district court denies postconviction relief
without conducting an evidentiary hearing, an appellate court
determines de novo whether the petitioner has alleged facts
that would support the claim and, if so, whether the files and
records affirmatively show that he or she is entitled to no
relief. 10 The appellate court does not conduct this review sua
sponte, however; as with all appeals, the alleged errors of the
lower court must be both specifically assigned and specifically
argued in the brief of the party asserting the errors to be con-
sidered by the appellate court. 11 The appellate court will not
scour the record on appeal to understand unclear arguments or
find support for broad conclusions. 12
7
Id.; Jaeger, supra note 3.
8
Jaeger, supra note 3.
9
Id.
10
Id.
11
Id.
12
Id.
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1. Claims Not Properly Brought
for Appellate Review
With these general principles in mind, this court notes that
Lessley assigns many errors on appeal that he does not spe-
cifically argue in his brief. Lessley assigns that the district
court erred in denying his request for appointment of counsel
without a hearing, failing to suppress evidence derived from
an unlawful search warrant and supporting affidavit, failing to
find the State’s use of peremptory challenges to exclude jurors
of a specific racial class violated his rights to due process and
equal protection, and supporting a verdict based on evidence
that was insufficient to support a conviction of Lessley as
guilty beyond a reasonable doubt for felony murder. These
errors were not specifically argued in Lessley’s appellate brief,
and we accordingly decline to consider these assignments in
this appeal.
[11,12] Other issues that are not properly before an appel-
late court for review are issues that are not preserved below.
A motion for postconviction relief must mirror the arguments
made in a party’s appellate brief because we have said that
when an issue is raised for the first time in an appellate court,
it will be disregarded inasmuch as a lower court cannot com-
mit error in resolving an issue never presented and submitted
to it for disposition. 13 Therefore, an issue not presented to or
decided on by the trial court is not an appropriate issue for
consideration on appeal. 14
Lessley asserts in one general statement in his brief that
“[t]rial counsel rendered ineffective assistance of counsel by
not making proper objections to evidence discovered in vio-
lation of [Lessley’s] 4th amendment right to be free from
unreasonable search and seizure.” 15 Lessley words this allega-
tion in his motion for postconviction relief as “[t]rial counsel
13
See State v. Nadeem, 284 Neb. 513, 822 N.W.2d 372 (2012).
14
State v. Lee, 304 Neb. 252, 934 N.W.2d 145 (2019).
15
Brief for appellant at 11.
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rendered ineffective assistance of counsel when said counsel
fumbled what should have been a successful motion to sup-
press evidence seized pursuant to the search warrant of his
home, cell phone[,] and the questioning of his minor daughter
. . . without a guard[ian] present at [the] interview.” These
allegations are different. One focuses on the pretrial motion to
suppress hearing, and the other focuses on trial counsel’s fail-
ure to object to the evidence received at trial after the motion
to suppress was denied.
Lessley also contends in his appellate brief that counsel was
ineffective because counsel failed to object to the court’s con-
tinued delay of pretrial proceedings and that this caused him
to unknowingly waive his speedy trial right. In contrast, in his
motion, Lessley alleged that trial counsel was ineffective for
advising him to waive his statutory right to speedy trial and
argued that if he had not done so, the prosecution would have
been pressed to move forward with trial with less than 30 days
on the speedy trial clock.
With both of these issues, Lessley is asserting for the first
time on appeal that trial counsel was ineffective for failing to
object during trial, but he raised different allegations in his
motion for postconviction relief. Since the district court was
not presented with these arguments, and thus did not decide
whether trial counsel was ineffective for failing to object, it is
inappropriate for this court to consider them on appeal.
2. Claims That Are Procedurally Barred
Lessley also assigns and argues errors that the district court
correctly determined are procedurally barred. Lessley contends
that the district court abused its discretion when it “meted out
an invalid indeterminate sentence by imposing a fix[ed] inde-
terminate sentence plus one day” and when it “failed and/or
neglected to adjudicate this claim on postconviction relief.” 16
Further, Lessley raises an issue with the jury instructions given
16
Id. at 13 and 14.
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at trial, asserting that the trial court improperly defined reason-
able doubt as a lower standard by which the State had to prove
him guilty and in giving an instruction regarding the elements
of “intent” because “[i]ntent is a mental element of the crime
of [f]irst degree [m]urder (felony) and assault in the [f]irst
[d]egree” and “[t]he trial court failed to give proper instruc-
tions of willful, knowingly, with specific intent to [commit] the
allege[d] crime, resulting in prejudice to [Lessley].” 17
On direct appeal, 18 Lessley contended that the district court
erred in not instructing the jury on the lesser-included offense
of manslaughter and that there was insufficient evidence to
support his convictions. The State raised the issue of Lessley’s
sentences. We affirmed Lessley’s convictions and determined
that it was not error for the district court to not instruct the
jury on manslaughter. We also determined that the district
court’s modifying Lessley’s sentences by adding 1 day to his
maximum sentences was an invalid modification because the
original sentences for the use and possession convictions were
valid. We remanded the cause for resentencing, directing the
district court to resentence Lessley according to the original
sentences imposed.
Lessley attempts to argue again that his sentences with 1
day added were invalid indeterminate sentences. Lessley’s
argument fails to take into account that these are no longer his
sentences based on our remand in his direct appeal. Further,
his motion attempts to argue that other jury instructions were
incorrect. Since we considered a different issue regarding the
instructions to the jury in his direct appeal, these issues should
have been known to Lessley and should have been raised on
his direct appeal. Therefore, we decline to consider these argu-
ments here.
[13-15] The need for finality in the criminal process
requires that a defendant bring all claims for relief at the first
17
Id. at 9.
18
Lessley, supra note 1.
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opportunity. 19 We have consistently said that a motion for post-
conviction relief cannot be used to secure review of issues that
were known to the defendant and which were or could have
been litigated on direct appeal. 20 To the extent these arguments
are being raised for the first time in relation to his motion for
postconviction relief, they have not been brought at the first
opportunity. To the extent these issues were raised and directly
addressed or necessarily decided in our decision on direct
appeal, they are barred by claim preclusion. Claim preclusion
bars litigation of any claim that has been directly addressed or
necessarily included in a former adjudication, as long as (1)
the former judgment was rendered by a court of competent
jurisdiction, (2) the former judgment was a final judgment, (3)
the former judgment was on the merits, and (4) the same par-
ties or their privies were involved in both actions. 21
3. Due Process
An issue that is properly before us and appropriate for
appellate review is Lessley’s contention that the district court
erred when it failed to allow the State the opportunity to
respond to his motion for postconviction relief before rul-
ing upon it. Lessley acknowledges that the petitioner has the
burden of pleading and proving the facts necessary to entitle
him to relief, but he argues that the State had the burden of
pleading grounds of preclusion and then the burden returns to
the petitioner to disprove the preclusion’s existence. He asserts
that because the State was “never given the opportunity to
respond,” the record was not complete for the district court to
make a factual finding. 22
Lessley’s motion for postconviction relief was filed on
February 3, 2020, and the district court’s order denying
19
State v. Jackson, 296 Neb. 31, 892 N.W.2d 67 (2017).
20
State v. Betancourt-Garcia, 310 Neb. 440, 967 N.W.2d 111 (2021).
21
State v. Marrs, 295 Neb. 399, 888 N.W.2d 721 (2016).
22
Brief for appellant at 7.
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Lessley’s motion was filed on September 1, 2021. Lessley
asserts in his brief that “[i]t has been the formal policy of the
Douglas County District Court judges to allow the State 60 to
90 days to respond to formal pleading of postconviction once
the court has had an opportunity to review the postconviction
pleading.” 23 While this may be true, the State had substantially
more time than 60 to 90 days to respond to Lessley’s motion
if it wished to.
The State was not required to respond to Lessley’s motion
for postconviction relief, and the district court was not in
error in failing to order the State to respond. Neb. Rev. Stat.
§ 29-3001(2) (Reissue 2016) states, in relevant part:
Unless the motion and the files and records of a case
show to the satisfaction of the court that the prisoner is
entitled to no relief, the court shall cause notice thereof to
be served on the county attorney, grant a prompt hearing
thereon, and determine the issues and make findings of
fact and conclusions of law with respect thereto.
In State v. Burries, 24 we declined to conclude that the State
has an obligation to raise issues concerning a postconvic-
tion action at a time prior to that mandated by the statute. In
Burries, the State had filed a motion to dismiss in response
to the defendant’s first motion for postconviction relief. The
defendant later filed a second amended motion for postcon-
viction relief and argued on appeal that when the State failed
to file a brief in response, the State effectively withdrew its
motion to dismiss and conceded that he was entitled to relief.
We acknowledged that though the State, through its county
attorneys, can, and often does, participate at earlier points in
the process, the State is only called upon to take action with
respect to a motion once it receives notice from the court. And,
under § 29-3001(2), that notice is only mandated once the court
determines that a prisoner is entitled to a hearing. Therefore,
23
Id. at 7-8.
24
State v. Burries, 310 Neb. 688, 969 N.W.2d 96 (2022).
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we declined to conclude that the State has an obligation prior
to the notice mandated through § 29-3001(2) to respond to a
petitioner’s motion for postconviction relief.
Similarly here, the district court determined that Lessley was
not entitled to an evidentiary hearing on any claim he raised
in his motion for postconviction relief. Therefore, the court
was never required to provide notice to the State to issue a
response, and the State was not obligated to provide a response
to Lessley’s motion. Thus, the district court did not err in rul-
ing on Lessley’s motion for postconviction relief without first
receiving a response from the State.
[16] To the extent Lessley argues the record was not com-
plete without the State’s response, we reiterate that it is the
appellant’s responsibility to present a record that permits appel-
late review of the issue assigned as error. 25 Therefore, Lessley
could not depend on any action from the State in order for the
record to be complete for the district court to make a decision
or for the appellate court to review its decision. The district
court’s decision regarding whether a motion for postconviction
relief is entitled to an evidentiary hearing is based solely on
the facts alleged in the petitioner’s motion and the files and
records of the case, which need not require a response from
the State. 26
4. Ineffective Assistance of Counsel
[17] Lessley’s remaining contentions are ineffective assist
ance of counsel claims. Generally, a motion for postconviction
relief cannot be used to secure review of issues that were or
could have been litigated on direct appeal. However, when, as
here, the defendant is represented both at trial and on direct
appeal by the same counsel, the defendant’s first opportunity to
assert ineffective assistance of trial counsel is in a motion for
postconviction relief. 27
25
State v. Lester, 295 Neb. 878, 898 N.W.2d 299 (2017).
26
See § 29-3001.
27
Jaeger, supra note 3.
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[18-21] To prevail on a claim of ineffective assistance of
counsel under Strickland v. Washington, 28 the defendant must
show that his or her counsel’s performance was deficient and
that this deficient performance actually prejudiced the defend
ant’s defense. 29 To show that counsel’s performance was defi-
cient, the defendant must show counsel’s performance did
not equal that of a lawyer with ordinary training and skill in
criminal law. To show prejudice under the prejudice compo-
nent of the Strickland test, the defendant must demonstrate a
reasonable probability that but for his or her counsel’s deficient
performance, the result of the proceeding would have been
different. A reasonable probability does not require that it be
more likely than not that the deficient performance altered the
outcome of the case; rather, the defendant must show a prob-
ability sufficient to undermine confidence in the outcome. The
likelihood of a different result must be substantial, not just
conceivable. 30 The two prongs of this test may be addressed
in either order, and the entire ineffectiveness analysis should
be viewed with a strong presumption that counsel’s actions
were reasonable. 31
Lessley asserts that trial counsel was ineffective when coun-
sel (1) failed to interview and investigate potential alibi wit-
nesses, (2) refused to allow him to testify, (3) did not make
readily available expert witnesses, and (4) failed to object to
the State’s amendment of the information. We will discuss each
of these claims individually.
(a) Failure to Investigate or
Interview Alibi Witnesses
Lessley argues that trial counsel was ineffective because
counsel failed to interview and investigate potential alibi
28
Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984).
29
State v. Stricklin, 300 Neb. 794, 916 N.W.2d 413 (2018).
30
Id.
31
Cullen, supra note 2.
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witnesses, such as Cordell Westbrook. Lessley asserts that
Westbrook would have given testimony that he was with
Lessley between 1:30 and 4:30 a.m. on October 29, 2016.
Lessley argues that “[h]ad counsel interviewed and investi-
gated . . . Westbrook as part of his trial investigation of the
facts of the case, compelling testimony likely would have been
given resulting in [Lessley’s] acquittal of aforemention[ed]
charge to which the jury found him guilty.” 32
In his motion for postconviction relief, Lessley added the
allegation that Westbrook would have testified that he observed
the “scar” on Lessley’s head at that time; however, we will
not consider this allegation in our analysis because it was not
alleged in Lessley’s brief. An appellate court considers errors
that are both specifically assigned and specifically argued in
the brief of the party asserting the error and will not read the
brief together with a motion for postconviction relief in order
to discern what the appellant’s complete argument is.
[22,23] A defendant is required to specifically allege what
the testimony of potential witnesses would have been if they
had been called at trial in order to avoid dismissal without an
evidentiary hearing. 33 Absent specific allegations, a motion for
postconviction relief effectively becomes a discovery motion to
determine whether evidence favorable to a defendant’s position
actually exists. 34
In State v. Munoz, 35 we determined the defendant’s allega-
tions regarding witness testimony did not warrant an eviden-
tiary hearing because they were insufficiently specific. In
Munoz, the defendant alleged in his motion for postconviction
relief that trial counsel was deficient in failing to depose or
interview certain named witnesses who had knowledge of his
whereabouts during the crime. The defendant claimed one
32
Brief for appellant at 11.
33
State v. Munoz, 309 Neb. 285, 959 N.W.2d 806 (2021).
34
Id.
35
Id.
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named witness’ testimony would have presented a rebuttable
presumption to the State’s theory of how he allegedly mur-
dered the victim and “‘would have contradicted the [S]tate’s
evidence underlining proof of [his] alibi during the time of the
victim’s murder.’” 36 But the defendant did not elaborate as to
this potential testimony in any further detail. As to this wit-
ness, we concluded that the defendant’s allegations consisted
entirely of legal conclusions and conclusions of fact without
supporting facts.
The defendant in Munoz also alleged that another named
witness had engaged in a conversation with the defendant’s son
that was instrumental to his desire to travel out of town during
the time the crime took place and that this testimony would
have been pivotal because the witness possessed knowledge
of the events leading to the defendant’s desire to travel. While
the facts alleged by the defendant were more specific regarding
the witness’ testimony, we found it was still insufficient to war-
rant an evidentiary hearing. We explained that the defendant
failed to allege when the conversation regarding his desire to
travel with the witness took place—specifically whether the
conversation took place before the murder—and the testimony
would not have been exculpatory under the facts of the case
because the alleged alibi was for when the victim, who had
been murdered several days before, was found, not when she
was murdered. We also noted that the testimony would have
been inadmissible hearsay.
In contrast, we found the facts alleged by the defendant in
State v. Stricklin 37 were sufficient to show, if proved, both defi-
cient performance and prejudice regarding his alibi defense. In
Stricklin, the defendant alleged that on the day of the crimes,
he took his stepson to a barber shop at 10 a.m., left the barber
shop around noon, and drove to his grandmother’s house, dur-
ing which drive he made a call on his cell phone at 12:34 p.m.
36
Id. at 295, 959 N.W.2d at 812.
37
Stricklin, supra note 29.
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The defendant alleged that four specifically named witnesses
and his cell phone records would corroborate this alibi. At trial,
the State relied on cell phone evidence that linked the defend
ant and his codefendant to the crime scene between 11:42 a.m.
and 12:36 p.m. We noted that, based on the State’s theory of
the case, the crimes occurred during the general time period
the defendant’s alleged alibi witnesses would confirm he was
someplace else. Since the defendant alleged that counsel knew
of this alibi information and was deficient in failing to pre
sent it, we found that the defendant had alleged facts which,
if proved, were sufficient to show both deficient performance
and prejudice regarding his alibi defense and that the defendant
was entitled to an evidentiary hearing on whether trial counsel
was ineffective for failing to file notice of and present evi-
dence of the defendant’s alibi defense.
While Lessley alleged Westbrook would have attested that
he was with Lessley between 1:30 and 4:30 a.m. on the day
of Pope’s murder and Goodwin’s assault, he did not allege
where Westbrook would have testified he and Lessley were
at those times. Thus, this alleged potential testimony was not
inconsistent with Westbrook’s being with Lessley outside of
the victims’ house. Unlike in Stricklin, it was not potential
evidence that Lessley was somewhere else. It was not alibi evi-
dence. The allegation that had counsel interviewed and inves-
tigated Westbrook as part of his trial investigation of the facts
of the case, “compelling testimony likely would have been
given resulting in [his] acquittal,” 38 is a factual conclusion and
also insufficient.
The district court did not err in denying Lessley’s motion
without an evidentiary hearing on this claim.
(b) Refusal to Allow Lessley to Testify
Lessley asserts that trial counsel was ineffective because
counsel refused to allow him to testify to an extramarital affair
with Pope and the altercation that ensued between him and
38
Brief for appellant at 11.
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Goodwin between 12:30 and 1:15 a.m. the night of Pope’s
murder. Lessley argues that had this testimony been presented
to the jury, it would have explained some of the circumstantial
evidence present at the crime scene, which we presume means
his DNA and his shoe print on Goodwin’s laptop.
[24-27] A defendant has a fundamental constitutional right
to testify, and the right to testify is personal to the defendant
and cannot be waived by defense counsel’s acting alone. 39
Defense counsel bears the primary responsibility for advising
a defendant of his or her right to testify or not to testify, of
the strategic implications of each choice, and that the choice
is ultimately for the defendant to make. 40 Defense counsel’s
advice to waive the right to testify can present a valid claim
of ineffective assistance of counsel in two instances: (1) if the
defendant shows that counsel interfered with his or her free-
dom to decide to testify or (2) if counsel’s tactical advice to
waive the right was unreasonable. 41 In a postconviction action,
when a defendant raises a claim of ineffective assistance of
trial counsel related to counsel’s failure with regard to advising
the defendant on his or her right to testify, we have subjected
the claim to the Strickland standard and required the defendant
to show how trial counsel’s alleged deficient performance
prejudiced the defense. 42
Lessley does not specifically allege supporting facts that
show how counsel interfered with his decision on whether
to testify or if counsel’s advice to waive his right to testify
was unreasonable. Lessley provides no detail regarding what
discussions he had with counsel that would show counsel
interfered with his right to testify and little detail as to what
his testimony actually would have been. His allegation that
counsel refused to let him testify to an extramarital affair
39
State v. Golyar, 301 Neb. 488, 919 N.W.2d 133 (2018).
40
Cullen, supra note 2.
41
Stricklin, supra note 29.
42
Cullen, supra note 2.
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with Pope and an altercation between him and Goodwin is a
conclusory factual statement that is insufficient without sup-
porting facts.
Lessley failed to allege sufficient facts that, if proved, would
show counsel’s performance was ineffective with respect to
Lessley’s right to testify. The district court did not err when it
denied this claim without an evidentiary hearing.
(c) Failure to Offer Expert Witnesses
Lessley contends that trial counsel did not perform as a
competent attorney because counsel did not make readily avail-
able expert witnesses who would have presented scientific and
forensic testimony to “refute the State’s evidence.” 43 More
specifically, Lessley asserts that had counsel elicited testimony
of a serology expert, “an expert would have testified the blood-
spatter from the baseball bat and laptop was a mixture of . . .
Goodwin and possibly [Lessley]” and would have “testified to
the [n]ew testing procedures and the flaw[ed] testing proce-
dures use[d] by the State[’]s forensic department.” 44 Lessley
generally asserts that the failure to consult with an expert
prejudiced his defense.
[28] We will not consider Lessley’s argument that this
expert would have testified to the flawed testing proce-
dures by the State because this allegation does not appear in
Lessley’s motion for postconviction relief. In an appeal from
the denial of postconviction relief, we will not consider for
the first time on appeal claims that were not raised in the
verified motion. 45
As for the remaining assertions, Lessley fails to allege how
a serology expert’s testimony that the blood spatter was a mix-
ture of Goodwin’s and Lessley’s blood would have changed
the outcome of the trial. Lessley does not seem to dispute that
at least some of the blood on the bat was his, and in light of
43
Brief for appellant at 12.
44
Id.
45
State v. Britt, 310 Neb. 69, 963 N.W.2d 533 (2021).
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all the evidence offered against him at trial, it is unclear how
this expert testimony that would “refute the State’s evidence”
would be enough to alter the outcome of the trial.
Again, the facts Lessley alleges are insufficient to require
an evidentiary hearing. The district court did not err in denying
an evidentiary hearing on the alleged ineffectiveness of fail-
ing to elicit testimony of a serology expert.
(d) Failure to Object to Amendment
of Information
Finally, Lessley generally asserts trial counsel was ineffec-
tive because counsel failed to object to the State’s amending
the information on the first day of trial. Lessley argues that this
prejudiced him “in that there was no time to prepare for the
new charges.” 46
The record affirmatively refutes this. The State is correct
when it argues that there was no prejudice to Lessley. The
State did not change or add charges when it amended the
information; rather, it simply removed one of the theories of
first degree murder that Lessley had been charged with. The
State removed the premeditated murder theory and proceeded
to trial on only the felony murder theory. Therefore, Lessley
did not have to “prepare for the new charges” 47 or “prepare
and present a new defense strategy” as he asserts. Lessley fails
to allege facts to show that he was prejudiced by this amend-
ment and that counsel was ineffective for failing to object to it.
The district court did not err in denying Lessley an evidentiary
hearing on this claim.
VI. CONCLUSION
For the foregoing reasons, we affirm the order of the district
court denying Lessley’s motion for postconviction relief with-
out an evidentiary hearing.
Affirmed.
46
Brief for appellant at 12.
47
Id. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487209/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/18/2022 09:05 AM CST
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IN RE MARGARET L. MATTHEWS REVOCABLE TRUST
Cite as 312 Neb. 381
In re Margaret L. Matthews Revocable Trust.
Wells Fargo Bank, N.A., as Trustee of the Margaret L.
Matthews Revocable Trust, appellee, v. Salvation
Army and Visiting Nurse Association of the
Midlands, doing business as Visiting Nurse
Association, appellees, and Nebraska Synod
of the Evangelical Lutheran Church in
America, substituted for Pella Evangelical
Lutheran Church, appellant.
___ N.W.2d ___
Filed September 9, 2022. No. S-21-507.
1. Trusts: Equity: Appeal and Error. Absent an equity question, an
appellate court reviews trust administration matters for error appear-
ing on the record; but where an equity question is presented, appellate
review of that issue is de novo on the record.
2. Declaratory Judgments. Whether an action for declaratory judgment is
to be treated as one at law or one in equity is to be determined by the
nature of the dispute. The test is whether, in the absence of the prayer
for declaratory judgment, the issues presented should properly be dis-
posed of in an equitable action, as opposed to a legal action.
3. Evidence: Appeal and Error. In a review de novo on the record, an
appellate court reappraises the evidence as presented by the record and
reaches its own independent conclusions concerning the matters at issue.
However, the court may give weight to the fact that the trial court heard
and observed the witnesses and their manner of testifying, and accepted
one version of the facts rather than the other.
4. Jurisdiction: Appeal and Error. Before reaching the legal issues pre-
sented for review, it is an appellate court’s duty to determine whether it
has jurisdiction to decide the issues presented.
5. ____: ____. Where a lower court lacks subject matter jurisdiction to
adjudicate the merits of a claim, issue, or question, an appellate court
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also lacks the power to determine the merits of the claim, issue, or ques-
tion presented to the lower court.
6. Trusts: Declaratory Judgments. Nebraska’s declaratory judgment stat-
utes allow trustees and persons interested in the administration of a trust
to seek a declaration regarding any question arising in the administration
of a trust.
7. Trusts. A trustee or beneficiary may apply to an appropriate court for
instructions regarding the administration or distribution of the trust if
there is reasonable doubt about the powers or duties of the trusteeship
or about the proper interpretation of the trust provisions.
8. Jurisdiction: Final Orders: Appeal and Error. For an appellate court
to acquire jurisdiction of an appeal, there must be a final judgment or
final order entered by the tribunal from which the appeal is taken.
9. Final Orders: Words and Phrases. To be final, an order must dispose
of the whole merits of the case. When no further action of the court is
required to dispose of a pending cause, the order is final.
10. Declaratory Judgments: Parties. When declaratory relief is sought,
it is a statutory requirement that all persons shall be made parties who
have or claim any interest which would be affected by the declaration,
and no declaration shall prejudice the rights of persons not parties to
the proceeding.
11. Trusts: Courts: Jurisdiction. The act of registering a trust gives the
county court jurisdiction over the interests of all notified beneficiaries to
decide issues related to any matter involving the trust’s administration,
including a request for instructions or an action to declare rights.
12. Trusts: Words and Phrases. The term “beneficiary” includes per-
sons with a present or future beneficial interest in a trust, vested or
contingent.
13. Trusts: Intent. The primary rule of construction for trusts is that a court
must, if possible, ascertain the intention of the testator or creator.
14. Corporations: Charities. A gift, donation, or bequest by name, without
further restriction or limitation as to use, to a corporation organized and
conducted solely for charitable purposes, will be deemed to have been
made for the objects and purposes for which the corporation was orga-
nized, and not to the corporation itself.
15. Charities: Intent. The charitable intent of the donor is ascertained by
reference to the charitable purposes of the donee.
Appeal from the County Court for Douglas County: Derek
R. Vaughn, Judge. Affirmed.
William J. Lindsay, Jr., and Zachary W. Lutz-Priefert, of
Gross & Welch, P.C., L.L.O., for appellant.
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IN RE MARGARET L. MATTHEWS REVOCABLE TRUST
Cite as 312 Neb. 381
Krista M. Eckhoff, Jesse D. Sitz, and Brian Barmettler, of
Baird Holm, L.L.P., for the Salvation Army and the Visiting
Nurse Association of the Midlands.
Heavican, C.J., Cassel, Stacy, Funke, Papik, and
Freudenberg, JJ., and Stecker, D.J.
Heavican, C.J.
The late Margaret L. Matthews established and amended
a revocable trust prior to her death wherein she made three
bequests: one each to the Salvation Army and the Visiting Nurse
Association of the Midlands, doing business as Visiting Nurse
Association (VNA), appellees, and one to Pella Evangelical
Lutheran Church (Pella). As amended, each bequest encom-
passed the named beneficiary, as well as its charitable succes-
sors and assigns. Prior to Matthews’ death, Pella had ceased
to exist. Wells Fargo Bank, N.A. (Wells Fargo), as trustee of
the trust, filed a petition for declaratory judgment concern-
ing Pella’s existence. The Nebraska Synod (Synod) of the
Evangelical Lutheran Church in America (ELCA), appellant,
a conglomerate of churches to which Pella belonged prior to
cessation, was allowed to intervene and asserted that it was
entitled to Pella’s share of the trust property.
After trial, the Douglas County Court determined that the
Synod was not Pella’s charitable successor and assign, and it
ordered that Pella’s share be distributed pro rata to the Salvation
Army and the VNA, the remaining named beneficiaries, pursu-
ant to the terms of the trust. The county court accordingly
denied the Synod’s complaint in intervention. We affirm.
I. FACTUAL BACKGROUND
In 2006, Matthews established a revocable trust. Pursuant to
the trust, and upon her death, property was to be distributed to
a number of charitable organizations. Wells Fargo was selected
to serve as trustee.
The provisions located within article VIII of the trust pro-
vided for the following distribution of trust property: “(a)
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One-half (1/2) to the SALVATION ARMY, WESTERN
DIVISION, Omaha, Nebraska; (b) One-sixth (1/6) to the
BETHESDA LUTHERAN HOME FOUNDATION, INC.,
Watertown, Wisconsin; (c) One-sixth (1/6) to the VISITING
NURSE ASSOCIATION, Omaha, Nebraska; and (d) One-
sixth (1/6) to the PELLA LUTHERAN CHURCH, Omaha,
Nebraska.” (Emphasis omitted.) The trust also provided that in
the event any of the beneficiaries did not exist at the time of
Matthews’ death or was no longer a charity, the bequest would
instead be allocated to the remaining existing and qualified
charities, pro rata.
In 2010, Matthews amended her trust, modifying only article
VIII. Through this amendment, Matthews removed Bethesda
Lutheran Home Foundation, Inc., as a beneficiary, reallocated
shares of trust property, and added the language “its chari-
table successors and assigns” to each charitable beneficiary
as follows: “(a) One-half (1/2) to the SALVATION ARMY,
WESTERN DIVISION, Omaha, Nebraska, its charitable suc-
cessors and assigns; (b) One-fourth (1/4) to the VISITING
NURSE ASSOCIATION, Omaha, Nebraska, its charitable
successors and assigns; and (c) One-fourth (1/4) to the PELLA
LUTHERAN CHURCH, Omaha, Nebraska, its charitable suc-
cessors and assigns.” (Emphasis omitted.)
After Matthews’ death in January 2018, Wells Fargo, serv-
ing as trustee, registered the trust with the court and filed a
petition for declaratory judgment. Wells Fargo sought a dec-
laration concerning distribution of trust property pursuant to
the terms of the trust as it pertained to Pella. After receiving
notice of the declaratory judgment action, the Synod filed
a motion to intervene, asserting that it was the proper and
lawful successor of Pella and that, as such, it was entitled to
Pella’s share of trust property. The Salvation Army and the
VNA resisted this claim, arguing that Pella had no charitable
successors or assigns and, as a result, that Pella’s share should
be distributed between the two pro rata, pursuant to the terms
of the trust.
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IN RE MARGARET L. MATTHEWS REVOCABLE TRUST
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On December 28, 2018, the county court authorized inter-
vention and permitted the Synod to align as a defendant. A trial
was held on the matter in April 2021 to determine whether the
Synod was Pella’s charitable successor and assign. The follow-
ing evidence was introduced at trial.
Pella was a local Lutheran congregation in Omaha, Nebraska,
whose activities were overseen by the Synod, a regional
governing body within the ELCA. The Synod oversees 200-
plus Lutheran congregations in Nebraska that together with
the other regional synods across the nation, make up the
national ELCA.
Although incorporating under state law was not a require-
ment of the ELCA, Pella was organized as a corporation
under Nebraska law and was governed in part by its articles
of incorporation. As a member of the Synod and the ELCA,
Pella was also subject to, and governed by, the ELCA’s model
constitution in addition to its own local constitution. Whenever
required provisions are updated or added to the model constitu-
tion by the ELCA, those provisions are automatically deemed
to be implemented as part of all local constitutions in effect,
even where local constitutions do not make any changes. The
model constitution in effect at the time Pella dissolved indi-
cated that Pella’s affiliation with the ELCA could be terminated
if the congregation took action to dissolve, ceased to exist, was
removed from membership in the ELCA according to internal
discipline procedures, or followed internal procedures other-
wise set forth in the model constitution. If the congregation
ceased to exist, title to any undisposed property would pass to
the Synod.
In 2012, the Synod assigned the Reverend Juliet Focken to
assist Pella in its search for a part-time minister after it had
become clear that Pella could not support a full-time minis-
ter. In 2013 and 2014, Focken held numerous meetings with
Pella’s council members to suggest and work through their
options moving forward. Some of these options included the
continued use of a part-time minister, the merger with another
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congregation of the Synod, or dissolution. As a result of wan-
ing membership and other financial and pastoral concerns,
Pella ultimately made the decision to dissolve and cease wor-
ship services. The Synod again assigned Focken to oversee and
assist Pella in this process, and it provided guidance to Pella
regarding specific steps for dissolution.
Members of Pella were provided notice of a dissolution
meeting; however, the notice did not feature a dissolution plan
and did not indicate who received copies of this notice. At the
meeting, no record was made to show that the requisite number
of voting members were in attendance, nor that the requisite
number of members voted in favor of dissolution. Matthews
herself did not receive such notice, but Pella’s then-pastor
testified that Matthews did not receive a letter because of her
mental state and that Matthews would not have understood its
contents even if she had received a copy.
As part of the dissolution process, Pella evaluated its real
and personal property and Focken compiled a list of Pella’s
assets, which were transferred to fellow congregations or given
away to church members. In March 2014, nearly 4 years prior
to Matthews’ death, Pella held its last worship service. Any
property or assets that remained at that time were transferred to
the Synod through warranty deeds, including Pella’s building.
Focken then transferred Pella’s members to other congrega-
tions; some members voluntarily transferred, and others, such
as Matthews, were administratively transferred to a receiving
congregation at Augustana Lutheran Church (Augustana) in
Omaha. The remaining assets that had been transferred to the
Synod were sold or disposed of shortly thereafter, including
transfers of property to other congregations across Nebraska.
Pella’s building was sold that same month.
Brian Maas, the bishop and administrative leader of the
Synod, testified to the hallmarks that indicate the existence of
a congregation: It gathers regularly for worship, is served by
a ministry leader, has an active identification number within
the ELCA, and is recognized by the Synod and internally as
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a congregation. According to Maas, even if there was never a
formal vote to dissolve Pella, the fact that Pella lacked all of
the hallmarks of a congregation meant that “within the eyes”
of the Synod Pella had “ceased to exist.” Maas also testified
that after Pella closed, all of the usual hallmarks of a closure
had occurred. The Synod had given notification to its council;
distributed assets (including the church building, the parson-
age, and some financial accounts); and archived all the records
it had for Pella.
Maas discussed the nature of individual churches which
were also corporate entities. Maas stated that a congregation’s
existence as a church was not contingent or dependent upon
the entity’s corporate structure and that there are congregations
within the Synod which are not formally incorporated. The
Synod does not formally require congregations to dissolve with
the Secretary of State’s office. A congregation which lacked
the requisite hallmarks would be deemed to no longer exist
regardless of whether it was still incorporated under the laws
of its home state, and, alternatively, congregations which had
all the hallmarks of existence would be deemed to exist even
if that congregation was not incorporated under the laws of its
home state.
The VNA vice president of development and communica-
tions, along with a Salvation Army major, who was also a
minister and divisional secretary of business for the Salvation
Army’s division located in Iowa, Nebraska, and South Dakota,
both testified for appellees. The VNA vice president detailed
the long-term relationship between the VNA and Matthews,
including that the VNA had cared for Matthews’ husband in
its hospice services and that a number of its hospice nurses
had established close personal relationships with Matthews
that lasted long after care for her husband had ceased. The
Salvation Army major detailed a similar relationship between
Matthews and the Salvation Army. According to the major,
Matthews provided the Salvation Army with over 70 gifts
during her lifetime, amounting to over $125,000 in support
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IN RE MARGARET L. MATTHEWS REVOCABLE TRUST
Cite as 312 Neb. 381
for its charitable mission. Matthews was often in attendance
at special events hosted by the Salvation Army, and some
of its employees developed close personal relationships with
Matthews that included visits to Matthews’ home on a regular
basis to watch movies and spend time with Matthews.
After considering the evidence, the county court concluded
that the Synod failed to prove that it was Pella’s charitable
successor and assign, as such terms were used in the trust.
The county court found that (1) Pella had failed to properly
dissolve according to the Nebraska Nonprofit Corporation
Act (NNCA) and its own internal governance documents, (2)
Pella did not establish any separate foundation or charitable
entity to remain associated with the ELCA following dissolu-
tion, (3) the Synod did not support the charitable functions
of Pella in the same manner as Pella had prior to its dissolu-
tion, and (4) Matthews had not intended to make a distribu-
tion to the Synod. Accordingly, the county court denied the
Synod’s complaint in intervention and ordered that Pella’s
share of the trust be distributed to appellees pro rata pursu-
ant to the alternative distribution provisions of the trust. The
Synod appealed.
II. ASSIGNMENTS OF ERROR
The Synod assigns that the county court erred in (1) con-
cluding that the Synod was not an appropriate successor to
Pella, (2) concluding that the Synod was not entitled to receipt
of Pella’s share of Matthews’ assets and that such assets should
not have been distributed to the Synod, (3) finding that Pella
failed to follow its own requirements for dissolution, (4) mak-
ing a resolution of a doctrinal dispute, and (5) failing to prop-
erly follow the religious associations statutes.
III. STANDARD OF REVIEW
We begin by clarifying our standard of review. Beginning
in 1982 with In re Zoellner Trust, 1 this court stated that all
1
In re Zoellner Trust, 212 Neb. 674, 678, 325 N.W.2d 138, 141 (1982).
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“[a]ppeals involving the administration of a trust are equity
matters and are reviewable in this court de novo on the record.”
A de novo on the record standard was thereafter applied to most
appeals involving trust administration issues. However, an
error on the record standard has also been utilized in a smaller
number of appeals regarding trust administration issues. We
recognized both standards of review in In re R.B. Plummer
Memorial Loan Fund Trust 2 and focused on the specific issues
presented to determine whether de novo review applied.
[1] In In re Margaret Mastny Revocable Trust, 3 we con-
cluded that this issue-specific approach was preferable and
more consistent with our standard for appellate review under
the Nebraska Probate Code. Accordingly, we held that “absent
an equity question, an appellate court reviews trust administra-
tion matters for error appearing on the record; but where an
equity question is presented, appellate review of that issue is
de novo on the record.” 4
[2] Pursuant to these holdings, whether this court reviews
the issues de novo on the record or for error on the record
requires examination of the issue underlying the claim. While
this case began as a declaratory judgment action, similar to a
trust administration issue, we have held that whether an action
for declaratory judgment is to be treated as one at law or one
in equity is to be determined by the nature of the dispute. 5 The
test is whether, in the absence of the prayer for declaratory
judgment, the issues presented should properly be disposed of
in an equitable action, as opposed to a legal action. 6
2
In re R.B. Plummer Memorial Loan Fund Trust, 266 Neb. 1, 661 N.W.2d
307 (2003).
3
In re Margaret Mastny Revocable Trust, 281 Neb. 188, 794 N.W.2d 700
(2011).
4
Id. at 198, 794 N.W.2d at 710.
5
See Homestead Estates Homeowners Assn. v. Jones, 278 Neb. 149, 768
N.W.2d 436 (2009).
6
Boyles v. Hausmann, 246 Neb. 181, 517 N.W.2d 610 (1994).
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Utilizing that test in the present case, the issues resemble
injunctive relief, an equitable remedy. The purpose of an
injunction is to restrain actions that have not yet been taken. 7
Similarly, the Synod has requested, through its complaint in
intervention and answer to Wells Fargo’s petition, that the
court find the Synod to be Pella’s charitable successor and
assign, and the Synod asks the court to order Wells Fargo to
either do or refrain from doing a specified act, i.e., to distrib-
ute Pella’s share to the Synod rather than to the other named
beneficiaries.
[3] Accordingly, we review this case de novo on the record. 8
In a review de novo on the record, an appellate court reap-
praises the evidence as presented by the record and reaches its
own independent conclusions concerning the matters at issue. 9
However, the court may give weight to the fact that the trial
court heard and observed the witnesses and their manner of
testifying, and accepted one version of the facts rather than
the other. 10
IV. ANALYSIS
1. Jurisdiction
[4] Before reaching the legal issues presented for review, it
is our duty to determine whether we have jurisdiction to decide
them. 11 This case presents multiple jurisdictional questions, so
we find it necessary to exercise that duty here.
(a) Subject Matter Jurisdiction
of County Court
[5] Where a lower court lacks subject matter jurisdiction
to adjudicate the merits of a claim, issue, or question, an
7
Stewart v. Heineman, 296 Neb. 262, 892 N.W.2d 542 (2017).
8
See In re Margaret Mastny Revocable Trust, supra note 3.
9
Id.
10
Siedlik v. Nissen, 303 Neb. 784, 931 N.W.2d 439 (2019).
11
Green v. Seiffert, 304 Neb. 212, 933 N.W.2d 590 (2019).
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appellate court also lacks the power to determine the merits
of the claim, issue, or question presented to the lower court. 12
Thus, we begin with a review of the county court’s jurisdiction
in this matter.
According to Neb. Rev. Stat. § 30-3814(a) (Reissue 2016),
to the full extent permitted by the Nebraska Constitution, the
county court has jurisdiction over all subject matter relating to
trusts. Neb. Rev. Stat. § 30-3819 (Reissue 2016) states that by
registering a trust or accepting the trusteeship of a trust, the
trustee submits to the jurisdiction of the court of registration
in any proceeding under Neb. Rev. Stat. § 30-3812 (Reissue
2016). Section 30-3812(c) specifically states that a judicial
proceeding involving a trust may relate to any matter involving
the trust’s administration, including a request for instructions
and an action to declare rights.
[6,7] We have said that Nebraska’s declaratory judgment
statutes allow trustees and persons interested in the admin-
istration of a trust to seek a declaration regarding any ques-
tion arising in the administration of a trust. 13 A trustee or
beneficiary may apply to an appropriate court for instruc-
tions regarding the administration or distribution of the trust
if there is reasonable doubt about the powers or duties of
the trusteeship or about the proper interpretation of the trust
provisions. 14
Wells Fargo requested that the county court declare that
Pella did not exist, declare that Pella was not a beneficiary,
and order Wells Fargo to distribute the trust’s assets to the
Salvation Army and to the VNA. Wells Fargo also requested
that the county court find that such actions would not vio-
late Wells Fargo’s duties as trustee and to find that the trust
shall terminate upon payment of expenses, taxes, and dis-
tribution of remaining trust assets. Essentially, Wells Fargo
12
See In re Estate of Evertson, 295 Neb. 301, 889 N.W.2d 73 (2016).
13
In re Trust Created by Hansen, 274 Neb. 199, 739 N.W.2d 170 (2007).
14
Id.
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requested that the county court instruct it, as trustee, on its
duties and powers related to payment of charitable bequests
within Matthews’ trust. This action is thus authorized pursu-
ant to §§ 30-3812(c), 30-3814(a), and 30-3819, as well as
the Nebraska Uniform Declaratory Judgments Act, 15 and the
county court had jurisdiction to adjudicate Wells Fargo’s peti-
tion for declaratory judgment.
(b) Appellate Jurisdiction
[8,9] For an appellate court to acquire jurisdiction of an
appeal, there must be a final judgment or final order entered by
the tribunal from which the appeal is taken. 16 To be final, an
order must dispose of the whole merits of the case. When no
further action of the court is required to dispose of a pending
cause, the order is final. 17
In this case, Wells Fargo registered the Matthews trust and
filed a petition with the court seeking a declaratory judgment
regarding distribution of trust funds. Wells Fargo requested
that the county court declare that Pella either did not exist or
was not a charity at the time of Matthews’ death, declare that
Pella was not entitled to a share of trust assets, and order Wells
Fargo to distribute the trust’s assets to the Salvation Army and
to the VNA.
After hearing from Wells Fargo and from the Synod, the
county court entered an order denying the Synod’s com-
plaint in intervention. It held that pursuant to the terms of
the trust, “Pella[’s] share of the Trust shall be distributed pro
rata to the Salvation Army and [the VNA].” The order also
stated that any additional motions or matters pending that
were not decided in accordance with the order were denied
as moot. This order disposed of the whole merits of the case
by granting the relief sought by Wells Fargo in its petition
15
Neb. Rev. Stat. § 25-21,149 et seq. (Reissue 2016).
16
In re Estate of Severson, 310 Neb. 982, 970 N.W.2d 94 (2022).
17
Olsen v. Olsen, 248 Neb. 393, 534 N.W.2d 762 (1995).
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for declaratory judgment. Pursuant to this order, Wells Fargo
would have the authority to disburse funds to the Salvation
Army and to the VNA, and there were no remaining issues
which would require further action by the court. Accordingly,
this was a final, appealable order.
(c) Notice to Augustana
In its petition for declaratory judgment, Wells Fargo named
the three charitable beneficiaries listed in the trust—the
Salvation Army, the VNA, and Pella—but did not name either
the Synod or Augustana. The record indicates that the Synod
and Augustana each obtained property, assets, or congregation
members from Pella when it dissolved, and this raises a ques-
tion of whether either entity is a necessary party to this action.
While the Synod intervened in the matter, Augustana did not
intervene and took no action in this case. Thus, we must con-
sider whether Augustana’s absence deprived the county court,
and this court, of jurisdiction over this matter.
[10] When declaratory relief is sought, we have said that it
is a statutory requirement that all persons shall be made par-
ties who have or claim any interest which would be affected
by the declaration, and no declaration shall prejudice the
rights of persons not parties to the proceeding. 18 However, the
declaratory relief sought by Wells Fargo in this case relates to
its duties as trustee, and thus, in addition to our rules regard-
ing declaratory judgments, it also implicates the Nebraska
Uniform Trust Code.
By registering a trust, the trustee submits personally to
the jurisdiction of the court of registration in any proceeding
under § 30-3812 relating to the trust while the trust remains
registered, and to the extent of their interests in the trust, all
beneficiaries of a trust properly registered in this state are
subject to the jurisdiction of the court of registration for the
purposes of proceedings under § 30-3812, provided notice is
18
SID No. 2 of Knox Cty. v. Fischer, 308 Neb. 791, 957 N.W.2d 154 (2021).
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given pursuant to Neb. Rev. Stat. § 30-2220 (Reissue 2016). 19
Section 30-2220(a)(2) states that notice by publication can be
accomplished by publishing at least once a week for three con-
secutive weeks a copy thereof in a legal newspaper having gen-
eral circulation in the county where the hearing is to be held,
the last publication of which is to be at least 3 days before the
time set for the hearing.
After Matthews’ death in January 2018, Wells Fargo regis-
tered Matthews’ trust with the Douglas County Court on July
16. In September, Wells Fargo filed a petition for declara-
tory judgment regarding the distribution of a trust under the
Nebraska Uniform Trust Code and the Nebraska Uniform
Declaratory Judgments Act. 20 The county court set a hearing
date for November 5. A notice of the hearing was forwarded
by the court registrar to The Daily Record, a legal newspaper,
with instructions for publication of the notice as required
by statute. 21
Wells Fargo thereafter filed an affidavit of mailing in accord
ance with statute, 22 affirming to the court that notice of the
proceeding was first published in Douglas County, Nebraska,
and that on September 20, 2018, Wells Fargo sent copies of
the notice of hearing and petition for declaratory judgment
by certified mail to 26 parties. Of the 26 notices mailed, 12
were directed to the registered agent and former directors
of Pella, 2 were directed to the Salvation Army’s registered
agent and legal department, 1 was directed to the Nebraska
Attorney General, and 11 were directed to the registered
agent and directors of Augustana. As a result of this notice,
the Synod sought, and was allowed, to intervene in the action
and align as a defendant. A copy of the Synod’s complaint in
19
See § 30-3819(a) and (b).
20
See §§ 30-3812(c), 30-3814(a), 30-3819, and 25-21,149 et seq.
21
§ 30-2220(a)(2).
22
§ 30-2220(c) (“[p]roof of the giving of notice shall be made on or before
the hearing and filed in the proceeding”).
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intervention was mailed to all interested parties, including at
least 11 directors of Augustana. Hence, we find that Augustana
was properly notified of these proceedings.
[11,12] We have said that “[t]he act of registering a trust
gives the county court jurisdiction over the interests of all
notified beneficiaries to decide issues related to any matter
involving the trust’s administration, including a request for
instructions or an action to declare rights.” 23 The term “ben-
eficiary” includes persons with a present or future beneficial
interest in a trust, vested or contingent. 24 We have also held
that Nebraska’s declaratory judgment statutes allow trustees
and persons interested in the administration of a trust to seek
a declaration regarding any question arising in the administra-
tion of a trust, including a request for the court to instruct the
trustee of its duties and powers. 25
In this action, the county court had jurisdiction to make a
declaration of rights of the beneficiaries of the trust and to
accordingly instruct Wells Fargo as to the distribution of trust
property. Because Augustana was properly notified of the trust
proceedings, Augustana’s absence did not deprive the county
court of jurisdiction and the county court’s judgment in the
matter is binding on Augustana to the extent of its interests
in the trust. Consequently, this court has jurisdiction over this
claim. We turn now to the merits of the Synod’s claim.
2. Doctrinal Issues
The Synod assigns that the county court erred in making a
resolution of a doctrinal dispute, an issue which underlies each
of the Synod’s arguments. The Synod argues that the deter-
mination of whether Pella had ceased to exist is a doctrinal
matter, which can only be made by the Synod, and that such
23
In re Trust Created by Hansen, supra note 13, 274 Neb. at 206-07, 739
N.W.2d at 177 (emphasis supplied).
24
In re Trust Created by Hansen, supra note 13.
25
Id.
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determination cannot be adjudicated by the court using neutral
principles of law.
The Synod misunderstands this court’s use of neutral prin-
ciples of law to adjudicate disputes involving religious enti-
ties. We have applied the NNCA 26 to assess church closings
and property transfers to affiliate churches and have applied
a neutral principles of law approach to adjudicate disputes
where religious organizations disagree with one another as to
the state of the law or resolution of their dispute.
For example, in Glad Tidings v. Nebraska Dist. Council, 27
this court applied the NNCA to adjudicate an intrachurch
dispute regarding property held by each entity. In Glad
Tidings, a local church wanted to dissolve and a larger
affiliate church ordered that certain property belonging to
the local church must be transferred to the larger affiliate.
The local church sought a declaration that the board of direc-
tors had exceeded its authority in transferring such property
to the larger affiliate. We applied the NNCA and the Model
Business Corporation Act to define the term “transaction”
as it related to the dispute and concluded that no transaction
had occurred between the local and larger church entities.
We did not overstep the authority of each church entity to
decide its own outcomes in regard to doctrinal matters, but
instead looked to the rules governing corporations to resolve
a nondoctrinal question between the entities concerning the
property dispute.
And in Aldrich v. Nelson, 28 this court found that the dis-
trict court had jurisdiction to adjudicate the dispute, even
where the issue presented was an internal church dissolu-
tion dispute between a local Lutheran church and the larger
26
See Neb. Rev. Stat. §§ 21-1901 to 21-19,177 (Reissue 2012 & Cum. Supp.
2020).
27
Glad Tidings v. Nebraska Dist. Council, 273 Neb. 960, 734 N.W.2d 731
(2007).
28
Aldrich v. Nelson, 290 Neb. 167, 859 N.W.2d 537 (2015).
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affiliated synod. We stated the court was allowed to apply neu-
tral principles, defined as “‘secular legal rules whose applica-
tion to religious parties or disputes [do] not entail theological
or religious evaluations,’” in order to determine the outcome
of the issue from a secular, not religious, perspective. 29 Here,
the same is true: The county court was not tasked with deter-
mining the doctrinal question of whether Pella existed with
such hallmarks that it qualified as a congregation within the
ELCA and was subject to the control of the Synod. Instead,
the county court was tasked with analyzing whether Pella’s
methods of dissolution had an impact on whether the Synod
was Pella’s charitable successor and assign and thus entitled to
Pella’s portion of trust property.
The Synod agrees that Pella did not exist at the time of
Matthews’ death. The parties disagree as to whether Pella had
a charitable successor and assign for purposes of the trust. In
order to interpret the meaning of the phrase “charitable suc-
cessors and assigns,” the county court looked to the NNCA to
assess whether Pella, as a nonprofit corporation incorporated
in the State of Nebraska, had dissolved in a manner consistent
with State law such that the specific charitable activities of
Pella would be supported by the Synod moving forward, mak-
ing the Synod a charitable successor and assign of Pella. The
county court did not make a resolution of a doctrinal dispute
in determining the issues of this case. This assignment of error
is without merit.
3. Religious Associations Statutes
After arguing that this issue is a doctrinal matter, the Synod
next argues that the county court erred in analyzing the issues
under the NNCA, asserting that such statutes do not control
the issue of Pella’s existence. The Synod argues that the
county court should have looked to the statutes concerning
29
Id. at 170, 859 N.W.2d at 540.
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religious associations and the vesting of property in religious
entities which have ceased to exist. 30
Contrary to the Synod’s position on this matter, these stat-
utes merely establish a method for church entities to obtain
good title for real and personal property owned by a church
which is abandoned or which ceased to exist. 31 These statutes
might have been applicable if Pella had dissolved without first
transferring its real and personal property to the Synod. But
here, Pella ensured that the Synod was able to obtain good
title and executed warranty deeds for its property to the Synod.
The religious association statutes do not resolve the issue of
whether the Synod was a charitable successor and assign of
Pella such that it is entitled to Pella’s share of the trust. This
assignment of error is without merit.
4. Pella’s Dissolution
Next, the Synod argues that the county court erred in finding
that Pella failed to follow its own requirements for dissolu-
tion. Pella, as a religious nonprofit corporation incorporated
under the laws of Nebraska, was subject to the NNCA. Under
the NNCA, steps for corporate dissolution are set forth at
§ 21-19,130. The record indicates that Pella sent notice regard-
ing a special meeting to vote on dissolution, but that no record
was made as to which members received notice, which mem-
bers were present at the meeting, or how many members voted.
This evidence is therefore insufficient to prove that Pella com-
plied with the two-thirds or majority vote provisions required
by the NNCA for dissolution.
The evidence is also insufficient to prove that Pella com-
plied with its own internal requirements for dissolution.
According to the ELCA’s model constitution, a congregation’s
affiliation with the ELCA can be terminated if the congrega-
tion takes action to dissolve, ceases to exist, is removed from
30
See Neb. Rev. Stat. §§ 21-2801 to 21-2803 (Reissue 2012).
31
See § 21-2801(3).
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membership, or follows the procedures laid out at “*C6.05.”
for termination, which include a resolution indicating intent
to terminate, 30 days’ notice of the meeting to the bishop of
the Synod, and a special meeting and two-thirds vote of vot-
ing members present, among other provisions. These provi-
sions within the model constitution are required provisions
and were binding on Pella even in the absence of a change
to Pella’s local constitution. But again, the record does not
contain evidence that Pella gave the required notice, that the
notice was received by the correct parties, or how many mem-
bers attended the special meeting or voted in favor of dissolu-
tion. Testimony from both Maas and Focken also showed that
Pella’s council and leadership members had received a copy of
the ELCA’s suggested steps for dissolution, but that Pella did
not follow them.
In dissolving its congregation, Pella did not follow the steps
for dissolution set forth in the NNCA or the steps set forth in
Pella’s own constitution and bylaws, nor did Pella follow the
ELCA’s suggested steps for dissolution. Pella thus failed to fol-
low its own requirements for dissolution, and this assignment
of error is without merit.
5. Successors and Assigns
Finally, the Synod assigns that the county court erred in
concluding that the Synod was not “an appropriate successor”
to Pella and that as such, the Synod was not entitled to Pella’s
share of the Trust.
(a) Natural Versus Charitable Successors
The Synod argues, in part, that the Synod was Pella’s natural
successor or appropriate successor and asserts that any property
held by Pella should thus become the property of the Synod.
The trust stated that the bequest was for Pella, if in existence as
a charity, or to Pella’s “charitable successors and assigns.” Use
of the term “natural” in this context is inappropriate and does
not resolve the issues raised by either party; hence, we limit
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our analysis here to whether the Synod is a charitable successor
and assign of Pella.
(b) Plain Meaning of Successors and Assigns
The term “successor” is defined as (1) “[s]omeone who suc-
ceeds to the office, rights, responsibilities, or place of another;
one who replaces or follows a predecessor”; or (2) a “cor-
poration that, through amalgamation, consolidation, or other
assumption of interests, is vested with the rights and duties
of an earlier corporation.” 32 The term “assignee” is defined as
“[s]omeone to whom property rights or powers are transferred
by another.” 33 However, “[u]se of the term is so widespread
that it is difficult to ascribe positive meaning to it with any
specificity.” 34 Here, both parties have focused their arguments
on whether the Synod was a successor to Pella.
In concluding that the Synod was Pella’s successor per these
plain definitions, the Synod compares this case to Crumbley v.
Solomon, 35 wherein a local church entity known as Franklin
Tabernacle attempted to withdraw from a larger church entity,
the Holiness Baptist Association, by a majority vote of its
members. The opposing members of Franklin Tabernacle and
trustees of the Holiness Baptist Association sued the with-
drawing members to establish a right of the association to
control local church property. The Crumbley court held that
the disputed property was being held in trust by Franklin
Tabernacle for the benefit of the Holiness Baptist Association.
For that reason, where the deed to property held by the local
church used the phrase “successors and assigns,” it contem-
plated that the association was such a successor.
However, the Crumbley decision was based on application
and interpretation of statutory framework that we do not share
32
Black’s Law Dictionary 1732 (11th ed. 2019).
33
Id. at 147.
34
Id.
35
Crumbley v. Solomon, 243 Ga. 343, 254 S.E.2d 330 (1979).
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with Georgia and was the result of a very different factual cir-
cumstance wherein the two church entities were in disagree-
ment with one another as to the rightful owner of the property.
In Crumbley, the local church had vested rights in the disputed
property; here, Pella merely had a contingent interest in the
trust. The rules of the local church in Crumbley stated that
all property would be held for the larger entity, regardless of
the decisions of the local church to leave the larger entity at
a later time. Here, Pella’s property would pass to the ELCA
if the congregation was both dissolved and its property was
undisposed, but Pella otherwise retained a right to deed its
property to other Lutheran congregations or entities. Crumbley
does not resolve the issues presented here.
Next, the Synod compares this case to Larkin v. City of
Burlington. 36 In Larkin, the city entered into a development
agreement with Northshore concerning undeveloped property.
A later dispute between the parties was settled pursuant to a
consent judgment which allowed Northshore to apply for a
permit seeking no more than 60 residential units on the site
of the property and which was binding on the successors and
assigns of Northshore. After Northshore went into foreclo-
sure, the property was sold to the plaintiff landowner, who
filed for a permit to develop the land pursuant to the consent
judgment. The Vermont Supreme Court concluded that “[t]he
boilerplate language ‘successors and assigns,’ when refer-
ring to corporations, ordinarily applies only when another
corporation, through legal succession, assumes the rights and
obligations of the first corporation.” 37 The development agree-
ment was not binding on the plaintiff landowner because he
had not assumed the rights and obligations of Northshore
in developing the premises and was not a continuation of
Northshore’s corporate entity.
36
Larkin v. City of Burlington, 172 Vt. 566, 772 A.2d 553 (2001).
37
Id. at 569, 772 A.2d at 557.
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While both parties have focused their arguments here on
whether the Synod has proved that it assumed any rights and
obligations of Pella such that Larkin would control the dis-
position of trust assets one way or another, both parties have
incorrectly framed the issues presented by this case: When
Matthews amended her trust, she made a bequest to Pella as
a charitable organization and specifically allowed that the
bequest could only be made to Pella, if it continued to exist
as a charity, or to its charitable successors and assigns, if such
successor organization was also a charity. The trust did not
provide rights to a mere corporate successor, and the holdings
in Larkin regarding corporate successors and assigns distracts
from the real issue.
Whether the Synod was Pella’s successor for purposes of
corporate property ownership would answer the question of
what to do with property owned by or vested in Pella. But
resolution of that question does not answer what to do where
a property interest has not yet vested in Pella, as is the case
here. 38 In order to be entitled to Pella’s share of trust property
under the terms of the trust, the Synod must prove that it is a
charitable successor or assign of Pella.
(c) Charitable Successor
[13-15] The primary rule of construction for trusts is that a
court must, if possible, ascertain the intention of the testator or
creator. 39 A gift, donation, or bequest by name, without further
restriction or limitation as to use, to a corporation organized
and conducted solely for charitable purposes, will be deemed
to have been made for the objects and purposes for which
the corporation was organized, and not to the corporation
38
See In re Trust Created by Haberman, 24 Neb. App. 359, 886 N.W.2d
829 (2016) (until testator’s death, beneficiary’s interest in trust property is
merely contingent expectancy).
39
In re Wendland-Reiner Trust, 267 Neb. 696, 677 N.W.2d 117 (2004).
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itself. 40 The charitable intent of the donor is ascertained by
reference to the charitable purposes of the donee. 41
Membership in Pella was already waning at the time
Matthews amended her trust to add the “charitable successors
and assigns” language, apparently in an effort to avoid compli-
cations if Pella ceased to exist either as an entity or as a charity
prior to Matthews’ death. Through this amendment, Matthews
established a clear intention to leave money not just to Pella,
the Salvation Army, or the VNA as corporate entities, but as
charities which undertook specific charitable purposes. Thus,
in order to establish a right to Pella’s share of trust property,
the Synod must prove that it can and will carry on the chari-
table goals and purposes of Pella.
According to the testimony of Maas, local congregations
such as Pella are gathered to form their local worshiping
community. The Synod, on the other hand, is a “district-like
organization” that oversees as many as 233 congregations
in Nebraska. According to Maas, members and staff of the
Synod work to oversee congregations, taking care of paper-
work, as well as other legal and administrative matters. Unlike
the local congregations, the Synod typically holds services
annually, not weekly. The Synod ultimately functions differ-
ently than Pella and does not share the same specific purposes
which were previously undertaken by Pella, a local congrega-
tion of which Matthews was a member. Based on our de novo
on the record review, we find that the Synod has not proved
it was a charitable successor and assign of Pella. The Synod’s
first assignment of error is without merit.
Where the Synod has not proved that it is a charitable suc-
cessor and assign to Pella, it is not entitled to a share of trust
40
In re Estate of Harrington, 151 Neb. 81, 36 N.W.2d 577 (1949). Accord
Root v. Morning View Cemetery Assn., 174 Neb. 438, 118 N.W.2d 633
(1962).
41
Dept. of Mental Health v. McMaster, 372 S.C. 175, 642 S.E.2d 552
(2007).
- 404 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
IN RE MARGARET L. MATTHEWS REVOCABLE TRUST
Cite as 312 Neb. 381
property; hence, the Synod’s second assignment of error is also
without merit.
V. CONCLUSION
This court has jurisdiction to adjudicate the issues pre-
sented. Resolution of the issues does not require this court to
resolve any doctrinal matters, and the county court also did not
make a resolution of any doctrinal matters. The county court
did not err when it analyzed the issues using the NNCA, nor
when it concluded that Pella failed to follow its own proce-
dures for dissolution.
Based upon a de novo on the record review of the issues
presented, we find that the Synod did not prove it was a chari-
table successor of Pella. The Synod’s assigned errors are with-
out merit. Accordingly, we affirm the decision of the county
court, which denied the Synod’s complaint in intervention
and ordered distribution of Pella’s share of trust assets to the
Salvation Army and the VNA, pro rata, pursuant to the terms
of the trust.
Affirmed.
Miller-Lerman, J., not participating. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487222/ | SCHWELB, Associate Judge,
concurring in the judgment.
I concur in the judgment of the court and in all of the court’s opinion except the discussion of harmless error. In my view, that discussion is unnecessary, for it has no bearing on the outcome of the appeal. The result, affirmance of Washington’s convictions, would be the same if the opinion ended before the first mention of harmlessness on page 583.
Each of Washington’s first two trials ended in a mistrial because neither of the two juries was able to reach a unanimous verdict. The jury in the third trial, at which Washington was ultimately convicted, also stated, at one point, that it was unable to agree. Under these circumstances, I do not believe that we should opine (unnecessarily) on the issue of harmlessness. In all other respects, I am pleased to join Judge Reid’s persuasive opinion. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487223/ | WAGNER, Chief Judge:
Appellant, Vonn Washington, was charged with one count of first-degree premeditated murder (D.C.Code §§ 22-2401, -8202 (1996)),1 two counts of assault with intent to kill while armed (AWIKWA) (D.C.Code §§ 22-501, -3202 (1996)),2 three counts of possession of a firearm during a crime of violence (PFCV) (D.C.Code § 22-3404(b) (1996)),3 and one count of carrying a pistol without a license (CPWL) (D.C.Code § 22-3404(a) (1996)).4 Following a jury trial, appellant was found not guilty of premeditated murder and AWIK-WA, but convicted, respectively, of the lesser-included offenses of involuntary manslaughter while armed and assault with a deadly weapon (ADW). He was also convicted of CPWL and all three counts of PFCV. He argues for reversal on the grounds of: (1) improper and prejudicial prosecutorial argument; (2) exclusion from evidence of a learned treatise; and (3) conviction of CPWL, which he contends is unconstitutional under the Second and Fifth Amendments. Appellant also argues, and the government concedes, that his three PFCV convictions merge. Finding no reversible error related to appellant’s first three arguments, we affirm the convictions, and we remand to the trial court with instructions to vacate two of the PFCV convictions.
I.
A. Factual Background
The government presented evidence showing that on July 10, 1996, appellant, intending to shoot Kevin Jackson, shot and killed his best friend, Kenneth Anderson. At about this time, there were two rival groups in the area of Wayne Place, Southeast, and the shooting arose out of a feud between them. Kevin Jackson testified that he associated with a group which included Antonio West and his friends, Aaron and “Poo.” Appellant and Anderson were a part of another group. Jackson testified that about a week before Anderson was killed, he was in the area with West, Aaron, Poo and Shawn when shots were fired. Poo and Aaron returned the fire, and Aaron was hit in the leg. Jackson said that his car was torched after the shooting on Wayne Place.
According to Jackson, the night that Anderson was killed, Jackson was at home with his little brother, Poo, Antonio, and others. He went outside to meet a friend, Mike Ko, who parked his Land Cruiser right in front of Jackson’s house. Jackson entered the vehicle, and while they were talking, Anderson drove up in a white au*1086tomobile. Appellant was in the front passenger seat. Jackson testified that he saw Anderson and appellant raising their pistols, heard gunshots, ducked and started firing back. Jackson said that the vehicles were only a couple of feet apart and facing in the opposite directions. Jackson testified that he fired his .38 revolver basically out of the window, but Ko, who also had a weapon, did not fire at all. Jackson said that he did not shoot downward because he was firing over Ko’s back, and he was afraid of hitting him. Jackson further testified that the Land Cruiser was taller than the car in which Anderson and appellant were sitting, with the top of the smaller car’s roof reaching only up to the mirror of the Land Cruiser. The Land Cruiser’s driver’s side window and front passenger side window were shattered. Jackson said that glass from the vehicle went into his eyes, causing him to believe that he had been shot. After emptying his five-shooter revolver, Jackson and Ko jumped out of the car, ran around the corner, and hid behind a building. According to Jackson, Anderson’s car drifted off slowly. Frightened, Jackson and Ko ran back to the house and told the people there that Anderson and appellant had tried to kill them. Jackson testified that he did not call the police because he hoped that those involved would reach an understanding, since they had all grown up together.
Jackson testified that he got rid of the .38 revolver. In searching Jackson’s house pursuant to a warrant, the police found a .25 caliber gun, bullets of the same caliber and .9mm ammunition, which he said he had kept because he was told they might fit a .380 weapon that he had owned. Jackson also acknowledged having .45 and Mac-90 shells, although he denied ever having weapons of that make. Appellant testified that he was not involved in the feud because he considered Jackson and the others to be friends. According to appellant’s testimony, the night of the shooting, Anderson asked him to go with him while he attempted to “squash” the differences between the two feuding groups. Anderson was driving his white 1986 Grand Prix, and appellant was in the passenger seat. When they arrived at the corner of 25th and Savannah Street, S.E., they spotted Ko and Jackson. Anderson handed appellant a ,9mm Smith & Wesson handgun, and Anderson was armed with a .9mm pistol manufactured by Ruger. Appellant testified that Ko rolled down his window until about four inches remained up, and Anderson started talking to Ko and Jackson. He said that he saw a burgundy Jetta automobile behind the car, and turned the rearview mirror toward him to the point that Anderson could not use it.5 Appellant testified that Aaron and “Pooh” got out of the Jetta, and he told Anderson to pull off. According to appellant, shots were fired, and he returned the fire. Appellant testified that he had turned his upper body to the left, where the Land Cruiser was, and shot out “through the back” of that vehicle. When he told Anderson to drive away, he realized that the car was “coasting.” He saw Anderson “slumped over,” with blood coming from the back of his head. While still in the passenger’s seat, appellant drove the car to Southeast Community Hospital. He described how he was trying to hold Anderson’s head up while driving. Appellant parked the car at the hospital and ran away, leaving his friend in the vehicle.
Appellant testified that he did not call police. Six or seven days after the shooting, however, he was contacted by prosecutors and eventually spoke to them. He *1087testified before the jury that he told the prosecutors that he had a .357 revolver because he knew that the .9mm would leave shell casings in the car, whereas the .357 would not. He also told the prosecutors that he was not in the car and did not see anything.
B. Forensic Evidence
Dr. Jacqueline Lee, deputy chief medical examiner for the District, who qualified as an expert in forensic pathology, testified that Anderson’s death was a homicide caused by a gunshot wound to the head. A .9mm Luger, Winchester Western, silver-tipped, metal jacket bullet and fragments were recovered from Anderson’s brain. Based on Dr. Lee’s review of the autopsy, she concluded that the bullet had a “very tight spin,” meaning that it was unlikely that it made contact with any object before hitting Anderson in the head. She testified that the trajectory of the bullet was upward, traveling from the back to the front of the head and upward. She testified that the circumstances were consistent with a shot fired by the passenger (appellant) and hitting the driver, Anderson, if the driver was looking out of the window.
Dr. Lee testified that the photograph of the decedent and autopsy report show an absence of stippling which could indicate that the muzzle of the gun was twenty to twenty-four inches away from the body, or that it was closer and something blocked the gunpowder from being deposited.6 She indicated that her estimates were based on the type of gun powder, as well as the type of gun and that the distance at which stippling would occur depends upon several variables, such as the type of gun, type of gun powder, and length of the gun. She said that hair around the wound would impact the presence of gun powder and that any soot could have been washed away when Anderson’s wound was cleaned at the hospital. However, she stated that while soot can be washed away, stippling cannot because it is a burn to the skin. Dr. Lee acknowledged that although hair can affect the amount of visible stippling, Anderson had closely cropped hair, making the scalp visible at some points. Dr. Lee testified that the decedent’s wound was not consistent with the bullet passing through a door panel of a car or glass because the bullet would have been deformed.
Mr. Leon Krebs, who qualified as an expert on gunshot residue, firearms and ammunitation identification, and trajectory analysis, testified that the .9mm cartridges in question are loaded with disk or flake powder. He stated that in the case of flake powder, stippling would occur if the muzzle of the gun was within twelve inches of the victim’s skin. Krebs also testified that Anderson’s wound was consistent with a shot being fired from the passenger seat of the car striking the driver in the head. Krebs testified that, considering that the .9mm silver-tipped bullet in this ease was propelled by flake or disk powder, one would expect to see stippling only if the gun had been fired within a distance of twelve inches of the decedent. Krebs testified that since the decedent’s wound had a fairly round margin of abrasion, it was most likely caused by an intact bullet passing through the skin. He testified that a regular or circular wound and the lodging of the core and jacket of the bullet inside the decedent’s brain, as the evidence *1088showed in this case, indicates that the bullet had not passed through any intermediate targets before striking the victim.7
II.
Appellant argues that the prosecutor’s closing argument was improper and prejudicial in that it: (1) appealed to the sympathy of the jury, and (2) included facts not in evidence. The government responds that the challenged argument was based properly on the evidence or reasonable inferences therefrom. The government contends that, in any event, appellant was not prejudiced by the argument.
A. Legal Standard
When reviewing claims of improper prosecutorial argument, we determine first whether the challenged argument is improper. Burgess v. United States, 786 A.2d 561, 570-71 (D.C.2001) (internal citation omitted), cert. denied, 5B7 U.S. 854, 123 S.Ct. 210, 154 L.Ed.2d 88 (2002). If appellant has made a timely objection to the argument, then we must determine whether the court’s error, if any, in overruling the objection was harmless under the standard set forth in Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Clayborne v. United States, 751 A.2d 956, 968 (D.C.2000). Under that standard, we consider whether we can say “with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error[.]” Koteakos, 328 U.S. at 765, 66 S.Ct. 1239. In making that determination, we “consider the gravity of the impropriety, its relationship to the issue of guilt, the effect of any corrective action by the trial judge, and the strength of the government’s case.” Burgess, 786 A.2d at 570 (citations and internal quotations omitted). If appellant did not object, then our review is for plain error. Id. (citing McGrier v. United States, 597 A.2d 36, 41 (D.C.1991)). Under that standard, this court will reverse only if the defendant’s substantial rights were so clearly prejudiced as to jeopardize the fairness of the trial. Hunter v. United States, 606 A.2d 139, 144 (D.C.1992) (citations omitted).
B. Argument Concerning Julia Lane
The government presented the testimony of Julia Lane, who lived in the area of the shooting. Ms. Lane testified that she was at home on the night of the shooting with her sixteen-month old son, when she heard a loud crash that sounded like a breaking dish. The next morning she saw broken glass and a hole in the window shade that she thought to be a bullet hole. Ms. Lane called the police who came and found a bullet near her son’s high chair. Over defense objection, the trial court precluded any general reference to what might have happened to Ms. Lane and her child, but ruled that the prosecutor could use the incident to illustrate transferred intent as the prosecutor had requested. The prosecutor then argued that “[appellant] would have been just as guilty of shooting someone in Julia Lane’s apartment as he ... is guilty of shooting at and trying to kill Kevin Jackson and Michael Ko. He’s also guilty of the murder of his best friend, Kenny Anderson.” Appellant argues that permitting this argument was error because: (1) it appealed to the passions and prejudice of the jury; (2) it was not necessary for an explanation of the concept of transferred intent; and (3) it *1089implicitly asked the jury to convict despite appellant’s self-defense claim because there was no evidence of self-defense related to “the hypothetical shooting of Ms. Lane or her son.”
A prosecutor should refrain from making statements that are designed to inflame the passions of the jury. See Butts v. United States, 822 A.2d 407, 420 (D.C.2003) (citing Nelson v. United States, 601 A.2d 582, 587-88 (D.C.1991)). To that end, prosecutors are prohibited from making statements that “attempt to appeal to the jurors’ sympathies[J” Carpenter v. United States, 635 A.2d 1289, 1296 (D.C. 1993). Prosecutorial remarks that urge the jury to render a verdict based upon the larger social policy implications of the crime are improper. See Hart v. United States, 538 A.2d 1146, 1150 (D.C.1988) (finding improper the prosecutor’s argument to find defendant guilty “for everything [he] did” was improper, as it asked jurors to render a verdict based upon a larger societal policy).
The argument calling the jury’s attention to appellant’s actions that placed Ms. Lane and her infant son in harm’s way tends to arouse the passions of the jury. Viewed in context, the reference to Ms. Lane’s apartment was a fleeting, even if an unnecessary, effort to explain the concept of transferred intent. The main focus of the prosecutor’s transferred intent8 explanation was upon the person appellant intended shoot, Jackson, and the actual victim, Kenny Anderson. However, this hypothetical “example in argument,” as the trial court described it, picked up on a questionable theme of the prosecutor’s opening statement, to which appellant had objected, that Ms. Lane was one of appellant’s “unintended victims.” These references were more likely to evoke an emotional reaction and deflect the jury from its task than they were to elucidate the concept of transferred intent. Nevertheless, given the brevity of the prosecutor’s remarks, their context, and the strength of the government’s case, we are persuaded that any error of the trial court in not taking corrective action was harmless.
C. The Rear View Mirror and Veracity Arguments9
Appellant argues that the prosecutor engaged in improper rebuttal argu*1090ment by: (1) misstating evidence concerning whether the position of the rear view mirror in the vehicle that appellant was driving had been moved; (2) guaranteeing that, contrary to appellant’s testimony, the rear view mirror had not been moved; and (3) urging the jury to conclude from these circumstances that appellant was not telling the truth when he said he was watching Aaron and “Poo” through the mirror. He contends that the argument was improper because it was not based on the evidence, suggested essentially that appellant was lying, and expressed the prosecutor’s personal opinion.
Several principles guide our disposition of these arguments. First, a prosecutor may comment on the evidence presented and make reasonable inferences based thereon. Tuckson v. United, States, 364 A.2d 138, 142 (D.C.1976) (citing Mallory v. United States, 178 A.2d 918, 919 (D.C.1962)). However, “ ‘[i]t is improper for an attorney to make an argument to the jury based on facts not in evidence and not reasonably inferable from the evidence.’ ” Russell v. United States, 701 A.2d 1093,1099 (D.C.1997) (quoting Morrison v. United States, 547 A.2d 996, 999 (D.C.1988)). Second, what constitutes an improper comment on the credibility of a testifying witness is sometimes difficult to discern, but such comments “will be within the acceptable range as long as it is in the general nature of argument, and not an outright expression of opinion.” Irick v. United States, 565 A.2d 26, 36 (D.C.1989) (citing Logan v. United States, 489 A.2d 485, 490-91 (D.C.1985) (other citations omitted; emphasis in original)). “[T]he key inquiry is whether the attorney is commenting on the evidence, which he may do, or expressing a personal opinion, which is taboo.” Id. at 36. With these principles in mind, we consider each of appellant’s challenges to the argument.
(1) Rear View Mirror Argument
In closing argument, the prosecutor argued that, contrary to appellant’s version of events, the mirror was never touched while appellant drove his friend to the hospital after he was shot, and he “guaranteed” that appellant had not touched it.10 *1091Appellant contends that the record does not support the inference that the mirror had not been moved, while the government contends that it was a fair inference from the testimony and a photograph of the vehicle taken after appellant hurriedly left the decedent at the hospital, which showed the rear view mirror in its customary position.
Appellant testified that before the shooting, he had moved the mirror so far towards the passenger seat where he was seated that the driver, Anderson, could not see what was going on behind him. Appellant then described a fast developing scene during which he warned Anderson of the approach of Aaron and “Pooh” from the rear, which he was observing through the rearview mirror. He testified that shots rang out, and then he and Anderson pulled their weapons. He testified that the car swerved, and Anderson slumped over the wheel, requiring appellant to grab the wheel and drive to the hospital, while trying to hold Anderson up. The evidence showed that appellant got out of the vehicle and immediately ran away. The government argues, persuasively, that in order to credit appellant’s version of the events, the mirror had to be placed back into its customary position between the time appellant used it to observe Aaron and Poo approaching from the rear and the time that he arrived at the hospital where he left his mortally wounded friend. This evidence, along with evidence that the mirror was in its customary position when photographed at the hospital by the crime scene officers, is sufficient to permit a reasonable inference that no opportunity was shown when appellant could have moved the mirror back to its customary position, and therefore, it had not been turned toward appellant as he described. The prosecutor is permitted to argue reasonable inferences from the evidence. Streater v. United States, 478 A.2d 1055, 1059 (D.C.1984) (citing Tuckson, supra, 364 A.2d at 142) (other citation omitted). It does not appear that the prosecutor treaded into the area of impermissible speculation with this argument. See Claybome, supra, 751 A.2d at 969 (citation omitted). The argument had a basis in the evidence and reasonable inferences from it. Therefore, we find no abuse of discretion in the trial court’s decision to permit the argument over appellant’s objection.
(2) Guarantee Language
Appellant also contends that by using the word, “guarantee,” the prosecutor improperly injected his personal opinion and implied that he had personal knowledge of the events he was summarizing. The government contends that the statement is not an outright expression of opinion and did not suggest any personal knowledge. The government concedes that such phrases as “I guarantee” should be avoided because of their potential for confusion. It contends, however, that the prosecutor was not expressing a personal opinion or *1092indicating that he had personal knowledge of the events when he used this language.
As stated previously, “the key inquiry is whether the attorney is commenting on the evidence, which he may do, or expressing a personal opinion, which is taboo.” Irick, supra, 565 A.2d at 36. We agree that the comment here was not an outright expression of opinion. In context, the language appears to have been used for emphasis in making arguments based on the evidence. As such, it remained within an acceptable range of argument. See id. (“A comment will be within the acceptable range as long as it is in the general nature of argument and not an outright expression of opinion.”) (citing Logan, supra, 489 A.2d at 490-91 (other citation omitted) (emphasis in original)).11 Therefore, we find no error, and clearly no plain error.12
Washington also contends that the prosecutor improperly indicated that he was not telling the truth by using phrases such as, “that is all not the truth,” “[everything he told you about Aaron and Poo being out there that day, is not the truth,” and “his entire house of cards comes tumbling down with all the other things he told you up there that weren’t the truth, but this is one he can’t get away from.”
“[C]haracterizing testimony as incredible is an accepted and proper form of comment on contradictory testimony” so long as that characterization has an evidentiary basis. See Irick, supra, 565 A.2d at 35 (citing Dyson v. United States, 418 A.2d 127,130 (D.C.1980)). Here, the prosecutor’s comments were based upon logical inferences from the evidence. The prosecutor was asking the jury to conclude that Aaron and Poo had not been out there that day, as some witnesses testified, and therefore appellant was not forthcoming about the events. The prosecutor made his point using facts and inferences from the evidence, including the testimony of Jackson and Exhibit 65.
(3) “House of Cards” Argument
Finally, appellant contends that the prosecutor erred in referring to his testimony as a “house of cards” that had come tumbling down, and otherwise commenting on his veracity, since the references implied that Washington was lying. Again, the government argues that these statements were fair comments on the evidence. Specifically, the government notes that appellant admitted that he had not been forthcoming initially about his role in the offense, and that defense counsel so stated in closing argument. Therefore, the government contends that it was justified in commenting on Washington’s veracity. The government additionally argues that even if the remark were improper, no prejudice flowed from it, as defense counsel used “equally explicit language” in attacking the government’s witnesses.
This argument was a fair argument on appellant’s credibility based on *1093the evidence. Counsel is not precluded “from arguing that the testimony of a particular witness should not be believed when the jury could reasonably draw that inference from contradictory evidence in the record!.]” McGrier, supra, 597 A.2d at 43. In this case, appellant admitted in testimony that he did not tell the truth initially about his involvement in the shooting. Although we have condemned assertions by counsel that a witness lied on the witness stand, “saying that a witness’ testimony is incredible is permissible when that is a logical inference from the evidence and not merely the opinion of counsel.” Id. (citing Inch, supra, 565 A.2d at 35). The “house of cards” formulation was fair comment, given the many bases in the evidence to challenge appellant’s credibility.
III.
Appellant argues that the trial court abused its discretion by precluding defense counsel from reading to the jury from a learned treatise, which the government’s firearms expert had acknowledged was an authoritative source.13 He contends that he complied with the foundational requirements for admission of the evidence under Fed. R. Evid. 803(18), which he urges this court to adopt, if it is not already applicable. The government responds that the trial court properly precluded admission of this evidence because appellant failed to confront the expert witness with the particular passages that he sought to present to the jury.
A. Factual Background
Before the defense rested its case, defense counsel sought to read into evidence, but not send back to the jury, statements from a treatise entitled Gunshot Wounds by Vincent Dimaio. Mr. Leon Krebs, who testified as an expert witness on gunshot residue, firearms and ammunition identification, and trajectory analysis, had acknowledged during testimony that he had reviewed this treatise and that it was an authoritative source.14 During cross-examination, defense counsel did not confront the witness with a particular passage from the book. However, he contends that he adequately met the foundational requirements of Fed. R. Evid. 803(18) by calling the witness’ attention to specific studies done with .38 and .22 caliber ammunition that were published in the Dimaio treatise, eliciting some of the results, and having the witness confirm that he knew of no other scientific studies that had produced different results. Pertinent portions of the testimony appear in the margin.15 Before the defense rested, counsel *1094requested the court’s permission to read to the jury from the Dimaio treatise, citing as authority Fed. R. Evid. 803(18). The government objected, stating that Rule 803(18) permits the introduction of treatises to the extent called to the attention of an expert. The court precluded admission of the evidence, noting that although the treatise had been called to the witness’ attention, its meaning would have to be at least the subject of direct or cross-examination of the expert. The court also observed by way of example that “you can’t just call a witness to say this [is] in the Encyclopedia Britannica and it’s [a] well-recognized authority in its field and then go pick anything out of the encyclopedia.” Appellant argues that the court erred in its ruling and that he was prejudiced thereby.16
*1095B. Applicable Legal Principles
The decision to admit or exclude evidence is committed to the trial court’s discretion. See Plummer v. United States, 813 A.2d 182, 188 (D.C.2002) (citing Mercer v. United States, 724 A.2d 1176, 1182 (D.C.1999)). Thus, we review its evidentiary rulings for an abuse of discretion. Id. In determining whether the trial court has abused its discretion in making an evidentiary ruling, we consider “whether the exercise of discretion was in error and, if so[,] whether the impact of that error requires reversal.” {James W.) Johnson v. United States, 398 A.2d 354, 367 (D.C. 1979).
Federal Rule of Evidence 803(18) governs the admission of learned treatises as an exception to the hearsay rule in the federal courts. Dartez v. Fibreboard Corp., 765 F.2d 456, 465 (5th Cir.1985). Rule 803(18) permits the use of learned treatises as substantive evidence “ ‘to the extent called to the attention of an expert witness upon cross-examination or relied upon by him in direct examination ...,’ as long as it is established that such literature is authoritative.”17 Tart v. McGann, 697 F.2d 75, 78 (2d Cir.1982) (quoting Rule 803(18)). The court explained, however, that the Advisory Committee to the rules had rejected admission of such evidence independent of the expert’s testimony, and thus, “the Rule permits the admission of learned treatises as substantive evidence, but only when ‘an expert is on the stand and available to explain and assist in the application of the treatise ....’” Id. (citing Fed. R. Evid. 803(18) advisory committee note). Additional references in the Advisory Committee’s note indicate that the intention was to permit the use of the treatise in connection with cross-examination. In that regard, the Note states, “[t]he greatest liberality is found in decisions allowing use of the treatise on cross-examination, when its status as an authority is established by any means .... [Rule 803(18)] is hinged upon this last position .... ” Allen v. Safeco Ins. Co. of America, 782 F.2d 1517, 1520 (11th Cir.1986) (quoting Fed. R. Evid. 803(18) advisory committee note) (alterations in original). The reason for the rule is to avoid jury misunderstanding and misapplication of technical information in the treatise or article that might occur if the jury were permitted to consider the publication itself “instead of receiving the information through the testimony of an expert in the field.” Dartez, supra, 765 F.2d at 465 (citation omitted).
Although this court has adopted some of the Federal Rules of Evidence,18 it *1096has not formally adopted Rule 808(18). However, this court has cited the rule as authority, in part, for rejecting summarily an argument that the trial court erred in refusing to admit into evidence two medical journal articles to impeach the testimony of a defendant physician. See Quin v. George Wash. Univ., 407 A.2d 580, 581 (D.C.1979). In Quin, a wrongful death and survival action based on medical negligence, both of the decedent’s surgeons had testified to several medical journal articles in support of their opinions on causation.19 Id. at 581-82. We concluded' that there was no error in excluding the articles, which had been used extensively on redirect and re-cross, citing “2 JONES ON EVIDENCE § 12.31 (1972) (‘the prevailing view of the courts is that books or treatises which deal with [medicine, surgery, and mechanics] are barred by the rule against hearsay as evidence of facts or opinions stated therein, no general exception having been developed to make them admissible’)[.]” Id. at 581 n. 3. This court has also cited Rule 803(18) with a parenthetical reference to that portion of the rule that provides that “statements contained in learned treatises may be read into evidence but may not be received as exhibit[s].” Id. Thus, as one commentator noted, the federal rule “appears consistent with D.C. law and practice.” GRáae & FitzpatRick, The Law of Evidence in the DistRict of Columbia, 8-112 (2002). We agree. Therefore, we consider the argument raised by appellant applying Fed. R. Evid. 803(18).
C. Analysis
Appellant acknowledges that he did not confront the expert witness, Mr. Krebs, with the specific passages he sought to read from the Dimaio book. However, he urges this court to, conclude that confrontation of the expert with the specific language a party seeks to have admitted under the rule is not required. The government argues that there is no authority supporting appellant’s argument and that case precedents adhere to an interpretation to the contrary.
The plain language of Rule 803(18) and the principles previously outlined tend to support the interpretation advanced by the government. The rule states explicitly, “[t]o the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises ... [are not hearsay].” Fed. R. Evid. 803(18) (emphasis added). Thus, the admissibility of the subject “statements” is dependent upon meeting one of the requirements expressed in the disjunctive in the rule. Like the rule for statutory construction, “words of a [rule] should be construed according to their ordinary sense and with the meaning commonly attributed to them.” Thompson v. District of Columbia, 863 A.2d 814, 817-18 (D.C.2004) (citation and internal quotations omitted). This language plainly shows that to qualify for admission under the rule, it is the particular “statement ] contained in the treatise! ]” that must be called to the attention of the expert. FED. R. EVID. *1097803(18). Federal courts have so interpreted the rule. See, e.g., Tart, supra, 697 F.2d at 78 (Rule 803(18) “permits the admission of learned treatises as substantive evidence, but only when ‘an expert is on the stand and available to explain and assist in the application of the treatise ....”’) (citation and internal quotations omitted); United States v. McQuiston, 998 F.2d 627, 629 (8th Cir.1993) (The court did not abuse its discretion in rejecting a proffered periodical article not offered in connection with any witness’ testimony.). Some states with a similar evidentiary rule have concluded likewise that the expert’s attention must be directed not just to the treatise, but to the particular statement in the treatise sought to be placed before the jury.20 Thus, these state decisions are consistent with the purpose of the federal rule, which is to avoid jury confusion by prohibiting the introduction of treatise material without expert interpretation. Fed. R. Evid. 803(18) (advisory committee to ¶ 18). If the expert’s attention is not drawn to the specific material while on the stand, the material could be read to the jury without the benefit of expert guidance. Under the interpretation of the rule that appellant advances, the mere mention of a treatise by the expert would be sufficient to justify reading it later during the trial. However, it has been noted that such a “hide-the-ball” approach is disfavored. Mueller & Kirkpatrick, Evidence § 8.60, at 1263 (1995).21 Requiring speei-ficity assists the jury and protects the integrity of the adversarial process. Id.
Appellant contends that he sufficiently met the requirements for admissibility by having the expert witness acknowledge the book as authoritative and by eliciting from him that he knew of no other scientific studies that produced different results for .38 and .22 ammunition than those appearing in the Dimaio book. The question is whether defense counsel’s questioning was sufficient to call the witness’ attention to the specific portion of the treatise that he sought to call to the jury’s attention. Appellant did question Mr. Krebs about the Dimaio book, and he addressed during cross-examination some part of it. We recognize that cross-examination can be sufficient to meet the attention-calling requirement. Evidence, supra, § 8.60 at 1263. However, a passing reference is insufficient, and “if [counsel] plans to make substantive use of the material by reading from it and arguing that it proves what it says, [counsel] has to ask the expert to explain the passages and relate them to what he conveys in his testimony.” Id.
In the present case, the attention-calling requirement was not adequate to permit admission of the material as substantive evidence. Here, counsel did not call the expert’s attention to the pages of the Dimaio book from which he sought to read, apparently pages 113-114.22 Al*1098though some of defense counsel’s questioning was based on information that appears in the book, it is not clear that Mr. Krebs’ responses were based on the specific pages of the treatise defense counsel wanted to read. Appellant did not elicit the expert’s interpretation of that portion of the treatise prior to seeking to read it to the jury. The failure to ask the expert specifically about the particular portion of the treatise deprived the witness of the opportunity to explain, counter or interpret those particular passages concerning distances that defense counsel wanted to present to the jury. Mr. Krebs testified that tests that he conducted and a book edited by a Dr. Spitz differed slightly from Dimaio on distances, but were well within his ranges. Since Mr. Krebs’ attention was not called to the part of the book that counsel asserts differs from Mr. Krebs’ opinion, Krebs had no opportunity to reconcile or explain any differences and their significance, if any, to the issue or to identify other portions of the text that might have been relevant to his position. For these reasons, we conclude that the trial court did not abuse its discretion in concluding that the examination was not sufficiently specific to meet the foundational requirement for reading the portions of the treatises offered as proof of the matter asserted.23
IV.
Appellant argues for the first time on appeal that his convictions of carrying a pistol without a license should be vacated on constitutional grounds. Specifically, he contends that the statute under which he was convicted, D.C.Code § 22-3204(a) (1981) (recodified as D.C.Code § 22-4504(a) (2001)) unconstitutionally infringes upon his rights under the Second Amendment to bear arms and his due process rights under the Fifth Amendment. He contends that the District’s licensing statute constricts too narrowly the class of citizens to whom a license is available and is unconstitutionally vague. The government argues that appellant waived these arguments because he did not raise them in the trial court and they fail on the merits, in any event.24
Appellant concedes that he did not challenge the constitutionality of the CPWL statute in the trial court. We have rejected as waived such belated constitutional challenges. See Hager v. United States, 856 A.2d 1143, 1151 (D.C.2004) (citing Mitchell v. United States, 746 A.2d *1099877, 885 n. 11 (D.C.2000)). Even if we were to review for plain error,25 appellant cannot prevail because his arguments are foreclosed by this court’s binding precedents.26 See Sandidge v. United States, 520 A.2d 1057, 1058 (D.C.1987) (holding that D.C.Code §§ 6-2311, 6-2361 and 22-3204 (1981) (CPWL statute) do not violate the Second Amendment); see also Hager, 856 A.2d at 1151 (noting Second and Fifth Amendment challenges foreclosed by San-didge and Austin v. United States, 847 A.2d 391, 393 (D.C.2004) (rejecting due process challenge)).
V.
Finally, appellant argues that his three convictions of PFCV merge because they result from a single act of violence during which there was possession of a single weapon. The government concedes that in light of Nixon v. United States, 730 A.2d 145, 153 (D.C.1999), appellant can stand convicted of only a single count of PFCV. We agree.
For the foregoing reasons, we affirm the judgment of the trial court and remand with instructions for the court to vacate two of the convictions of PFCV.
So ordered.
. Recodified at D.C.Code §§ 22-2101, -4502 (2001).
. Recodified at D.C.Code §§ 22-401, —4502 (2001).
. Recodified at D.C.Code § 22-5204(b) (2001).
. Recodified at D.C.Code § 22-5204(a) (2001).
. Both Ko and Jackson denied seeing a burgundy Jetta in the area.
. Dr. Lee explained that:
[s]tippling is the term used to help us indicate the distance the ... muzzle of the gun is from the skin when a bullet is fired. Stippling is caused by unburned or partially burnt particles of gun powder making contact with the skin in either burning the skin or because of the impact splitting off the top layer of skin, so there are little abrasions to the skin ....
. Additional facts related to the parties’ contentions appear in the discussion of their related arguments.
. The relevant portion of the argument proceeded as follows:
When you think about the evidence in this case, remember also that the whole idea of intent in this case deals with transferred intent. Okay. Because nobody is saying that the defendant intended to kill his best friend, Kenny Anderson. That was a mistake. He intended to kill Kevin Jackson. Intended to shoot at Kevin Jackson and Michael Ko. The intent transfers, the intent to shoot at these men or just Kevin Jackson transfers. So that he is guilty of the intent that ... is needed in order to show that he is guilty of the murder of Kenny Anderson. When you think about transferred intent, remember Julia Lane. Remember what it’s all about. Julia Lane is right over here. The transferred intent theory is in place because it’s trying to show that people are just as guilty of shooting and injuring someone they didn’t intend to shoot as they are of someone they intended to shoot. He would have been just as guilty of shooting someone in Julia Lane’s apartment as he
[Defense Counsel]: Objection, speculation. [The Court]: Overruled. It’s an example in argument.
[Prosecutor]: Just as he is guilty of shooting at and trying to kill Kevin Jackson and Michael Ko. He’s also guilty of the murder of his best friend, Kenny Anderson. Thank you.
. We address these arguments under the same subsection because they occurred close together. Appellant contends that the issues are so intertwined that preservation of one by objection preserves the objection for the other. There may be circumstances where raising one issue fairly notifies the trial court of *1090additional issues. See Ford v. Georgia, 498 U.S. 411, 418, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991); Trevino v. Texas, 503 U.S. 562, 567, 568, 112 S.Ct. 1547, 118 L.Ed.2d 193 (1992). However, “we have long applied the rule that '[qjuestions not properly raised and preserved during the proceedings under examination, and points not asserted with sufficient precision to indicate distinctly the party’s thesis, will normally be spumed on appeal.’ ” Card v. United States, 776 A.2d 581, 587 (D.C.2001) (quoting Womack v. United States, 673 A.2d 603, 612 (D.C.1996)) (other citations omitted; emphasis and alteration in original). Therefore, we consider the preservation issue applying this longstanding rule.
. The argument proceeded as follows:
[Tlhere's one thing out there that’s going to prove [Washington]'s telling you something that ain’t the truth. Certain things don’t lie. People can come in here and lie. Evidence doesn’t lie. Remember back when Mr. Washington said [what] he was doing just before the shooting. He was seated in the car, worried about Aaron and Pooh. That's what he says, right. Of course, Casey and — Casey Dunmore and Kevin Jackson tell you Pooh is not out there. Defendant told you I changed the rear view mirror. I looked in that rear-view mirror to look back....
[H]e’s holding him like this and driving, driving, driving. Get to the hospital. I get there; I stop. The guard comes out. I get out and run away. You know what, that is all not the truth. How do you know that? The rear view mirror. Never been touched. In the spot where Kenny Anderson had it when he was shot in the head, where he had it when he got in the car that day. [Defense Counsel]: Objection.
[Prosecutor]: Never been moved.
[The Court]: Overruled. It’s argument. [Prosecutor]: Not in a position where Vonn Washington can see back. It’s where the *1091driver of that car would have the rear-view mirror. Everything he told you about Aaron and Pooh being out there that day, is not the truth. And Exhibit 65 proves that to you. That mirror has never been touched. [Defense Counsel]: Objection.
[The Court]: Overruled. He doesn’t know about whether it’s touched but -
[Prosecutor]: It may have been touched before. I guarantee who didn't touch it was Vonn Washington that night. Vonn Washington didn’t move that mirror. Why is that important? Because that proves to you that Aaron and Pooh weren’t out there. Vonn Washington wasn’t looking backwards. His entire house of cards comes tumbling down with all the other things he told you up there that weren’t the truth, but this is one he can’t get away from.
. See note 10, supra, for quotations from this argument.
. Appellant seems to argue that since he objected to that part of the argument concerning the rear view mirror, the objection to the guarantee language was preserved. However, appellant did not raise any objection to the words used, which come after his objection. His objection focused specifically upon the argument related to the position of the rear view mirror. Absent any objection to the use of the words, it cannot be said that the defense fairly apprised the court of the fact that he took issue with the language. See Hunter, supra, 606 A.2d at 144 (Objections must be sufficiently specific to fairly apprise the court of the issue upon which it is being asked to rule to preserve the objection.) Absent preservation of the objection, we review for plain error (citations omitted).
. Appellant concedes that this issue relates only to the involuntary manslaughter while armed count and related possession of a firearm. during the commission of a crime of violence.
. During questioning by the prosecutor, Mr. Krebs acknowledged familiarity with Dimaio's book, GUNSHOT WOUNDS, and that it was an authoritative source. Subsequently, defense counsel inquired of the witness about the book as follows:
Q. Have you also read various books and manuals concerning gunshot wounds?
A. Yes, two manuals that address that very complexly and completely are Dr. Dimaio’s book, Gunshot Wounds, and also ... Dr. Werner Spitz’s book [...,] Medicai/Legal Investigation of Death. Both gentlemen address wound configurations in great detail. Q. Have you had a chance to read those texts or portions of those texts in the past? A. Yes, I have_
.Mr. Krebs acknowledged testifying in an earlier proceeding that one would find stippling (powder tattooing) out to at least eighteen inches from the weapon fired. Additional testimony by defense counsel of the witness relevant to the present evidentiary issue developed as follows:
Q.... [I]s there something that has caused you to change your opinion?
*1094A. Initially when I was asked that question back in January, it was a general inquiry and there was no indication of the type of powder. And considering that 12 to 24 inches was a medium range of fire, I incorporated both flake and ball powder and crushed ball powder into my estimate when I gave the answer of 18 inches.
Q. ... So when we're using the range of 12 to 24 inches, what you’re saying beyond 24 inches you would not expect to see powder tattooing?
A. Beyond 24 inches, even beyond possibly 18 inches, or at contact ....
However, as the gun muzzle moves away from the skull in distance, there comes a point when tattooing can no longer occur, either because of the distance that the muzzle is from the victim’s scalp or the density of hair which can interfere with the travel or flight of powder as the gun is fired.
Q. ... [W]ith respect to calculating approximate distances, that’s a result of tests that have been performed in the field; is that correct?
A. That's correct.
Q. And so there are studies in the field as to what you would expect for different kinds of powder with respect to tattooing; is that right?
A. That's correct.
Q. Now, one of those studies is in the text ... that you referred to, that is, Dimaio Gunshot Wounds; right?
A. There are studies in Dimaio's book and also a study in the Warren Spitz book.
Q. With respect to Dimaio’s study, first of all, they found that with a .38 special that you could expect to find powder tattooing out to 60 centimeters; right?
A. That’s correct[.]
Q. That [is] 24 inches?
A. That's correct.
Q. And that also happened, powder tattooing, with flaked powder out to about 60 centimeters; right?
A. That’s correct.
Q. So are you aware of other studies that would produce different results than the study reported by Dimaio?
A. Dr. Spitz came up with a different opinion as with regards to distance, and tests that I have conducted using tissue and hair, I come up with distances that slightly differ from Dimaio but well within his ranges, as well as Dr. Spitz's ranges.
Q. ... Is there a particular reference source that you’re referring to [for the book edited by Dr. Spitz]?
A. Yes, the book edited by Dr. Spitz which is entitled the Medicai/Legal Investigation of Death.
Q. ... [A]re you aware as to whether or not that source actually lists the results of a particular study the way that Dr. Dimaio did?
A. No, it does not.
Q. ... Are you aware personally, leave your own studies and experience aside for just [a] moment, are you aware of any scientifically-conducted study that would produce — that did produce results different than Dr. Dimaio?
A. No.
. Appellant sought to show from the Dimaio treatise that stippling from ball powder can occur out to three feet, a greater distance than the twelve inches or less that the government's expert, Mr. Krebs, testified to on direct and greater than the estimate of eighteen inches that he gave at appellant’s first trial. In explaining his earlier estimate, Mr. Krebs explained that he "incorporated both flake and ball and crushed ball powder” into his *1095earlier estimate. Appellant contends that the information from the treatise was important to his case because no stippling was found around the decedent's wound, and the government contended that appellant shot the victim in the close confines of the front seat of a car.
. Under Fed. R. Evid. 803(18), the following is listed as an exception to the hearsay rule:
To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.
Fed. R. Evid. 803(18).
. See, e.g., (William) Johnson v. United States, 683 A.2d 1087, 1090 (D.C.1996) (en banc) (adopting policy of Fed. R. Evid. 403 ("evidence [otherwise relevant] may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice”)); Laumer v. United States, 409 A.2d 190, 192 (D.C.1979) (en banc) (adopting Fed. R. Evid. 804(b)(3) statements against penal interest). "While the decisional law of the *1096federal courts interpreting various rules of evidence often provide guidance, this court is the final authority for establishing the eviden-tiary rules for the Superior Court of the District of Columbia.” Id. at 195 n. 7.
. The factual details concerning the foundation laid for offering the journal articles into evidence cannot be gleaned from the opinion, no doubt because it was not the principal argument raised on appeal. See Quin, supra, 407 A.2d at 581 (indicating that the principal argument on appeal related to the trial court’s failure to instruct the jury on res ipsa loqui-tur).
. See, e.g., Echols v. State, 326 Ark. 917, 936 S.W.2d 509, 530 (1996) (identical to federal rule in relevant part; noting that the rule applies "to a particular statement from a treatise"); Commonwealth v. Sneed, 413 Mass. 387, 597 N.E.2d 1346, 1351 & n. 6 (1992) (accepting proposed rule, identical to Fed. R. Evid. 803(18), as relevant here, and requiring opponent to "bring to the witness's attention a specific statement in a treatise”).
. The Mueller & Kirpatrick book explains:
The thing to prevent is the hide-the-ball approach in which the proponent makes passing reference to the book or article (avoiding any real exchange with the expert) and trots it out later when the expert has left, either in argument or a read-to-the-juiy speech or by using a surrogate witness who cannot provide perspective.
Id. at 1263.
.Appellant's brief identifies these pages.
. Even assuming arguendo that the trial court abused its discretion in this evidentiary ruling, any error in producing additional evidence of the absence of stippling was harmless. First, both Dr. Lee and Mr. Krebs testified that the absence of stippling could be attributable not only to distance, but also to other factors. Second, appellant admitted that he fired his weapon, and the forensic and ballistic studies indicate that the trajectory would have been consistent with his position in the car. Although appellant notes that it was also consistent with a shot by Jackson under certain circumstances, more evidence points to the shot by appellant. The bullet was described by the experts as having a “tight spin,” meaning that it did not hit an intervening target. A shot by Jackson likely would have had to pass through the glass window of the Land Cruiser — which was shattered — thus preventing a tight spin, according to the testimony. Therefore, the additional evidence about stippling that appellant sought to offer was unlikely to influence the outcome of the trial, and any error was harmless. See Kotteakos, supra, 328 U.S. at 764-65, 66 S.Ct. 1239 (If we can say with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error, it is harmless).
. The District appeared in the case to address this issue, taking the position that appellant cannot prevail on his constitutional challenge under binding precedent.
. We will reverse for plain error "only in an extreme situation in which the defendant’s substantial rights were so clearly prejudiced that the very fairness and integrity of the trial was jeopardized.” Hunter, supra, 606 A.2d at 144 (citing Mills v. United States, 599 A.2d 775, 787 (D.C.1991)).
. See M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C.1971) (No division of the court may overrule another division; only the en banc court can accomplish that result.). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487224/ | GLICKMAN, Associate Judge:
Appellant Eric R. Washington was tried and convicted on charges of distribution of a controlled substance (cocaine) and possession with intent to distribute a controlled substance (cocaine) (“PWID”). His convictions must be reversed because the trial court admitted a Drug Enforcement Administration chemist’s substance analysis (“DEA-7”) reports, and refused to allow appellant to cross-examine the chemist in person, despite the government’s failure to furnish copies of the DEA-7 reports to appellant in advance of trial as required by D.C.Code § 48-905.06 (2001). These erroneous rulings were not harmless even with respect to the jury’s implicit guilty verdicts on the lesser-included offenses of attempted distribution of a controlled substance and attempted PWID. Accordingly, appellant must be afforded a new trial.
I.
Police arrested appellant on the afternoon of September 16, 2004, minutes after an undercover officer in a nearby observation post saw him appear to sell drugs to two men who were later identified as Franklin James and Charles Thomas. The observation post officer, Angelo Battle, watched as James and Thomas walked up to appellant, who was sitting in a yard in the 1500 block of Olive Street, N.E. Battle testified that James spoke with appellant and handed him some green bills that “appeared to be U.S. currency.” Appellant then went to a fence approximately twenty feet away, moved a brick, and picked up a small green bottle. He poured several “clear ziplock bags containing a white substance” into his hand, put some of the bags back in the bottle, restored the bottle to its hiding place, and returned to James. Appellant and James engaged in a “hand-to-hand transaction,” after which James and Thomas departed on foot. As Battle testified at trial, the contents of the green bottle “raised [his] suspicion;” he “identified the items as being a suspected narcotic, possibly crack cocaine or heroin.” Battle called in the arrest team, and appellant was promptly apprehended. In a search incident to his arrest, police recovered a crumpled $20 bill from appellant’s right front pants pocket and an additional $80 from his right rear pants pocket. Meanwhile, other officers stopped James and Thomas, who were still together. Thomas was found to be in possession of “one clear zip containing [a] white rocky substance.” 1 No incriminating evidence *38was found on James. At Battle’s direction, Officer Peter Shaw retrieved the green bottle underneath the brick by the fence. Inside the bottle, which was wrapped in black electric tape, were twelve small clear ziplock bags. These bags too contained a white, rocky substance. They were submitted along with the items seized from Thomas to a Drug Enforcement Administration (“DEA”) laboratory for chemical analysis.
At trial, the government relied on the DEA chemist’s analyses to prove that the white rocks contained a measurable amount of a controlled substance.2 The government did not call the chemist to testify in person, however. Instead, over appellant’s objection (as we discuss below), the court permitted the government to introduce the chemist’s written DEA-7 reports of his analyses. According to those reports, the twelve ziplock bags in the green bottle contained .72 grams of cocaine base, and the ziplock bag recovered from Thomas contained an unquantified residue of the same drug.
The government called Detective Anthony Washington to testify as an expert on the distribution and use of cocaine in the District of Columbia. He explained that sellers often keep their drugs in a hidden “stash” rather than on their person, and that sellers frequently employ “facilitators” to acts as liaisons with unfamiliar buyers. (The government’s theory at trial was that James served as such an intermediary between appellant and Thomas.) Detective Washington further testified that the ziplock bags of crack cocaine found in the green bottle were “specifically packaged for street distribution.” Based on the amount of cocaine as reported in the DEA-7, he estimated that each ziplock bag had a street value of $10 to $20. Finally, Detective Washington opined that possession of twelve ziplock bags of cocaine on the street at one time is more consistent with an intent on the part of the holder to distribute the drugs than to use them personally, because users typically limit their purchases to minimize the risk of buying counterfeit drugs:
Usually when the buyers go out and make purchases of crack cocaine [for personal use], they only buy between one to three bags.... The main reason is there’s no quality control out there. An individual go out [sic] and buy illicit drugs on the street, they [sic] don’t know what they’re buying. It could be from the best cocaine they purchased, to the point where it may not be cocaine at all. If the person buys something that is not cocaine, they can’t take it back to the drug dealer and say this is no good, the product is bad, give me my money back. It’s a big loss for them. They have to take it as a loss and move on. Normally this is why we don’t see individuals out there buying more than three bags at a time.
In his defense, appellant testified that he was on Olive Street visiting his brother *39and cousin when James, whom he knew, and another man stopped by. Appellant denied receiving any currency from James or selling drugs to anyone. He also denied walking over to the fence, retrieving anything from the green bottle, or possessing any ziplock bags of cocaine. Appellant admitted handing something to James, but he claimed that it was only a cigarette, not cocaine. He further stated that the money in his possession when he was arrested had been given to him by his sister. Appellant’s brother, cousin and sister testified and corroborated appellant’s account.
II.
Appellant’s principal claim — and the only one we need to address3 — is that he was prejudiced by the government’s failure to comply with the notice requirements of D.C.Code § 48-905.06, the statute providing for the admission of chemist’s reports as substantive evidence at trial. To enable the defendant to make an informed decision whether to waive the personal appearance of the chemist for cross-examination,4 the statute requires the government to “furnish[]” a copy of the reports to the defense “no later than 5 days prior to trial.”5 We have held that this five-day notice period is subject to the time computation requirements of Criminal Rule 45, under which intermediate Saturdays, Sundays and legal holidays are excluded, and three days are added for service by mail.6 As appellant’s trial began on February 10, 2005, the government therefore was obliged to mail the DEA-7 reports to his counsel no later than ten calendar days earlier, i.e., January 81, 2005.
The government moved the DEA-7 reports into evidence on the third day of trial. Appellant’s counsel objected to their admission on the ground that the government had never furnished him a copy and he had not seen the reports. Counsel added: “I need to discuss with my client if he wants the chemist here.” Further inquiry revealed that the government had mailed the DEA-7 reports to appellant’s counsel on February 2, 2005, eight calendar days before the start of trial, along with the government’s formal notice of *40compliance with D.C.Code § 48-905.06. Appellant’s counsel represented that he had not received the mailing, had not seen the notice of compliance in the court file when trial started, and had assumed that the government planned to “bring in the chemist.”
The trial court did not doubt the veracity of counsel’s representations. Nonetheless, the court reasoned, the government had served the DEA-7 reports on appellant’s counsel more than five days prior to trial, and appellant’s counsel had a “duty” to bring his non-receipt of the reports to the court’s attention before he announced ready for trial. Consequently, the court ruled, the government had “satisfied its obligation to notify the defense of its intent to use the DEA-7 documents rather than having the chemist brought in, and any motion that the defense might raise to present the chemist in person is denied.” Appellant’s counsel noted his objection to that ruling.
The government now concedes, as it must, that its February 2 mailing was too close to the start of trial to comply with the statutory five-day notice requirement, and that the trial court erred in concluding that the government had satisfied its notice obligation. Even so, the government argues, appellant was not entitled to exclude the DEA-7 reports merely because he did not receive them until the third day of trial, for he “did not (and still does not) contest the DEA-7’s contents and made no effort to subpoena the chemist for the defense case or to obtain a continuance” in order to evaluate the need to do so.7 We think this argument is not well-taken, for in addition to admitting the chemist’s reports, the trial court preemptively denied “any” motion the defense “might” have made to present the chemist in person. Perhaps the court did not intend to issue such a sweeping ruling and meant only to allow the government to introduce the DEA-7 reports in evidence without calling the chemist as a witness. But that is not what the court said. Appellant’s counsel had advised the court that he “needfed] to discuss with [his] client if he want[ed] the chemist here.” Because the court seemingly anticipated and foreclosed any request by appellant for the chemist to be present (which appellant had a statutory right to request), appellant “was prejudiced by being deprived of an opportunity to decide whether to call the chemist for cross-examination.”8
The government has not tried to justify the court’s preclusive ruling. The ruling was not justified by the failure of appellant’s counsel to bring the government’s noncompliance with the five-day notice requirement to the court’s attention prior to the start of trial. As we recognized in Johnson, the defense had no such duty;9 nor did appellant waive his objections to *41the admission of the chemist’s reports by failing to raise them before trial.10 Indeed, in this post-Crawford11 trial, it was not unreasonable for counsel to infer that the government intended to call the chemist in person,12 which would have obviated any need to comply with D.C.Code § 48-905.06 (though the government still would have had pretrial disclosure obligations under Criminal Rule 16 upon defense request13). Further, the record does not show that appellant’s delay in objecting to the untimely service of the DEA-7 reports resulted in the chemist’s unavailability to appear in person at trial or otherwise disadvantaged the government’s litigating position.
III.
Because the government’s failure to comply with the statutory five-day notice requirement and the court’s preemptive ruling operated to deny appellant a fair opportunity to decide whether to call the chemist for cross-examination, the admission of the chemist’s reports in evidence was error. As the government concedes, appellant preserved this claim of error by contemporaneous objection at trial.14 The error therefore necessitates reversal of appellant’s convictions unless we are convinced that the error was harmless. In order to conclude that a non-constitutional error was harmless, we must be able to say “with fair assurance, after pondering all that happened without stripping the erroneous action from the whole, that the judgment was not substantially swayed by the error.” 15 Under this test, the “burden” is not on the appellant to show that he has suffered prejudice; rather, the issue is whether the record eliminates the appellate court’s doubt about whether the error influenced the jury’s decision.16 “[W]e must find it highly probable that [the] error did not contribute to the verdict.” 17 In assessing an error’s impact, we typically take three factors into consideration: (1) “the centrality of the issue affected by the error;” (2) “the closeness of the case;” and (3) “the steps taken to *42mitigate the effects of the error.”18 As no mitigating measures were taken in this case, our focus must be on the first two factors.
To convict appellant of the distribution and PWID offenses with which he was charged, the government needed to prove that what he distributed or possessed was a controlled substance, namely cocaine or a mixture containing cocaine, in a measurable amount.19 As the DEA-7 reports alone supplied that essential proof, the error in admitting those reports unquestionably influenced the jury’s verdict and cannot be deemed harmless with respect to appellant’s distribution and PWID convictions. Those convictions cannot stand.
At oral argument in this court, the government argued for the first time on appeal that the admission of the DEA-7 reports, if deemed erroneous, was harmless with respect to the jury’s implicit verdicts of guilty on the lesser-included offenses of attempted, distribution of a controlled substance (cocaine) and attempted PWID (cocaine).20 On that premise, the government asks us to direct the trial court on remand to vacate appellant’s convictions for the greater offenses and enter judgment on the lesser-included offenses.21 In order to consider this belated contention, we requested and have received supplemental post-argument briefs from the parties. We have discretion to overlook the government’s failure to make a timely harmlessness argument in its initial brief, though “only in the rare circumstance in which harmlessness is obvious.”22
With respect to the lesser-included attempt offenses, the government argues, the DEA-7 reports were essentially superfluous, because the attempt offenses (un*43like the greater offenses) did not require the government to prove either the identity or the measurable quantity of what appellant attempted to distribute or possess.23 It need not have been a controlled substance at all; what matters is that appellant believed it to be one. The attempt offenses required the government to prove only that appellant (1) intended to possess and distribute a controlled substance, and (2) engaged in conduct “reasonably adapted to the accomplishment of’ the intended crimes.24 The government presented ample credible evidence, independent of the chemist’s reports, to prove those elements. In brief, as recounted more fully above, an experienced undercover officer saw appellant exercise dominion and control over a hidden cache of ziplock bags containing a white rock substance and sell at least one of the ziplock bags to James and Thomas for cash, which was recovered promptly from appellant’s person. The white rock substance had the appearance to the undercover officer of being crack cocaine or heroin. And a police expert in the drug trade testified that the circumstances — in particular, the quantity and packaging of the suspected contraband, the use of a “stash,” and the employment of a “facilitator” (i.e., James, under the prosecution’s theory at trial) — were characteristic of street-level drug distribution. Certainly, the surreptitious transaction was anything but innocent. The government does not deny that the DEA-7 reports also helped prove appellant guilty of the attempt offenses. That would be too strong a claim to make, for proof that what appellant possessed and distributed actually was cocaine constituted substantial evidence of his criminal intent.25 Nonetheless, the government argues, a reviewing court can be confident that a rational jury considering the admissible evidence alone would have inferred that appellant attempted to possess and distribute a controlled substance, and that the inadmissible chemist’s reports therefore did not “substantially sway” the jury to make that finding.
We agree that the evidence sans the chemist’s reports was sufficient to support the jury’s implicit finding that appellant attempted to possess and distribute a controlled substance.26 But that does not mean the chemist’s reports had no influence on that finding. “Mere sufficiency of the evidence ... does not dictate a finding *44of harmless error.”27 The mens rea element of the attempt offenses required the government to prove that appellant intended to possess and distribute a controlled substance; in other words, that appellant believed he was selling drugs rather than something else. Absent the chemist’s reports, this could have been the central issue at trial, for the government’s own expert witness raised an alternative possibility. As Detective Washington explained, “there’s no quality control out there.” Consumer deception is an ever-present possibility: buyers “don’t know what they’re buying. It could be from the best cocaine they purchased, to the point where it may not be cocaine at all.” Importantly, the risk of being defrauded is great enough that “this is why we don’t see individuals out there buying more than three bags at a time.” Detective Washington’s testimony, which the jury had no reason to disbelieve, introduced the possibility that appellant’s intent was only to possess and sell so-called “burn bags”— bags containing fake drugs rather than the real thing. Such an intent does not satisfy the mens rea element of attempted distribution or PWID.
Without the DEA-7 reports (and the results of the field test, which we disregard, see footnote 2, supra), the remainder of the government’s evidence was consistent with the burn bag hypothesis; it looked like he was selling drugs, but “to achieve verisimilitude, someone trying to defraud would-be buyers of cocaine would have every incentive to mimic the behavior of a dealer in the genuine article.”28 Furthermore, at the close of trial, in the absence of the chemist’s analysis,
appellant’s counsel could have argued forcefully that the government had not met its high burden of proof as to appellant’s intent to possess [and distribute] a controlled substance when it had not even shown what the ziplock bags contained. This might have been a difficult argument to counter, for the prosecutor would have been unable to rule out the “burn bag” hypothesis or to explain the conspicuous gap in the government’s proof. The unanswered questions might have loomed large in the jury’s deliberations.29
In other words, the admissible evidence by itself might have left a rational jury with a reasonable doubt as to whether appellant intended to possess and sell a controlled substance as opposed to an imitation drug. The inadmissible DEA-7 reports might have influenced the jury’s implicit finding of the required mens rea in this case precisely because they alone effectively refuted the burn bag scenario.
The government argues, however, that there was other evidence in this case, namely appellant’s own testimony, that would have led a rational jury to find he intended to sell real rather than fake drugs. As the government points out, Detective Washington attributed the prevalence of counterfeit drugs to the buyer’s *45lack of a remedy for fraud: “If the person buys something that is not cocaine, they [sic] can’t take it back to the drug dealer and say this is no good, the product is bad, give me my money back.... They have to take it as a loss and move on.” In his trial testimony, however, appellant admitted having frequented the area where he allegedly sold cocaine to James and Thomas, and having known James as well as others in that area. Therefore, the government reasons, the jury would have inferred that appellant did not knowingly sell fake drugs to the purchaser in this case because appellant knew the purchaser would have been able to return the bad product to him for a refund. (To this it could be added, though the government has not chosen to do so, that appellant did not claim in his testimony that he sold only burn bags.)
We are not persuaded by these considerations. Preliminarily, we doubt the propriety of considering appellant’s testimony where, as here, the issue is not sufficiency of the evidence to support the jury’s verdict, but whether inadmissible evidence might have influenced that verdict. It is plausible to think that appellant would not have taken the witness stand had there been no evidence in the government’s case-in-chief of the DEA chemist’s laboratory results (even assuming, as we do, that the government would have survived a defense motion for judgment of acquittal).30 The government therefore should not receive the benefit of appellant’s testimony when we evaluate whether he was prejudiced by the erroneous admission of the DEA-7 reports. But even if we do consider appellant’s testimony, we think it does not alter the evidentiary equation. The mere fact that a cheated buyer might have been able to find appellant again does not mean he would have been willing and able to demand a refund from him. In the dangerous criminal milieu of drug dealing, we readily can imagine compelling reasons why a buyer, out only $20, would have “take[n] it as a loss and move[d] on,” in the words of Detective Washington. (We similarly perceive strong reasons why appellant would not have taken the witness stand to admit having sold counterfeit drugs to unsuspecting buyers.)
To find the error in this case harmless with respect to the lesser-included attempt offenses, we must be fairly assured that the error did not sway the jury’s judgment — that a rational jury would have found beyond a reasonable doubt that appellant intended to sell cocaine (or some controlled substance) even without the chemist’s analysis of the suspected contraband. For the reasons stated, we lack such assurance.
Reversed.
Opinion for the court by Associate Judge GLICKMAN.
. The police also recovered a small glass "crack pipe” from Thomas. Appellant successfully objected at trial to the admission of the crack pipe in evidence, and the court instructed the jury not to consider it. In light of that instruction, the government “does not *38rely on the crack pipe as evidence of appellant's intent to possess and distribute cocaine." Supplemental Brief for Appellee at 22 n. 19.
. Officer Shaw testified on direct that a field test he conducted on one of the white rocks in the green bottle yielded a positive reaction for cocaine base. However, when appellant sought to cross-examine Shaw about the accuracy of the field test, the prosecutor objected on relevance grounds, arguing that the DEA chemist’s report contained "the definitive analysis of what the substance was.” The trial court sustained the prosecutor's objection. Because appellant’s cross-examination was curtailed, the government "does not rely on [the field test] to support its harmlessness argument” respecting the admission of the DEA chemist's reports. Supplemental Brief for Appellee at 24 n. 22.
. Appellant also contends that the trial court’s ruling violated his Sixth Amendment rights.
. See Giles v. District of Columbia, 548 A.2d 48, 50-51 (D.C.1988) ("The obvious purpose of this provision is to give sufficient notice to the defendant to decide whether to call the chemist for cross-examination_”). At the time of appellant’s trial, the defendant’s option under D.C.Code § 48-905.06 was to call the chemist for cross-examination during the defense case. See Brown v. United States, 627 A.2d 499, 506-07 (D.C.1993). Subsequently, however, to preserve the statute’s constitutionality, we construed it to entitle the defendant to require the prosecution to put the chemist on the witness stand in its case. (Michael) Thomas v. United States, 914 A.2d 1, 19-20 (D.C.2006).
. D.C.Code § 48-905. In a proceeding for a violation of this chapter, the official report of chain of custody and of analysis of a controlled substance performed by a chemist charged with an official duty to perform such analysis, when attested to by that chemist and by the officer having legal custody of the report and accompanied by a certificate under seal that the officer has legal custody, shall be admissible in evidence as evidence of the facts stated therein and the results of that analysis. A copy of the certificate must be furnished upon demand by the defendant or his or her attorney in accordance with the rules of the Superior Court of the District of Columbia or, if no demand is made, no later than 5 days prior to trial. In the event that the defendant or his or her attorney subpoenas the chemist for examination, the subpoena shall be without fee or cost and the examination shall be as on cross-examination.
.See Belton v. United States, 580 A.2d 1289, 1291-92 (D.C.1990); Super. Ct.Crim. R. 45(a), (e).
.Supplemental Brief for Appellee at 6. See, e.g., Belton, 580 A.2d at 1294 (upholding admission of chemist’s report where appellant's counsel received it three days before trial and four days before the government sought to introduce it in evidence; appellant "never asserted to the trial court that the chemical analysis described in the report was inaccurate;” “never indicated that he wished to call the chemist for cross-examination;” "never sought a recess or continuance” to evaluate whether to call the chemist; and "never even suggested that the government's dilatoriness had left him without sufficient time to evaluate the chemist's report"). See also Washington v. United States, 600 A.2d 1079, 1081 (D.C.1991) ("Under Belton, prejudice may be established by a prompt objection by counsel upon receiving the DEA-7 at trial, and a request for time to review it in order to determine whether to challenge it.”).
. Johnson v. United States, 596 A.2d 511, 514 (D.C.1991).
. See id. at 515.
. See Giles, 548 A.2d at 50-52; see also (Michael) Thomas, 914 A.2d at 19-20 (explaining that pretrial inaction by defendant after receiving government's notice of compliance with D.C.Code § 48-905.06 cannot be deemed a waiver of defendant’s right to require government to produce chemist at trial for cross-examination).
. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
. See (Michael) Thomas, 914 A.2d at 5 (holding, light of Crawford, that "the defendant enjoys a Sixth Amendment right to be confronted with the chemist in person”).
. See Super. Ct.Crim. R. 16(a)(1)(D), (E). Neither in the trial court nor in this court has the government suggested that appellant waived his right to object to the admission of the chemist’s reports by failing to request them in pretrial discovery or by failing to pursue his request for them.
. The government disputes whether appellant preserved his Sixth Amendment claim, an issue that we consider moot.
. Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946).
. O'Neal v. McAninch, 513 U.S. 432, 436-40, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995); see also, e.g., United States v. Olano, 507 U.S. 725, 734, 741, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (explaining that where a trial error has been preserved, the burden of persuasion is not on the appellant to show prejudice, but on the government to demonstrate lack of prejudice).
. Wilson-Bey v. United States, 903 A.2d 818, 844 (D.C.2006) (en banc) (internal quotation marks omitted).
. Andrews v. United States, 922 A.2d 449, 459 (D.C.2007) (citing Allen v. United States, 837 A.2d 917, 921 (D.C.2003)).
. See (Sean) Thomas v. United States, 650 A.2d 183, 197 (D.C.1994) (en banc) (holding that in order to secure a conviction for possession or distribution of a controlled substance, ‘‘the government must show either by direct or circumstantial evidence that the substance in question contained a measurable amount of a controlled substance”); Hicks v. United States, 697 A.2d 805, 807 (D.C.1997) (holding that proof of "a measurable amount of a mixture containing cocaine is sufficient to sustain a conviction” for possession of a controlled substance (cocaine), even absent proof of a measurable quantity of the active ingredient, cocaine).
. The government has made a comparable harmlessness argument in other cases in which a DEA chemist’s report was admitted in error. See Doreus v. United States, 964 A.2d 154 (D.C.2009) (error not harmless with respect to lesser-included offense of attempted PWID cocaine); Fields v. United States, 952 A.2d 859 (D.C.2008) (error not harmless with respect to lesser offense of attempted possession of marijuana). In each of those cases, the introduction of the chemist's report violated the Confrontation Clause of the Sixth Amendment, and harmlessness therefore had to be shown beyond a reasonable doubt-a more stringent test than the one we apply in this case of non-constitutional error.
. We may direct entry of judgment on a lesser-included offense when a conviction on the greater offense is reversed on grounds that affect only the greater offense, i.e., where the lesser offense was not affected by the error. Willis v. United States, 692 A.2d 1380, 1383 (D.C.1997) (citing Rutledge v. United States, 517 U.S. 292, 306, 116 S.Ct. 1241, 134 L.Ed.2d 419 (1996)). An attempt is a lesser-included offense of the completed crime, and a defendant may be convicted of an attempt even if the evidence shows that the completed crime was committed. See Evans v. United States, 779 A.2d 891, 894 (D.C.2001). An attempt to commit an offense under the Controlled Substances Act is subject to the same punishment as is the completed offense. D.C.Code § 48-904.09 (2001).
. Randolph v. United States, 882 A.2d 210, 226 (D.C.2005).
. See Thompson v. United States, 678 A.2d 24, 27 (D.C.1996) ("[T]he government was not required to prove that the substance actually was cocaine in order to establish appellant's guilt of attempted distribution.”); Seeney v. United States, 563 A.2d 1081, 1083 (D.C.1989) ("With respect to the offense of attempted possession with intent to distribute, ... it is not necessary to establish that the substance a defendant attempted to possess was the proscribed substance.”).
. Seeney, 563 A.2d at 1083. In many cases, we have added that the act constituting an attempt must come within "dangerous proximity” of completing the crime, a formulation attributed to Justice Holmes. See Jones v. United States, 386 A.2d 308, 312 (D.C.1978). This formulation has been criticized, and from time to time the government has urged us to jettison it in favor of the Model Penal Code alternative, under which the act need be only a “substantial step” towards completion of the crime. See In re Doe, 855 A.2d 1100, 1107 n. 11 (D.C.2004). The issue need not concern us here; under any definition, appellant’s conduct satisfied the actus reus requirement for an attempt, assuming appellant performed it with the required mens rea.
. See, e.g., Fields, 952 A.2d at 865 ("The DEA-7 report was offered as proof that what appellant possessed was marijuana.... If the case had been charged and tried for attempted possession, the DEA-7 report similarly would prove that what appellant intended to possess was a controlled substance, marijuana.").
. See Thompson, 678 A.2d at 27-28.
. Bell v. United States, 801 A.2d 117, 129 (D.C.2002).
. Doreus, 964 A.2d at 161-62, op. at 14 (Glickman, J., concurring).
. Id. "[T]he defense is always free to comment on the absence of evidence in arguing to the jury that the government has not met its burden to prove guilt beyond a reasonable doubt.” Wheeler v. United States, 930 A.2d 232, 238 (D.C.2007). And the gap alone can be enough to sustain a reasonable doubt. See, e.g., Greer v. United States, 697 A.2d 1207, 1210-11 (D.C.1997) (finding harm where trial court erroneously foreclosed defense from arguing the lack of corroborative evidence); see also Smith v. United States, 709 A.2d 78, 82 (D.C.1998) (en banc) (stating, in model jury instruction, that reasonable doubt may arise from "the evidence or lack of evidence in the case” (emphasis added)).
. We must set aside the likelihood that the government could have secured the DEA chemist's live testimony if the trial court had excluded the DEA-7 reports in the chemist’s absence. The inquiry into harmless error focuses on the impact of the error in the trial that actually occurred, not on whether the same verdict would have been reached in a different trial in which the error was avoided. See Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993); Ellis v. United States, 941 A.2d 1042, 1049 (D.C.2008). | 01-04-2023 | 11-18-2022 |
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11/18/2022 09:05 AM CST
- 426 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426
Dietzel Enterprises, Inc., appellant, v.
J. A. Wever Construction, L.L.C., appellee.
___ N.W.2d ___
Filed September 16, 2022. No. S-21-106.
1. Breach of Contract: Damages. A suit for damages arising from a
breach of contract presents an action at law.
2. Judgments: Appeal and Error. In a bench trial of a law action, a trial
court’s factual findings have the effect of a jury verdict and will not be
set aside on appeal unless clearly wrong.
3. ____: ____. After a bench trial of a law action, an appellate court does
not reweigh evidence, but considers the evidence in the light most
favorable to the successful party and resolves evidentiary conflicts in
favor of the successful party.
4. Damages: Appeal and Error. The amount of damages to be awarded is
a determination solely for the fact finder, and its action in this respect
will not be disturbed on appeal if it is supported by evidence and bears
a reasonable relationship to the elements of the damages proved.
5. Fraud. In determining whether an individual reasonably relied on a
misrepresentation, courts consider the totality of the circumstances,
including the nature of the transaction; the form and materiality of the
representation; the relationship of the parties; the respective intelli-
gence, experience, age, and mental and physical condition of the parties;
and their respective knowledge and means of knowledge.
6. Negligence: Fraud. In both negligent and fraudulent misrepresentation
cases, whether the plaintiff exercised ordinary prudence is relevant to
whether the plaintiff justifiably relied on the misrepresentation when the
means of discovering the truth was in the plaintiff’s hands.
7. Contracts. In order for the implied covenant of good faith and fair deal-
ing to apply, there must be in existence a legally enforceable contrac-
tual agreement.
8. Contracts: Parties. The implied covenant of good faith and fair deal-
ing exists in every contract and requires that none of the parties do
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426
anything which will injure the right of another party to receive the
benefit of the contract.
9. ____: ____. The nature and extent of an implied covenant of good faith
and fair dealing are measured in a particular contract by the justifiable
expectations of the parties. Where one party acts arbitrarily, capri-
ciously, or unreasonably, that conduct exceeds the justifiable expecta-
tions of the second party.
10. Contracts. The question of a party’s good faith in the performance of a
contract is a question of fact.
11. Breach of Contract: Words and Phrases. A material breach is a failure
to do something that is so fundamental to a contract that the failure to
perform that obligation defeats the essential purpose of the contract or
makes it impossible for the other party to perform under the contract.
12. Breach of Contract. A material breach will excuse the nonbreaching
party from its performance of the contract.
13. ____. Whether or not a breach is material and important is a question
of degree which must be answered by weighing the consequences of the
breach in light of the actual custom of persons in the performance of
contracts similar to the one involved in the specific case.
14. Damages: Evidence. Evidence of damages must be sufficient to enable
the trier of fact to estimate actual damages with a reasonable degree of
certainty and exactness.
15. Damages: Evidence: Proof. Proof of damages to a mathematical cer-
tainty is not required; however, a plaintiff’s burden of offering evidence
sufficient to prove damages cannot be sustained by evidence which is
speculative and conjectural.
16. Breach of Contract: Damages. In a breach of contract case, the ulti-
mate objective of a damages award is to put the injured party in the
same position the injured party would have occupied if the contract had
been performed, that is, to make the injured party whole.
17. Damages: Proof. A claim for lost profits must be supported by some
financial data which permit an estimate of the actual loss to be made
with reasonable certitude and exactness.
Appeal from the District Court for Douglas County: James
M. Masteller, Judge. Affirmed in part, and in part reversed
and remanded with directions.
Patrick T. Vint and Todd W. Weidemann, of Woods &
Aitken, L.L.P., for appellant.
Zachary W. Lutz-Priefert and Frederick D. Stehlik, of Gross,
Welch, Marks & Clare, for appellee.
- 428 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
J. A. Wever Construction, L.L.C. (Wever), contracted with
Dietzel Enterprises, Inc. (Dietzel), to perform excavation work
for the construction of a transmission line. While Wever and
Dietzel do not agree on who is to blame, all agree that the proj-
ect did not go well. Dietzel eventually abandoned the project
before its work was done. Unsurprisingly, litigation followed.
Dietzel filed a lawsuit asserting various claims against Wever,
and Wever asserted a breach of contract counterclaim against
Dietzel. Following a bench trial, the district court found that
Dietzel was the first party to materially breach the contract and
awarded Wever damages. From this judgment, Dietzel appeals,
arguing that the district court erred in its rejection of some of
its claims, in its finding that Dietzel was not entitled to suspend
its performance on the project, and in its damages award. We
find that the evidence in the record did not support the entirety
of the damages award to Wever but that the district court did
not otherwise err. Accordingly, we affirm in part, and in part
reverse and remand with directions.
I. BACKGROUND
The setting for this case is the construction site for a trans-
mission line in Maryland owned by Baltimore Gas & Electric
(BG&E). MasTec North America, Inc. (MasTec), was the proj-
ect’s general contractor. Wever and Dietzel, two Nebraska
companies, worked as subcontractors on the project. MasTec
subcontracted with Wever to lay certain concrete foundations
for the line, and Wever subcontracted with Dietzel to excavate
the holes where the foundations would be laid.
The parties experienced difficulties from the start. Work was
to begin on the project in April 2015, but Dietzel was unable to
arrive at the jobsite at the time directed by MasTec. To avoid a
delay, the parties agreed that Wever would rent equipment and
begin the excavation process until Dietzel could arrive.
- 429 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426
After Dietzel arrived, more problems arose. Dietzel had
difficulty performing the excavations, and the project began
to fall behind schedule. Wever’s witnesses at trial generally
blamed Dietzel employees’ allegedly poor excavation strategy
as the cause of the problems and delays. Dietzel’s witnesses
blamed the jobsite conditions, including the presence of alleg-
edly “undrillable” rock. Dietzel contended that before it sub-
mitted its bid, Wever led it to believe that no such rock would
be present.
Dietzel later became concerned that it was not being paid
for the time and materials it was expending on the project. Of
particular concern was whether it would receive payment for
change orders it submitted to Wever for the excavation of hard
rock it contended was not covered by the contract. Under the
contract, however, Wever was not obligated to make payments
to Dietzel unless and until it received payment from MasTec,
and there was evidence that MasTec was slow to pay bills sub-
mitted by Wever.
This all came to a head in the fall of 2015. At that time,
Dietzel requested assurance from Wever that Wever was seek-
ing payment of its change orders from MasTec and that Dietzel
would be paid for those change orders. Approximately 2 weeks
later, Dietzel abandoned the project.
Dietzel later filed this lawsuit alleging claims of breach of
contract, unjust enrichment, negligent misrepresentation, and
breach of the implied covenant of good faith and fair dealing.
Wever filed a breach of contract counterclaim.
Following a bench trial, the district court issued a writ-
ten order. The district court found that Dietzel committed the
first material breach of the contract when it abandoned the
project, and it awarded Wever $2,758,250.47 in damages for
that breach. It found in favor of Wever on Dietzel’s claims of
negligent misrepresentation and breach of the implied cov-
enant of good faith and fair dealing, but found that Wever had
been unjustly enriched in the amount of $328,507, because it
received a payment from MasTec for Dietzel’s work but had
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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426
not passed that payment on to Dietzel. After offsetting the
amounts, the district court determined Wever was entitled to
judgment in the amount of $2,429,743.47. Dietzel appealed,
and we moved this case to our docket on our own motion.
Additional relevant background is provided in the analysis
section below.
II. ASSIGNMENTS OF ERROR
Dietzel assigns, renumbered and restated, that the district
court erred (1) by finding that Wever was not liable for neg-
ligent misrepresentation, (2) by finding that Wever was not
liable for a breach of the implied covenant of good faith
and fair dealing, (3) by finding that Dietzel did not have the
right to stop performance of the contract on the grounds that
Wever failed to provide adequate assurances of payment, (4)
by finding that Wever’s failure to make a timely payment was
not a material breach of contract, and (5) in its calculation
of damages.
III. STANDARD OF REVIEW
[1] A suit for damages arising from a breach of contract
presents an action at law. Goes v. Vogler, 304 Neb. 848, 937
N.W.2d 190 (2020).
[2,3] In a bench trial of a law action, a trial court’s factual
findings have the effect of a jury verdict and will not be set
aside on appeal unless clearly wrong. McGill Restoration v.
Lion Place Condo. Assn., 309 Neb. 202, 959 N.W.2d 251
(2021). After a bench trial of a law action, an appellate court
does not reweigh evidence, but considers the evidence in the
light most favorable to the successful party and resolves evi-
dentiary conflicts in favor of the successful party. Id.
[4] The amount of damages to be awarded is a determina-
tion solely for the fact finder, and its action in this respect will
not be disturbed on appeal if it is supported by evidence and
bears a reasonable relationship to the elements of the damages
proved. Funk v. Lincoln-Lancaster Cty. Crime Stoppers, 294
Neb. 715, 885 N.W.2d 1 (2016).
- 431 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426
IV. ANALYSIS
We address each of Dietzel’s assignments of error below.
We take the assignments up in the chronological order of the
underlying facts.
1. Negligent Misrepresentation
(a) Additional Background
Dietzel claims that it came to be involved in the transmis-
sion line project as a result of a misrepresentation by Wever.
The alleged misrepresentation occurred in January 2015. At
that time, Joshua Dezort, acting on behalf of Wever, sent an
email to Brandon Kreiling, the operations manager for Dietzel.
Kreiling had been involved with estimating projects for Dietzel
since 2008 and, at the time, managed Dietzel’s submission of
bids for potential projects. The email sought a bid from Dietzel
for excavation work.
Dezort’s email stated:
Graceton Tline just north of Baltimore. Transmission
line runs from Bel Air to Pylesville. 82 Drilled pier. There
will be an outage so no energized lines overhead. Work
would start end of Feb. Top 4˝ is loose running around
5 to 7 blows. Then increases about 30 blow from 7´ to
20´. 20´ plus runs around 50 blows with some holes a 90
blows down 30´. There is an adder for rock excavation
if required. The rock is Schist, which is sheet like rock
consisting of mud and clay. Let me know if you are good
with $1000 per cubic yard for rock excavation if required.
There is 15 holes that you will hit rock on. On the sched-
ule it shows depth of rock and depth of hole.
Within 30 minutes of this email, Dezort sent Kreiling a
geotechnical report. The geotechnical report provided details
about small test holes drilled in the area of the jobsite.
Thirteen test holes had a notation of “auger refusal,” which
indicated that when the test hole was being drilled, the device
used to drill the test hole hit something that prevented it from
going any deeper. Kreiling testified that “auger refusal” could
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have been caused by encountering rocks that were small in
comparison to the excavating equipment, by a rock shelf,
or by full rock. The geotechnical report also indicated that
“[v]ery hard materials were encountered in . . . 19 of the 31
borings at depths ranging from 13.5 to 33.5 feet below the
existing ground surface.”
The geotechnical report also had a section titled “Regional
Geology.” This section stated:
[T]he project area is underlain by residual soils derived
primarily from the in-situ weathering of the underly-
ing bedrock (Wissahickon Formation) and several of its
members in this portion of the county, which include
the Lower Peltic Schist, and Boulder Gneiss, which are
comprised primarily of a fine to medium grained chlorite,
muscovite schist with zones of quartzite, metagraywacke,
and gneiss. A small portion of the transmission align-
ment also appears to be underlain by rocks associated
with the Ultramafic and Gabbroic Rock, comprised of
metagabbros, talcs, serpentinites, actinolite schists.
Dezort testified that metagraywacke is “a type of quartz
schist rock,” that gneiss is “similar to schist, but . . . much
harder and more compressed over time,” and that “muscovite
schist with zones of quartzite” would mean that there would
be a possibility of hitting quartz. Kreiling admitted that the
geotechnical report was the best source of information about
subsurface conditions and that it was available to him when he
formulated Dietzel’s bid.
Dietzel submitted a bid to Wever to perform the excavation
work for $722,000 and estimated that it would be able to com-
plete the work in 100 days. Wever accepted Dietzel’s bid.
When Dietzel began its excavation work, it discovered
granite and quartz. According to Dietzel, this was contrary to
a sentence in Dezort’s initial email stating that the rock would
be “[s]chist, [a] sheet like rock consisting of mud and clay.”
Dietzel’s president, Andrew Dietzel, alleged at trial that the
hard rock Dietzel encountered was “undrillable” and that if he
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had known the project was going to require the excavation of
granite and quartz, Dietzel would not have submitted a bid.
Kreiling also testified that, based on Dezort’s representation
that the rock was schist, he bid the job believing that any rock
encountered would “break up well” and be easily excavated.
Based on this information, Dietzel asserted a claim of neg-
ligent misrepresentation. The district court rejected the claim,
finding that Dietzel did not justifiably rely on the representa-
tion in Dezort’s email.
(b) Analysis
Dietzel contends that the district court erred in finding that
it did not justifiably rely on Dezort’s representation and that
it proved all other elements of its negligent misrepresentation
claim. We focus on the issue of justifiable reliance, because we
find it resolves Dietzel’s argument.
[5,6] In order to prevail on a claim of negligent misrepre-
sentation, the plaintiff must prove justifiable reliance on the
alleged misrepresentation. See, e.g., Lucky 7 v. THT Realty,
278 Neb. 997, 775 N.W.2d 671 (2009). In determining whether
an individual reasonably relied on a misrepresentation, courts
consider the totality of the circumstances, including the nature
of the transaction; the form and materiality of the representa-
tion; the relationship of the parties; the respective intelligence,
experience, age, and mental and physical condition of the par-
ties; and their respective knowledge and means of knowledge.
Nathan v. McDermott, 306 Neb. 216, 945 N.W.2d 92 (2020). In
both negligent and fraudulent misrepresentation cases, whether
the plaintiff exercised ordinary prudence is relevant to whether
the plaintiff justifiably relied on the misrepresentation when
the means of discovering the truth was in the plaintiff’s hands.
Id. We have treated the question of whether a plaintiff jus-
tifiably relied on a representation as a question of fact. See
Lucky 7, supra.
Dietzel contends that the statement in Dezort’s email regard-
ing schist was a positive statement of fact and that thus, under
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our law, Dietzel was justified in relying upon it and had no
obligation to further investigate it. In support of this conten-
tion, Dietzel correctly points out that we have said that a
plaintiff is justified in relying upon a positive statement of fact
if an investigation would be required to discover its truth. See
Nathan, supra. We have stated, however, that this is a “general
rule.” Lucky 7, 278 Neb. at 1003, 775 N.W.2d at 676. Accord
Omaha Nat. Bank v. Manufacturers Life Ins. Co., 213 Neb.
873, 332 N.W.2d 196 (1983). And we have also made clear that
this principle does not permit a plaintiff to focus exclusively on
an alleged misrepresentation and ignore other information in its
possession. See Lucky 7, supra.
Here, Kreiling claims to have understood Dezort’s email
to represent that the only rock Dietzel would encounter in its
excavation would be schist, a “sheet like rock consisting of
mud and clay.” Significant evidence, however, suggested that
Dietzel was not justified in relying on such an understanding.
The alleged misrepresentation appears in a terse email intro-
ducing the idea of Dietzel’s submitting a bid on the project. In
that email, Dezort did not specifically state that the only rock
in the area would be schist or otherwise indicate that the area
would not have other rock that was more difficult to drill. In
addition, shortly after sending the introductory email, Dezort
sent the geotechnical report, which contained detailed and
more technical information. Kreiling, who had years of experi-
ence reviewing such information and submitting bids, admitted
that this additional information was the best source of informa-
tion regarding subsurface conditions. This information reported
the “auger refusal” that occurred during testing and the discov-
ery of “[v]ery hard materials” in a number of locations. It also
listed various types of rock found in the area, which Dezort
testified indicated the presence of rock that was “much harder
[than] schist,” as well as quartz. Viewing all this evidence in
the light most favorable to Wever, we cannot conclude that the
district court clearly erred by finding that Dietzel did not estab-
lish justifiable reliance.
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2. Good Faith and Fair Dealing
(a) Additional Background
Dietzel also contends that Wever is liable for failing to
take certain actions shortly after it began work on the proj-
ect. Wever arrived at the project site in early April 2015, but
Dietzel was unable to begin work at that time. To avoid fall-
ing behind schedule, the parties agreed that Wever would rent
equipment and begin to perform a portion of the excavation
work for which Dietzel had submitted a bid.
Wever began excavation work at a location provided by
MasTec, but it soon encountered materials that were too hard
for it to excavate. Wever responded by moving to another
location where Wever did not encounter the same difficulties.
Wever did not, however, inform Dietzel about the hard rock
discovered in its initial excavation work.
When Dietzel arrived at the scene several weeks later, it was
directed to begin excavating in the area where Wever encoun-
tered hard rock. Like Wever, Dietzel encountered hard rock
that was difficult to excavate.
Dietzel alleged that Wever’s failure to disclose that it had
discovered hard rock was a breach of its implied covenant
of good faith and fair dealing. The district court rejected
the claim, reasoning that Wever was not obligated to inform
Dietzel about the hard rock, because the existence of hard
rock was something Dietzel should have contemplated given
the information that was available to it at the time it submitted
its bid.
(b) Analysis
Dietzel contends that the district court erred by finding that
Wever did not breach the implied covenant of good faith and
fair dealing. Relying again on the reference in Dezort’s email
to schist, Dietzel contends that Wever was obligated to inform
Dietzel about the hard rock. When it did not, Dietzel sub-
mits, Wever breached the implied covenant of good faith and
fair dealing.
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[7] We note that at the time Wever initially discovered hard
rock in early April 2015, the parties’ subcontract had not been
executed. The subcontract was dated April 24, 2015. Dietzel
apparently takes the position that Wever’s implied duty of
good faith and fair dealing arose prior to the execution of the
subcontract. We have said that in order for the covenant of
good faith and fair dealing to apply, there must be in existence
a legally enforceable contractual agreement. Acklie v. Greater
Omaha Packing Co., 306 Neb. 108, 944 N.W.2d 297 (2020).
At least one court has expressly held that the duty of good
faith and fair dealing is not imposed until an agreement has
been reached and that a plaintiff must rely on other theories of
recovery for alleged deception prior to a contract being formed.
See Husman, Inc. v. Triton Coal Co., 809 P.2d 796 (Wyo.
1991). We nonetheless assume for the purpose of our analysis
that Wever was bound by the covenant of good faith and fair
dealing when it discovered the hard rock.
[8-10] The implied covenant of good faith and fair dealing
exists in every contract and requires that none of the parties do
anything which will injure the right of another party to receive
the benefit of the contract. In re Application of Northeast Neb.
Pub. Power Dist., 300 Neb. 237, 912 N.W.2d 884 (2018). The
nature and extent of an implied covenant of good faith and fair
dealing are measured in a particular contract by the justifiable
expectations of the parties. Id. Where one party acts arbitrarily,
capriciously, or unreasonably, that conduct exceeds the justifi-
able expectations of the second party. Id. The question of a
party’s good faith in the performance of a contract is a question
of fact. Spanish Oaks v. Hy-Vee, 265 Neb. 133, 655 N.W.2d
390 (2003).
We find no clear error in the district court’s conclusion that
Wever did not breach the implied covenant of good faith and
fair dealing. For reasons we have already explained, the dis-
trict court did not clearly err by finding that Dietzel could not
justifiably rely on Dezort’s email to believe that only schist
would be encountered in the excavation. The same evidence
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that supports that conclusion supports a conclusion that Wever
did not breach the implied covenant of good faith and fair
dealing. If Dietzel could not justifiably rely on Dezort’s email
to believe the work involved only schist, we do not see how it
could justifiably expect to be informed if Wever encountered
rock other than schist, nor do we see how Wever could be said
to have acted arbitrarily, capriciously, or unreasonably by not
disclosing that information.
3. Adequate Assurances
(a) Additional Background
Dietzel’s next two assignments of error pertain to its conten-
tion that when it abandoned the project in October 2015, it was
legally entitled to do so. In order to discuss these assignments
of error, it is necessary to set forth a fairly detailed discussion
of the way in which parties on the project were paid.
The parties entered into what they refer to as a “paid-when-
paid” contract. The phrase “paid-when-paid” refers to the fact
that Wever was contractually required to make payment to
Dietzel only after it received payment from MasTec. The con-
tract provided that Wever was to make payment within 7 days
of receiving payment from MasTec.
Dietzel sent Wever two types of invoices. One type sought
“progress payments” under the contract—the payment Dietzel
was owed for the percentage of work it had completed from its
scope of work. The other sought payment of “change orders”—
a request for payment for additional work Dietzel claimed was
not covered by the contract. Wever was then expected to sub-
mit these requests for payment, with a contractually authorized
markup, to MasTec.
Dietzel submitted an invoice to Wever dated July 1, 2015,
for progress payments for April, May, and June. Wever sent
checks to Dietzel for progress payments in July, August, and
September: It sent Dietzel a check for $41,706 dated July 17,
2015; a check for $68,708 dated August 10, 2015; and a check
for $15,143.06 dated September 30, 2015. Kathryn Hisel, the
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chief financial officer of Wever, testified that it often took
MasTec 60 to 90 days after Wever sent a bill to send a payment
to Wever.
Dietzel submitted its first change order for excavating hard
rock on July 19, 2015. The change order sought payment of
$328,507.
The owner of Wever, James Wever, testified that he attended
a meeting in late July 2015 in which the change order was dis-
cussed. James Wever testified that Andrew Dietzel and repre-
sentatives of BG&E and MasTec were also present. According
to James Wever, BG&E and MasTec did not commit to paying
the change order, but did agree to review it and provide them
with an answer “at a later time.”
Dietzel employees made inquiries with Wever regarding the
status of the change order after it was submitted. On August
6, 2015, a Dietzel employee emailed Dayna Wever, Wever’s
president, and asked about the change order. Dayna Wever
responded:
[T]he rock change order is out if [sic] our hands and is on
the table with Mas[T]ec and BG[&]E. Change orders are
not paid until approved by owner. We will pay you when
and if we are paid. . . . As I told Andrew [Dietzel] in our
phone conversation last week, I am emailing and asking
about it everyday [sic] and when we hear something I will
definitely pass it on to you!!
On August 14, 2015, Dietzel submitted a second change
order for excavating hard rock, requesting an additional
$73,943.
Hisel and Dezort testified that Dietzel’s change orders were
submitted to MasTec. Dezort testified that when a change
order was pending, Wever would “keep on asking [about] the
status of that change order during the duration of the project.”
Andrew Dietzel acknowledged during his testimony that no
one at Wever ever disputed his change order requests, indi-
cated that they were rejecting a change order request, or stated
that they would not pursue the change orders.
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At some point, BG&E clarified that it would not grant
Dietzel’s change orders related to rock excavation until 288
cubic yards of rock had been excavated. On September 7,
2015, Andrew Dietzel communicated to Wever by email that,
unless its change orders were granted, Dietzel would not
excavate where it had encountered hard rock. In response,
Wever sent a letter explaining it had “pursued a change order
with MasTec and BG[&]E on [Dietzel’s] behalf”; that pursu-
ant to the subcontract, it would pay Dietzel only if it first
received payment; and that MasTec and BG&E had denied the
change order request until 288 cubic yards of rock had been
excavated.
On September 24, 2015, Dietzel sent a letter requesting that
Wever provide assurance within 7 days that it was “pursuing
Dietzel’s claims for outstanding progress payments and change
orders” and that it would “receive payment of these outstanding
amounts.” On September 25, Dayna Wever forwarded Andrew
Dietzel an email from a representative of MasTec. The MasTec
representative had asked in his email, “Which foundations hit
undrillable rock?” Andrew Dietzel responded with information
about the specific foundations.
On October 5, 2015, Dietzel abandoned the project. Andrew
Dietzel sent Dayna Wever a letter explaining Dietzel’s decision
to leave. Among the reasons he cited were Wever’s failure to
provide assurances of payment and failure to provide docu-
mentation that it was “prosecuting Dietzel’s claims.” Based on
these failures and others, Andrew Dietzel wrote, Dietzel con-
sidered Wever in material breach of the contract. The district
court found that Dietzel committed the first material breach of
the contract when it abandoned the project.
(b) Analysis
Dietzel argues that the district court erred by finding
that it committed the first material breach of the contract.
Dietzel contends that when it did not receive adequate assur-
ance that Wever was pursuing its change order requests with
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MasTec and that Wever would pay Dietzel for its change
order requests, Dietzel had the right to suspend contractual
performance.
Dietzel cites the Restatement (Second) of Contracts § 251
(1981) to argue that it had the right to request assurance
of Wever’s performance of the subcontract and that because
Wever did not provide such adequate assurance within a rea-
sonable time, Dietzel was permitted to treat the failure as a
repudiation of the subcontract. While this court has not yet
adopted § 251 of the Restatement, see McKinnis Roofing v.
Hicks, 282 Neb. 34, 803 N.W.2d 414 (2011), we need not
decide whether to adopt it here, because, even if we were to
adopt it, Dietzel cannot show that it would apply.
Section 251 states:
(1) Where reasonable grounds arise to believe that
the obligor will commit a breach by non-performance
that would of itself give the obligee a claim for damages
for total breach under § 243, the obligee may demand
adequate assurance of due performance and may, if rea-
sonable, suspend any performance for which he has not
already received the agreed exchange until he receives
such assurance.
(2) The obligee may treat as a repudiation the obligor’s
failure to provide within a reasonable time such assurance
of due performance as is adequate in the circumstances of
the particular case.
Restatement (Second) of Contracts § 251 at 276-77.
Dietzel argues that Wever was obligated to assure it that it
was “prosecuting” Dietzel’s change orders with MasTec and
that it would pay Dietzel for its change orders. But Wever
would have such an obligation under § 251 only if Dietzel had
“reasonable grounds . . . to believe” that Wever would “com-
mit a breach by non-performance.” Viewing the evidence in
the light most favorable to Wever, we cannot say that Dietzel
had reasonable grounds to believe that Wever was or would be
committing a breach.
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Significant evidence was introduced at trial showing that
Dietzel did not have reasonable grounds to believe that Wever
was not pursuing payment of the change orders. Wever employ-
ees testified that Dietzel’s change orders were submitted to
MasTec. Andrew Dietzel acknowledged that no one at Wever
suggested otherwise. Beyond that, there was testimony that
Andrew Dietzel was present at a meeting with James Wever
and representatives from BG&E and MasTec in which the first
change order was discussed. Further, Dayna Wever’s email to
a Dietzel employee stated that Dayna Wever was repeatedly
asking MasTec about it and she had told Andrew Dietzel as
much. Finally, the September 9, 2015, letter informed Dietzel
that Wever had “pursued a change order with MasTec and
BG[&]E on your behalf.”
Faced with all this evidence that Wever was submitting its
change orders and pressing MasTec to approve them, Dietzel
focuses on the September 25, 2015, email Dayna Wever for-
warded to Andrew Dietzel, in which a MasTec representa-
tive asked, “[w]hich foundations hit undrillable rock?” Dietzel
argues that this email shows that Wever had not been submit-
ting its change orders because the MasTec representative did
not know that Dietzel had been excavating undrillable rock.
This does not strike us as a likely interpretation, let alone the
only reasonable one. Taken at face value, the question simply
sought clarification on which foundations were at issue.
Based on the evidence that Wever was consistently com-
municating that the change orders were being pursued, as
well as the evidence that Dietzel had actual knowledge that
the July 2015 change order was submitted, Dietzel did not
have reasonable grounds to believe that Wever had or would
breach any obligation with respect to the pursuit of Dietzel’s
change orders.
We also conclude that at the time of its September 24, 2015,
letter requesting assurances, Dietzel did not have reasonable
grounds to believe that Wever would breach the subcontract
by not making payment on its change orders. Here, it was not
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enough for Dietzel to show that it had a reason to believe that
it might not receive payment for all the change orders it sub-
mitted. Rather, Dietzel must have had reasonable grounds to
believe that Wever would breach the subcontract by not pay-
ing its change orders. See Restatement (Second) of Contracts
§ 251 at 276 (obligation to provide assurance applies “[w]here
reasonable grounds arise to believe that the obligor will com-
mit a breach by non-performance”). This distinction is relevant
because of the paid-when-paid clause. Because the subcontract
obligated Wever to make payment only if it received pay-
ment from MasTec, Dietzel must show that it had reasonable
grounds to believe that Wever might receive payment from
MasTec on a Dietzel change order and refuse to pass along
payment to Dietzel. The evidence does not support a finding
that Dietzel had reasonable grounds to believe this. At the time
that the request for assurances was made, Wever had timely
made contractually obligated payments to Dietzel, and Dietzel
does not direct us to anything in the record suggesting that it
would not do so in the future.
4. Material Breach
(a) Additional Background
In addition to its adequate assurances theory, Dietzel con-
tends that it was also legally entitled to abandon the project
on October 5, 2015, because Wever had materially breached
the contract. Its claim of material breach rests on Wever’s
receipt of a payment from MasTec on September 22 and fail-
ure to make payment to Dietzel for the portion to which it was
entitled by September 29, as required by the paid-when-paid
clause.
There appears to be no dispute that Wever did, in fact,
receive payment from MasTec on September 22, 2015. On
September 30, Dayna Wever emailed Andrew Dietzel stating
that Wever had received a payment from MasTec and would
be sending Dietzel its contractually required portion promptly.
The district court found that Dietzel received the check for
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$15,143.06 on October 6, which was 1 day after it abandoned
the jobsite.
The district court determined that because the payment was
not made by the time required by the subcontract, Wever com-
mitted a breach. The district court concluded, however, that
the breach was not material and that thus, Dietzel’s nonper
formance of the contract was not excused.
(b) Analysis
[11,12] Dietzel argues that the district court erred when
it found that Wever’s untimely payment was not a material
breach of the subcontract. A material breach is a failure to do
something that is so fundamental to a contract that the failure
to perform that obligation defeats the essential purpose of the
contract or makes it impossible for the other party to perform
under the contract. Siouxland Ethanol v. Sebade Bros., 290
Neb. 230, 859 N.W.2d 586 (2015). A material breach will
excuse the nonbreaching party from its performance of the
contract. Id. Unless there is only one reasonable conclusion
regarding the issue, in which case a court decides the issue as
a matter of law, whether a breach was material is a question of
fact. See id.
We understand Dietzel to primarily argue that any delayed
payment to a construction contractor is a material breach as a
matter of law. Dietzel claims that because timely payment to
a contractor is critical to the contractor’s ability to cover its
expenses and continue working, delayed payments are always
material breaches. We are not persuaded.
[13] We have said that whether or not a breach is mate-
rial and important is a question of degree which must be
answered by weighing the consequences of the breach in
light of the actual custom of persons in the performance of
contracts similar to the one involved in the specific case.
Siouxland Ethanol, supra. A test that considers the degree
and consequences of the breach does not lend itself to the
kind of bright-line rule Dietzel asks us to adopt. Furthermore,
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this does not appear to be the prevailing rule in construction
law. A construction law treatise relied on by Dietzel states,
“Nonpayment [of a construction contractor] for limited periods
or in insignificant amounts, while annoying, rarely are deemed
to constitute material breaches.” 5 Philip L. Bruner & Patrick
J. O’Connor, Jr., Bruner and O’Connor on Construction Law,
§ 18:26 at 959 (2002). A case Dietzel cites similarly disavows
the “suggest[ion] that every delay in payment will justify a
contractor in terminating performance under an installment
contract.” Zulla Steel, Inc. v. A & M Gregos, Inc., 174 N.J.
Super. 124, 132, 415 A.2d 1183, 1187 (1980).
Dietzel nonetheless maintains that under Nebraska law,
delayed payments to contractors are material breaches. In sup-
port of this argument, Dietzel relies on a fairly recent case,
Goes v. Vogler, 304 Neb. 848, 937 N.W.2d 190 (2020), and
a very old one, Howard County v. Pesha, 103 Neb. 296, 172
N.W. 55 (1919). While Goes affirmed a district court’s find-
ing that a particular nonpayment to a contractor was material,
we did not hold that all such delayed payments are material.
As for Howard County, in that case, this court did find that a
county’s failure to pay a contractor as required by the contract
entitled the contractor to suspend performance. And, to be fair,
the court quoted some language from other jurisdictions that
could be read to suggest that the failure to make payments to
a contractor as required justifies the contractor in abandon-
ing the work. That said, in more than a century since Howard
County was published, we do not appear to have ever cited
the case in a published decision and the idea that any delay
in paying a construction contractor is a material breach as a
matter of law is inconsistent with our material breach juris-
prudence. To the extent Howard County suggests otherwise, it
is disapproved.
Of course, none of this precluded Dietzel from contend-
ing that, under the circumstances of this case, Wever’s delay
in payment amounted to a material breach. The district court
rejected that argument, however, and therefore, we may reverse
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its factual determination only if we find that it was clearly
wrong. We do not believe it was. When Dietzel abandoned the
project, the payment was about a week late, but Wever had
communicated to Dietzel 1 day after the payment was due that
it would be forthcoming. That is the only evidence we have
of Wever’s making a late payment under the contract. Further,
Dietzel does not contend that Wever ultimately paid less than
the amount due, and the amount paid was relatively small in
comparison to the overall value of the contract. Neither does
Dietzel direct us to any specific evidence in the record that
without this payment, it would have been unable to continue
its work.
For the reasons provided above, we find the district court
did not err in concluding that Dietzel committed the first mate-
rial breach of the parties’ contract.
5. Damages
(a) Additional Background
Wever relied on testimony from Hisel in an attempt to prove
damages for Dietzel’s alleged breach of contract. Hisel testi-
fied about several expenses Wever incurred in the course of the
transmission line project. For each such expense, she identified
a specific amount for which Wever was claiming damages. She
testified that she arrived at those amounts by taking expenses
Wever incurred and increasing them by 15 percent pursuant
to a contractual term which permitted Wever to add a markup
to expenses incurred by Dietzel. With respect to most of the
expenses she testified to, Hisel testified that they were costs
Wever incurred after Dietzel had left the job. She admitted,
however, that some of the expenses Wever incurred prior to
Dietzel’s departure.
In addition to expenses incurred by Wever, Hisel briefly
testified that as a result of Dietzel’s actions, Wever lost the
ability to complete a segment of the transmission line project
and that, as a result, Wever lost $1,795,317. She testified that
number “was what [the lost segment] was supposed to be, our
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Cite as 312 Neb. 426
gross proceeds.” She did not further explain how the number
was calculated. Hisel also testified that her calculations did not
include an amount for the loss of future work with MasTec,
because there was “no way to give that an actual number.”
The district court received a spreadsheet summarizing Hisel’s
testimony regarding the damages sought by Wever. The spread-
sheet included expenses Wever incurred, as well as a line item
for “Lost Revenue” for the “Lost Segment” of the project in
the amount of $1,795,317. Those items totaled $4,263,479.99.
On cross-examination, the district court received into evi-
dence several invoices corresponding to Wever’s claimed dam-
ages. These exhibits showed some additional expenses ref-
erenced by Hisel were incurred before Dietzel abandoned
the jobsite. Hisel also admitted on cross-examination that
the invoices demonstrated that when she had increased the
expenses to account for the contractual markup, she had erro-
neously increased the expenses by 20 percent rather than 15
percent. Additional details about the evidence related to dam-
ages are incorporated in the analysis below.
The district court found that Wever was entitled to damages
that resulted from Dietzel’s materially breaching the contract
when it abandoned the jobsite. It stated that it found that
Dietzel’s abandonment resulted in damages to Wever, includ-
ing the loss of a portion of the project. It acknowledged that
evidence and testimony at trial revealed calculation errors in
Wever’s claimed damages, but found that Wever proved dam-
ages proximately caused by Dietzel’s breach in the amount of
$2,758,250.47. The district court specifically stated that this
damages amount was for damages caused by Dietzel’s aban-
doning the project.
The district court also noted an argument from Wever that
it suffered damages in the form of lost profits from jobs that
it could have otherwise completed while it was completing
this project and from future work with MasTec. The district
court then stated, “The Court finds that Wever failed to prove
its claims for lost profit related to future MasTec jobs or
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DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426
other lost profit as proximately caused by Dietzel’s breach
of contract.”
The district court offset its damages award to Wever by
$328,507, an amount it found Wever had been unjustly enriched
by Dietzel. After including the offset, it found that Wever was
entitled to $2,429,743.47. Wever does not challenge the unjust
enrichment damages on appeal.
(b) Analysis
Dietzel argues that even if the district court did not err in
finding it liable for breach of contract, it erred in its calcula-
tion of Wever’s damages. It argues that the evidence does not
support the amount of damages awarded by the district court.
Before addressing Dietzel’s arguments, we briefly review the
governing legal standards.
[14,15] We have said that “damages, like any other element
of the plaintiff’s [cause of action], must be pled and proved and
that the burden is on the plaintiff to offer evidence sufficient
to prove the plaintiff’s alleged damages.” Pan v. IOC Realty
Specialist, 301 Neb. 256, 276, 918 N.W.2d 273, 291 (2018).
Evidence of damages must be sufficient to enable the trier of
fact to estimate actual damages with a reasonable degree of
certainty and exactness. Id. Proof of damages to a mathemati-
cal certainty is not required; however, a plaintiff’s burden of
offering evidence sufficient to prove damages cannot be sus-
tained by evidence which is speculative and conjectural. Id.
Although the standard of review on appeal for the amount of
damages is generally deferential to the trier of fact, the ques-
tion of whether the evidence of damages is reasonably certain
is a question of law. See, id. (damages award “will not be dis-
turbed on appeal if it is supported by evidence and bears a rea-
sonable relationship to the elements of the damages proved”);
Pribil v. Koinzan, 266 Neb. 222, 227, 665 N.W.2d 567, 572
(2003) (“[w]e have consistently framed the question whether
the evidence of damages is ‘reasonably certain’ as a question
of law . . .”).
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DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426
(i) Expenses Incurred Before
Dietzel Abandoned Jobsite
Dietzel argues that a number of the expenses Hisel testified
to cannot support the district court’s damages award because
the evidence shows that they were incurred prior to Dietzel’s
abandonment of the project. Dietzel argues that the following
expenses fall into that category: expenses associated with the
rental and delivery of an auger; the rental, delivery, repair, and
return of a “Watson” drill; the rental of a hammer drill and
compressor; “slurry”; and a lump sum requested for miscella-
neous equipment Wever rented from United Rentals; as well as
various expenses from Greene Construction.
We agree with Dietzel as to the auger delivery, Watson
drill delivery and repair, hammer drill and compressor, and
slurry, because the undisputed evidence showed those were
expenses Wever incurred before Dietzel abandoned the jobsite.
As for the other expenses, invoices received by the district
court show that an identifiable portion of the expenses were
incurred after Dietzel departed. We find that the evidence
would thus support an award of damages for those identifiable
portions. Adjusting for Hisel’s calculation error on the contrac-
tual markup, we find that the evidence would support award-
ing Wever $4,443.60 for the return of the Watson drill, $1,886
for the expenses from Greene Construction, and $5,942.63 for
the auger rental.
This leaves the costs for renting the Watson drill and the
miscellaneous rentals from United Rentals. We find the evi-
dence for these two expenses suffer from the same deficiency:
The finder of fact would have been forced to speculate as to
what amount of the requested damages were incurred after
Dietzel abandoned the jobsite.
On the Watson drill, the record is inadequate to determine
with reasonable certainty what portion of the damages were
related to the drill and Dietzel’s abandonment of the jobsite.
Although the record includes invoices for those months after
Dietzel’s departure, the invoices list a single price for the
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Cite as 312 Neb. 426
Watson drill and a “2012 John Deere 350G-LC Excavator.”
The record is devoid of any references to whether or not this
additional excavator was somehow connected to the Watson
drill, whether it was necessary to perform work Dietzel would
have performed after Dietzel abandoned the jobsite, or what
portion of the invoices could be attributed to the Watson drill.
Without such evidence, the finder of fact would be left to
only speculate about what damages would be appropriate to
award to Wever for the rental of the Watson drill.
As for the rental expenses from United Rentals, the extent
of Hisel’s testimony on those expenses was that they were
incurred “when we started having to rent more support stuff
to perform their scope” and that Wever began to incur the
expenses in August 2015, which was prior to Dietzel’s leaving
the project. Hisel did not identify what equipment was rented,
for how long Wever rented it, or if all of the equipment was
rented for the same period of time. We find no basis in the
evidence by which to estimate what portion of these expenses
were incurred after Dietzel abandoned the jobsite. Thus, we
find that the record does not support awarding Wever damages
for equipment rented from United Rentals.
(ii) “SR-80” Drill
Wever presented evidence that it excavated holes after
Dietzel’s departure using a rented “SR-80” drill (SR-80). Hisel
testified that expenses for the SR-80 after Dietzel left the job-
site amounted to $418,382.62. Dietzel argues that the damages
for the SR-80 are unrelated to Dietzel’s abandonment of the
jobsite. Here, Dietzel presents several points, and we address
them in turn.
Dietzel argues that the SR-80 costs are unrelated to Dietzel’s
abandonment of the jobsite. It contends that MasTec reim-
bursed Wever for some of the expenses associated with the
SR-80 and that the SR-80 was not within Dietzel’s scope of
work. We disagree. Hisel testified that the only damages she
requested for the SR-80 were not reimbursed by MasTec. She
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Cite as 312 Neb. 426
also testified that Wever used the SR-80 to excavate holes
after Dietzel abandoned the jobsite. Dietzel also argues that
invoices received into evidence demonstrate that Wever rented
the SR-80 prior to Dietzel’s departure. There are invoices
indicating as much, but Hisel testified that she had identified
expenses Wever incurred after Dietzel’s abandonment.
Finding no merit to Dietzel’s arguments specific to the
SR-80, we find that the record provided competent evidence
by which to conclude that Wever had been damaged by the
continued use of the SR-80 after Dietzel abandoned the job-
site. However, because Hisel acknowledged that the requested
amount incorrectly added a 20-percent markup rather than one
of 15 percent, we adjust the amount for which the evidence
supported a damages award accordingly. We find that the evi-
dence would support an award of $400,950.01 for expenses
associated with the SR-80.
(iii) Operators and Administrative Expenses
Wever requested $538,162.50 in damages for what it
labeled “Operators Expense” and $234,000 for administrative
expenses. Hisel testified that the first category was determined
by multiplying 7,174.5 hours by a billed rate of $75 per hour.
Hisel testified that this expense was for the additional time “it
took [for Wever employees] to run a drill rig” after Dietzel
abandoned the jobsite. She also said that she was “trying to
recoup[]” money Wever spent on additional hotels, per diems,
rental pickups, and other miscellaneous expenses. She testified
that the administrative expenses were calculated by multiplying
3,120 hours by a billed rate of $75 per hour. Hisel testified that
this expense reflected the additional time Dezort and Dayna
Wever spent at the jobsite and that she and other “coordina-
tors” spent managing the project.
Hisel testified that in using the $75 per hour rate, she “was
just trying to use a medium range cost that could . . . easily be
backed up between the hourly wages and the per diem and the
hotels and meals.” She testified that Wever billed at $110 per
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Cite as 312 Neb. 426
hour for their superintendents’ time and “about $85” per hour
for its laborers’ time.
Dezort testified that Wever originally planned on a crew
of eight people for the project. He also testified that Wever
“ended up sticking probably about 3 of our crews on this job”
and “the job ended up taking about 6 months longer than it
should have.” Earlier, Dezort had testified that “[f]or smaller
jobs, [Wever] ran about five crews, five guys per crew.”
Dietzel argues that awarding Wever damages for operators
and administrative expenses requested by Wever would have
been clear error, because the evidence was speculative and
conjectural. Viewing the evidence in the light most favorable
to the Wever, we disagree.
Hisel’s testimony about the additional work completed by
Wever employees and how she arrived at $75 per hour, if cred-
ited, would provide the finder of fact a reasonably certain basis
to determine that Wever was damaged and the extent of those
damages. Dezort’s testimony about the additional man-hours
required by Wever employees further supported the existence
and scope of the damages. We conclude that the amounts
requested for operators and administrative expenses, in the
amounts of $538,162.50 and $234,000, respectively, were sup-
ported by the evidence. These amounts were not affected by
Hisel’s calculation error for other damages requested, so these
amounts remain unaltered.
(iv) Auger Purchase
Hisel testified that Wever was forced to purchase an auger
after Dietzel abandoned the jobsite and requested damages in
the amount of $33,391.78. Dietzel argues that awarding Wever
damages for this auger would be clear error, because Wever
can still use the auger.
We find there was sufficient evidence to support an award
of damages for this expense. Wever offered evidence that it
was forced to purchase the auger because Dietzel abandoned
the jobsite. Hisel testified that Wever rented equipment unless
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DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426
it could not do so. Although Hisel acknowledged that Wever
still owns the auger, nothing in the record suggests that Wever
would have purchased the auger at a later date if it had not
been forced to do so by Dietzel’s abandonment of the job-
site. Accounting for Hisel’s calculation error, we find that the
record would support $32,000.46 in damages for the purchase
of the auger.
(v) Remaining Items
Dietzel concedes that Wever presented sufficient evidence
regarding several expenses that were attributable to Dietzel’s
abandonment of the jobsite, including costs associated with
an “IMT” drill, moving drill rigs, and “[d]rilling [m]ud.”
Accounting for Hisel’s calculation error, we find the evidence
supported a damages award for these expenses in the amount
of $217,229.73.
Hisel also testified regarding a number of other expenses to
which Dietzel does not present specific arguments on appeal.
Therefore, we presume that the record contained adequate sup-
port for the district court to award Wever damages for those
items. See Nathan v. McDermott, 306 Neb. 216, 945 N.W.2d
92 (2020) (to be considered by appellate court, alleged error
must be both specifically assigned and specifically argued in
brief of party asserting error). These items include expenses for
equipment from Jeffrey Machine, “Vac Trucks,” “Frac Tanks,”
steel casing, concrete, and “Teeth.” Accounting for Hisel’s cal-
culation error, these expenses amount to $308,289.10.
(vi) Lost Revenue
Hisel briefly testified that Wever lost $1,795,317 in “gross
proceeds” because, as a result of Dietzel’s breach, it was not
permitted to complete its work on a segment of the project.
Wever’s damages spreadsheet also listed this amount as “Lost
Revenue.”
Dietzel argues that the district court specifically found that
Wever was not entitled to any recovery for the lost segment
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DIETZEL ENTERS. V. J. A. WEVER CONSTR.
Cite as 312 Neb. 426
of the project. It is not so clear to us that is the case. Dietzel
points to the language quoted above in which the district court
stated that Wever “failed to prove its claims for lost profit
related to future MasTec jobs or other lost profit as proxi-
mately caused by Dietzel’s breach of contract.” That language,
however, immediately follows a reference to Wever’s claims
for lost profits from future work with MasTec or other work it
could have completed while finishing this project. Even so, we
agree with Dietzel that the evidence did not support an award
of damages for the segment of the project Wever was not able
to complete.
[16] Hisel asserted in her testimony that if Dietzel’s breach
had not caused Wever to lose a segment of the project,
Wever’s “gross proceeds” or “lost revenue” would have been
$1,795,317. Wever was not entitled to an award of damages for
lost revenue. In a breach of contract case, the ultimate objec-
tive of a damages award is to put the injured party in the same
position the injured party would have occupied if the contract
had been performed, that is, to make the injured party whole.
TNT Cattle Co. v. Fife, 304 Neb. 890, 937 N.W.2d 811 (2020).
An award of lost revenue, however, would have made Wever
more than whole, because it would not account for the addi-
tional expenses Wever would have incurred to complete the
work for which it would have received the lost revenue.
[17] A party can, with adequate evidence, recover lost prof-
its. See, e.g., Aon Consulting v. Midlands Fin. Benefits, 275
Neb. 642, 748 N.W.2d 626 (2008). Here, however, Wever’s
evidence was not adequate. Hisel did not provide any mean-
ingful explanation as to how the $1,795,317 figure for “gross
proceeds” was calculated, let alone what Wever’s expenses
likely would have been to earn those proceeds. A claim for lost
profits must be supported by some financial data which permit
an estimate of the actual loss to be made with reasonable certi-
tude and exactness. World Radio Labs. v. Coopers & Lybrand,
251 Neb. 261, 557 N.W.2d 1 (1996). We note that even Wever
appears to recognize the frailty of its claim for an award of
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Cite as 312 Neb. 426
damages for lost revenue associated with the lost segment of
the project. On redirect, Wever’s counsel asked Hisel what
Wever’s recovery would be if the lost revenue evidence was
completely deficient, and on appeal, Wever does not attempt
to argue that its evidence supported an award for lost revenue
associated with the lost segment of the project.
(vii) Summary
Considering each of the above, we find that viewing the evi-
dence in the light most favorable to Wever, the record would
support awarding Wever damages for the following expenses in
the following dollar amounts:
Item Amount
Operator’s Expense $ 538,162.50
Administrative Expense 234,000.00
SR-80 400,950.01
Watson Drill Return 4,443.60
Greene Construction 1,886.00
90˝ Auger Rental 5,942.63
90˝ Auger Purchase 32,000.46
IMT Drill 185,769.85
Moving Drill Rigs 27,370.00
Drilling Mud 4,089.88
Jeffrey Machine 42,006.96
Vac Trucks 98,673.11
Frac Tanks 17,940.59
Steel Casing 66,936.13
355.89 CY Concrete 80,626.88
Teeth 2,105.43
TOTAL $1,742,904.03
Because the evidence would not support the entirety of
the damages awarded by the district court, we must reverse
that portion of the judgment and remand the cause to the dis-
trict court with directions to enter judgment in the amount of
$1,742,904.03.
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Cite as 312 Neb. 426
V. CONCLUSION
We find that the district court did not err by rejecting
Dietzel’s claims of negligent misrepresentation and breach
of the implied covenant of good faith and fair dealing. We
likewise find no error in the district court’s conclusions that
Dietzel was not entitled to suspend contractual performance
due to Wever’s failure to provide adequate assurances and that
Dietzel committed the first material breach of the contract.
Because, however, we find that the evidence did not sup-
port the entirety of the damages awarded by the district court,
we reverse the district court’s damages award and remand the
cause to the district court with directions to enter judgment
against Dietzel and in favor of Wever on Wever’s breach of
contract claim in the amount of $1,742,904.03 and, taking
into account the offset for Wever’s unjust enrichment liabil-
ity, to order that Dietzel is liable to Wever in the amount of
$1,414,397.03. In all other respects, the judgment of the dis-
trict court is affirmed.
Affirmed in part, and in part reversed
and remanded with directions. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487202/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/18/2022 09:05 AM CST
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IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549
In re Estate of Walter R. Koetter, deceased.
Richard A. Koetter, individually and as the nominated
Personal Representative of the Estate of Walter R.
Koetter, deceased, appellant and cross-appellee,
v. Debra J. Meyers, appellee and cross-appellant,
and Diana K. Wilkinson et al., appellees.
___ N.W.2d ___
Filed October 7, 2022. No. S-21-623.
1. Directed Verdict: Evidence: Appeal and Error. A directed verdict is
proper only when reasonable minds cannot differ and can draw but one
conclusion from the evidence, that is, when an issue should be decided
as a matter of law. In reviewing that determination, an appellate court
gives the nonmoving party the benefit of every controverted fact and all
reasonable inferences from the evidence.
2. Judgments: Verdicts: Appeal and Error. Review of a ruling on a
motion for judgment notwithstanding the verdict is de novo on the
record.
3. Judgments: Verdicts. To sustain a motion for judgment notwithstand-
ing the verdict, the court resolves the controversy as a matter of law and
may do so only when the facts are such that reasonable minds can draw
but one conclusion.
4. ____: ____. On a motion for judgment notwithstanding the verdict, the
moving party is deemed to have admitted as true all the relevant evi-
dence admitted that is favorable to the party against whom the motion
is directed, and, further, the party against whom the motion is directed
is entitled to the benefit of all proper inferences deducible from the rel-
evant evidence.
5. Verdicts: Appeal and Error. When reviewing a jury verdict, an appel-
late court considers the evidence and resolves evidentiary conflicts in
favor of the successful party.
6. Verdicts: Juries: Appeal and Error. A jury verdict may not be set
aside unless clearly wrong, and it is sufficient if there is competent
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IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549
evidence presented to the jury upon which it could find for the success-
ful party.
7. Rules of Evidence. In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by these rules; judicial
discretion is involved only when the rules make discretion a factor in
determining admissibility.
8. Trial: Evidence: Appeal and Error. In a civil case, the admission or
exclusion of evidence is not reversible error unless it unfairly prejudiced
a substantial right of the complaining party.
9. Jurisdiction: Appeal and Error. The question of jurisdiction is a ques-
tion of law, upon which an appellate court reaches a conclusion indepen-
dent of the trial court.
10. Wills: Undue Influence. Undue influence sufficient to defeat a will
is manipulation that destroys the testator’s free agency and substitutes
another’s purpose for the testator’s.
11. Wills: Undue Influence: Proof. To show undue influence, a will
contestant must prove the following elements by a preponderance of
the evidence: (1) The testator was subject to, or susceptible to, undue
influence; (2) there was an opportunity to exercise such influence; (3)
there was a disposition to exercise such influence; and (4) the result was
clearly the effect of such influence.
12. Undue Influence: Proof. Because undue influence is often difficult to
prove with direct evidence, it may be reasonably inferred from the facts
and circumstances surrounding the actor: his or her life, character, and
mental condition.
13. Undue Influence. Mere suspicion, surmise, or conjecture does not war-
rant a finding of undue influence; instead, there must be a solid founda-
tion of established facts on which to rest the inference of its existence.
14. Appeal and Error. An appellate court may find plain error on appeal
when an error unasserted or uncomplained of at trial, but plainly evident
from the record, prejudicially affects a litigant’s substantial right and, if
uncorrected, would result in damage to the integrity, reputation, and fair-
ness of the judicial process. Generally, an appellate court will find plain
error only when a miscarriage of justice would otherwise occur.
15. Motions for New Trial: Appeal and Error. A motion for new trial is to
be granted only when error prejudicial to the rights of the unsuccessful
party has occurred.
16. Statutes: Legislature: Intent. Components of a series or collection of
statutes pertaining to a certain subject matter are in pari materia and
should be conjunctively considered and construed to determine the
intent of the Legislature, so that different provisions are consistent, har-
monious, and sensible.
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IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549
Appeal from the District Court for Red Willow County:
David W. Urbom, Judge. Affirmed in part, and in part vacated
and dismissed.
Michael L. Johnson and Jared J. Krejci, of Smith, Johnson,
Allen, Connick & Hansen, for appellant.
Lindsay E. Pedersen, Attorney at Law, P.C., L.L.O., for
appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
In this appeal from a will contest proceeding in district court,
the proponent of the will contests the jury’s finding that the
will was the product of undue influence and therefore invalid.
He also claims a new trial is warranted because a purported
text message not received in evidence was read on the record
and referenced during closing arguments. We find no merit to
these arguments. But on cross-appeal, in which the opponent of
the will challenges an award of attorney fees and expenses that
the district court purported to award pursuant to Neb. Rev. Stat.
§§ 30-2481 and 30-2482 (Reissue 2016), we conclude that the
district court lacked jurisdiction over that matter. Accordingly,
we vacate the portion of the order that purported to award
attorney fees and expenses and dismiss the cross-appeal.
I. BACKGROUND
1. Probate Proceedings and Will Contest
Initiated in County Court
Walter R. Koetter died in 2017 at the age of 88. Thereafter,
one of his sons, Richard A. Koetter (Dickie), filed a petition in
county court for formal probate of a will executed by Walter
in 2014 (2014 will). Dickie was the nominated personal rep-
resentative of the 2014 will. Debra J. Meyers, one of Walter’s
daughters, objected to the probate of the 2014 will, alleging, in
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IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549
part, that it was the result of undue influence. The will contest
was transferred to district court pursuant to Neb. Rev. Stat.
§ 30-2429.01 (Cum. Supp. 2020). The only issue at the ensuing
jury trial was whether the 2014 will was invalid as a result of
undue influence.
2. Will Contest Proceedings
in District Court
There was evidence at trial that supported both parties’
positions as to undue influence; but considering the governing
standards of review, we recount the evidence relevant to undue
influence in the light most favorable to Debra.
(a) Koetter Family and Farm and
Ranch Operation Overview
The jury heard evidence that Walter, a farmer and rancher in
McCook, Nebraska, had five surviving children at the time of
his death in 2017: Debra, Dickie, Diana K. Wilkinson (Diana),
Donna S. Friehe (Donna), and Douglas S. Koetter. Another son,
Darin Koetter, died in 2003. Walter’s wife, Marilyn Koetter,
also died several years before Walter, in 2011.
Unlike most of Walter and Marilyn’s other children, Dickie
was uninvolved with the family and with the farm for decades.
During that time, he had a series of jobs outside McCook. In
2006, Dickie moved back to the area from Lincoln, Nebraska.
Walter asked Dickie to return, in part to help with the farm
and ranch operation. At first, Dickie lived in town, owned
no real estate, and was not involved in Walter’s operation. In
approximately 2008, Dickie moved from town to live rent free
on an acreage owned by Walter, near the home where Walter
lived. Around that time, Dickie began working in Walter’s
operation, along with Douglas, who had been working there
for about 40 years. Douglas left the operation after less than 2
years of Dickie’s return to the area. Douglas testified that the
operation could not comfortably provide for everyone involved
and that Walter expressed he did not need Douglas on the
farm anymore.
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Cite as 312 Neb. 549
In 2012, Walter transferred a cattle herd to Dickie as com-
pensation, and in 2013 and 2014, Walter paid Dickie wages on
a somewhat irregular basis.
(b) Walter’s Wills and Land Transfers
Walter executed several wills between 2003 and 2012. In
general, those wills divided the estate equally among his six
children, with the children of Walter’s deceased son, Darin,
receiving his share.
When Walter was 84 years old, he executed the 2014 will on
April 25 of that year. The 2014 will devised Walter’s property
as follows: (1) household goods, valued at $5,000, equally to
the five living children; (2) farm machinery and farm equip-
ment, valued at $179,444.71, to Dickie; (3) money in check-
ing or savings accounts, valued at $168,267.66, 70 percent to
Dickie and 30 percent to Douglas; (4) life insurance payable to
the estate, valued at $84,323.50, to the three daughters; and (5)
the remainder of the estate, valued at $5,580.96, 70 percent to
Dickie and 30 percent to Douglas.
On the same day that the 2014 will was executed, Walter
executed deeds conveying interests in real property to Dickie
and Douglas, while reserving a life estate in his own name.
Dickie’s interest was valued at $1,195,750, and Douglas’ inter-
est was valued at $502,053. Debra testified that she was a
party to a pending action to set aside the deeds executed April
25, 2014.
(c) Testimony of Walter’s Attorneys
Jon Schroeder had handled Walter’s estate planning since
2003 and prepared Walter’s 2012 will. He testified that he met
with Walter 10 to 20 times between April 2011 and October
2012 to close Marilyn’s estate and revise Walter’s estate plan.
Schroeder denied discussing transferring a significant por-
tion of Walter’s assets to Dickie, but on Walter’s request, he
discussed other options for compensating Dickie, who began
attending Walter’s meetings with Schroeder in 2011. This was
the first time any of Walter’s children had attended his estate
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planning meetings with Schroeder. Schroeder perceived Dickie
to be “tense” and “aggressive” regarding his compensation
beginning in September 2012, asking “‘How do I get compen-
sated for what I’m doing for dad[?]’” In a meeting sometime
after October 30, Dickie asked several times, “‘What is in
it for me? How am I going to be compensated?’” Schroeder
asked Dickie to leave the room so that he could speak to Walter
alone. Schroeder testified that Dickie did not seem happy with
the request, but left. After he did, Schroeder told Walter, “‘I am
not feeling comfortable with this conversation with Dickie,’”
and Walter replied, “‘I’m not either.’” After that meeting,
Schroeder never saw or spoke to Walter again.
In executing the 2014 will and deeds, Walter was repre-
sented by attorney Justin Hermann. Hermann first met with
Walter to discuss changes to Walter’s estate plan when Walter
came to his office alone in September 2013, having been trans-
ported there by someone else. Hermann testified that prior to
the estate planning work, he had Walter provide him with two
letters from physicians, both finding that Walter had sufficient
testamentary capacity.
Hermann testified that he met with Walter on April 16, 2014,
in his office. At that time, Walter signed updated powers of
attorney and a living will. The will and deeds were prepared,
but because some additional changes were needed, they sched-
uled a followup appointment for their execution. Hermann
testified that he learned from Dickie on April 21 that Walter
had been hospitalized due to chest pains. He was discharged,
but was not allowed to travel, so Hermann arranged to execute
the documents in McCook, where Walter lived, rather than at
Hermann’s office in Kearney, Nebraska. On the day Walter
executed the 2014 will, Walter signed an acknowledgment
that Dickie and Dickie’s wife drove him to the office and
participated in a meeting earlier in the day to discuss a farm
lease involving Dickie that was part of the estate plan, but that
they were not present when Walter and Hermann reviewed the
terms of the will. Hermann testified that he had not observed
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Walter outside his office and did not see everything happening
in Walter’s life.
Hermann testified that he had represented Dickie in another
matter the month before he met with Walter. Hermann testified
he also met with Dickie and his wife to discuss the farm lease,
but he never met with Dickie about the 2014 will. However,
his billing statements reflect that in 2013 and 2014 he had sev-
eral 5-to-10-minute telephone conversations with Dickie’s wife
regarding Walter’s “estate planning.”
(d) Testimony by Physicians
The two physicians who examined Walter in 2013 testified.
Both opined that Walter was able to make decisions for himself
at that time. One of those physicians admitted that he would
not be aware if Walter was being subjected to undue influence
by a family member.
(e) Testimony by Walter’s Family and Neighbors
Debra testified that after Marilyn moved to a nursing home
in 2009, other family members were “taking care” of Walter,
who at that time continued to work in the field. She testified, “I
would do, you know, whatever he needed to do. I was helping
him.” This included taking “sandwiches out to him,” buying
his groceries, taking him to medical appointments, and coordi-
nating his Veterans Affairs benefits.
Members of Walter’s family testified that before Marilyn’s
death in April 2011, Walter frequently gathered with his chil-
dren and grandchildren multiple times a week for meals, farm-
work, and celebrations, but Dickie rarely participated in any
family gatherings, despite being invited. After Marilyn’s death,
the family as a whole no longer celebrated special events with
Walter; he celebrated only with Dickie. Debra recalled that
after Marilyn’s death, she tried to take Thanksgiving dinner
to Walter, but he declined, saying that “Dick[ie] wouldn’t like
it.” Debra testified that from September 2012 until October
2013, whenever she was at Walter’s house, Dickie and his wife
were present.
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Several family members testified that when they visited
Walter alone, he seemed to be checking to see if Dickie was
approaching, and Diana described Walter’s behavior on these
occasions as “agitated” and “fidgety.” Another relative testified
that if Dickie did arrive, Walter became less talkative. Some
viewed Dickie as curtailing Walter’s contact with the rest of
the family.
After 2011, Dickie and his wife, whom Dickie married in
2013, took over buying Walter’s groceries and taking him to
medical appointments. Dickie did not communicate informa-
tion about Walter’s medical condition to the rest of the fam-
ily as Debra had. Dickie also became a signatory on Walter’s
checking account and Walter’s power of attorney, whereas
Debra previously had been Walter’s power of attorney. Dickie
testified that he would prepare Walter’s lunch daily and help
Walter with bills by addressing and stamping envelopes.
Several family members testified that they did not believe
Walter had the ability to make his own decisions after October
2012 and that they believed Dickie was influencing Walter
and overpowering his decisions. Two relatives familiar with
the operation testified that after Dickie came back to town,
Walter, who previously had an opinion on everything and made
decisions on his own, could not make a decision without con-
sulting with Dickie. One of the relatives recounted that once
when he was outdoors, a “couple hundred yards away” from
Dickie and Walter, he heard Dickie “screaming” at Walter.
On another occasion, the same relative saw Walter outside in
102-degree heat, “covered in sweat,” and advised Walter to go
inside to avoid heatstroke. Walter replied, “‘Well, I was told
to stay . . . here. [Dickie’s] going to yell at me,’” but Walter
was subsequently convinced to return to the house. According
to Douglas, Walter had phased out of the operation as he aged,
and “eventually . . . you could say he was out.” When Dickie
and his wife were out of town in 2013, a neighbor helped
Walter with farm chores at Dickie’s residence.
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Several of Walter’s children said that Walter had changed
after Dickie came back, in that he had lost the “spark in his
eye” and his typical “easygoing,” “calm,” “happy,” and “sharp”
demeanor; watched television rather than being active on the
farm; and no longer expressed an interest in family members
other than Dickie and Dickie’s wife. In describing Walter after
Dickie joined the operation, they used descriptions such as
“shaky,” “deathly afraid” of Dickie, “uncomfortable” around
the rest of the family, “a whipped puppy,” “beaten down,”
“stressed,” “closed up,” “timid,” “nervous,” “cowered,” “just
giving up,” “going downhill,” and “getting more intimidated
all the time.”
Jeremy Meyers, one of Walter’s grandsons, testified that
Walter was “getting manipulated” and that Dickie was “start-
ing to put some pressure” on Walter in late 2012 or early 2013.
Jeremy recalled that in July 2013, Walter wrongly accused
him of wanting to take over the operation and Walter said he
had heard it from Dickie. Jeremy testified that in September
2013, he received a text message from Walter’s phone that
was intended, at least in part, for Dickie’s wife. Shortly after,
Jeremy received a call from Walter, who addressed him as
“‘Jeremy’” rather than “‘Jerm’” as he always had. During
the call, Jeremy heard two voices, and in his opinion, Dickie
was coaching Walter to instruct Jeremy to delete the text mes-
sage. Jeremy detected shakiness in Walter’s voice and was
concerned that Walter was under “severe duress.” Later, at
about 7 p.m., Jeremy went to check on Walter, who he found
sitting in the dark, “shaking uncontrollably” and “virtually
sobbing.” Jeremy asked Walter, “‘Did he do something to
you?’” but Walter “wouldn’t tell” Jeremy. Jeremy testified that
he was concerned enough about the incident to report it to law
enforcement.
Walter communicated to several family members and a
neighbor that he intended to change his previous estate plan
to leave the majority of his assets to Dickie and Douglas.
Family members were also aware that Walter had sought out
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a new attorney. Diana recognized that Walter wanted to leave
a legacy in regard to his farm but believed Dickie was mak-
ing the decisions. Debra testified that in October 2013, Dickie
informed her, in Walter’s presence, that Darin’s children were
“being taken completely out of the will.” Debra testified that
she believed they should be included and argued with Dickie
about the matter, and Dickie’s wife also stated her opinion, but
Walter did not say a word. Another daughter, Donna, testified
that Walter told her about his new estate plans in 2016. To
Donna, Walter seemed “anxious” and aware that the informa-
tion would hurt her. When Donna told Walter that she respected
his decision but did not agree, Walter responded, “‘Dick[ie]
says this is how it should be.’”
Dickie denied ever telling Walter how to make his will or
to transfer land, but he testified that he told Walter that if he
divided his estate equally among his children, it would likely
be sold to someone outside the family after his death because
the children could not “get along.”
(f) Undue Influence Expert; Testimony
and Argument Concerning
Text Message
Dr. Lindsey Wylie, an expert called by Dickie, was the first
witness to testify on the second day of the 4-day trial. She
testified to her opinions that Walter’s level of cognition was
high on the date he executed the 2014 will and that he was not
susceptible to undue influence. She based her opinion on depo-
sitions and exhibits supplied to her by Dickie’s counsel.
On cross-examination, Debra’s counsel elicited Wylie’s tes-
timony that if the information supplied to her was faulty or
incomplete, her opinion would be faulty or incomplete. Wylie
confirmed that one of the depositions supplied by Dickie’s
counsel was that of Dickie’s wife. The following colloquy then
took place:
Q. So if [Dickie’s wife] has said—made opposite
statements or contradictory statements, would that be
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something you’d . . . want to take into account when
you’re relying on her deposition?
A. Contradictory statements at what point?
Q. Subsequent to her deposition.
A. I mean, . . . I guess, it would be something I would
. . . want to have known about then when I rendered
my report.
Q. But you were not aware of that?
A. I don’t know what the contradictory statements are,
so I can’t speak to it.
Q. Well, if [Dickie’s wife] indicated in a text to family,
“Dick[ie] was behind all the will changing, and grandpa
had—and had grandpa and I scared to death if it wasn’t
done, he would do something”, would that be a statement
you would be considering—want [to] consider when . . .
rendering an opinion?
A. Yep.
[Dickie’s counsel]: Your Honor, I would object. That
matter’s not in evidence. I would move to strike.
[Debra’s counsel]: Your Honor, she asked what it said.
THE COURT: Yeah, the objection’s overruled. I think
she can answer whether or not that would be something
she would have considered.
BY [Debra’s counsel]:
Q. Would something—that statement want [sic] you to
further vet [Dickie’s wife]?
A. Of course, I would want to have all the information
at the time I rendered my report.
Later during the trial, Dickie’s counsel requested a copy of the
text message. Debra’s counsel acknowledged that it would not
have been provided in response to discovery, but said Debra
planned to use it “when [Dickie’s wife] shows up.” The district
court overruled the “objection,” but noted that Dickie’s counsel
would not be prohibited from making a similar request later.
Dickie’s wife did not testify at trial, and Dickie’s counsel did
not renew his request for a copy of the text message.
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The text message came up again in closing arguments.
Debra’s counsel stated that Wylie’s opinion was based on
depositions supplied by opposing counsel, “not the full infor-
mation.” He next mentioned the text message, and Dickie’s
counsel objected:
[Debra’s counsel]: . . . I think she clarified that, saying
it’s only as good as what she’s been given. And when I
asked her about [Dickie’s wife], and I question, what if
[Dickie’s wife] had sent a text message? She says, what’s
the text message say?
[Dickie’s counsel]: Objection, Your Honor.
THE COURT: Objection is sustained. The text message
isn’t in evidence.
[Debra’s counsel]: The question and answer.
THE COURT: Yes, but not anything about the text
message.
[Debra’s counsel]: No, I quoted the text message.
THE COURT: Okay. You’re fine.
[Dickie’s counsel]: I thought that question was stricken.
[Debra’s counsel]: No, it’s still in the evidence.
THE COURT: Yeah, it’s in. Yeah, the objection is
sustained.
Just as long as you don’t bring up anything about any
text message.
[Debra’s counsel]: Okay.
THE COURT: As far as the content of the text
message.
[Debra’s counsel]: But it’s already in evidence. When
I asked the question, I specifically read it. There was no
objection, and it was answered.
[Dickie’s counsel]: There was an objection.
Your Honor, can we approach?
[Debra’s counsel]: Okay. Your Honor, that’s fine.
THE COURT: You’re okay? All right.
[Debra’s counsel]: All right. Okay. So she said if
she didn’t have all the facts with [Dickie’s wife], she
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basically said, “Yeah, I’d have to reconsider that”, is what
her testimony was.
So, basically, she acknowledged she doesn’t have all
the facts and yet —
[Dickie’s counsel]: Objection, Your Honor. Can we
approach?
(An off-record sidebar was held.)
THE COURT: Go ahead, [Debra’s counsel].
[Debra’s counsel]: Dr. Wylie indicated several of the
witnesses weren’t fully vetted for her, and that she also
indicated that her ability to give an opinion relied solely
on what was supplied to her, solely supplied on one
side . . . .
So when you look at — the expert witness instruction
indicates — you take an expert — she’s no different than
you when coming to this final conclusion, so don’t let
her opinion — or first — apparently, first expert opinion,
which is not fully vetted, sway you in any way. The cred-
ibility you give her is entirely up to you.
The jury was instructed that statements, arguments, and
objections by attorneys were not evidence for its consideration,
nor were questions and answers for which objections had
been sustained.
(g) Jury Verdict and Subsequent
Motions and Orders
The jury returned a verdict finding that the 2014 will was
not valid. The district court accepted the verdict.
Dickie then filed a motion to alter or amend, which asked
the district court to rule on a motion for attorney fees and
expenses pursuant to § 30-2481 that he had earlier filed in the
district court. On the same day, Dickie filed a motion for judg-
ment notwithstanding the verdict. In the alternative, Dickie
moved for a new trial.
In the same order, the district court overruled the motions
for judgment notwithstanding the verdict and for a new trial,
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and sustained the motion to alter or amend regarding attorney
fees and expenses in the amount of $196,914.47. In ruling on
attorney fees and expenses, the district court cited §§ 30-2481
and 30-2482.
Dickie filed an appeal, and Debra cross-appealed.
II. ASSIGNMENTS OF ERROR
On appeal, Dickie assigns several grounds for reversal that,
consolidated and restated, fall into two general categories.
The first category relates to his position that Debra did not
meet her burden of proving the 2014 will was invalid: He
claims that the evidence was insufficient to sustain the jury’s
verdict and that the district court erred in denying his motions
for directed verdict, judgment notwithstanding the verdict,
and new trial. The second category concerns the text mes-
sage. Dickie asserts (1) that the district court erred in allow-
ing Debra’s counsel to ask his expert about the purported text
message, denying his motion to strike his expert’s response,
and not granting his motion for a new trial based on that
exchange, and (2) that misconduct by Debra’s attorney during
closing arguments misled the jury regarding the text message
to such a degree that it resulted in an unjust verdict and con-
stituted plain error.
On cross-appeal, Debra assigns that the district court erred
in awarding attorney fees and expenses to Dickie and in fixing
the amount of those fees.
III. STANDARD OF REVIEW
[1] A directed verdict is proper only when reasonable minds
cannot differ and can draw but one conclusion from the evi-
dence, that is, when an issue should be decided as a matter of
law. In reviewing that determination, an appellate court gives
the nonmoving party the benefit of every controverted fact and
all reasonable inferences from the evidence. Arens v. NEBCO,
Inc., 291 Neb. 834, 870 N.W.2d 1 (2015).
[2-4] Review of a ruling on a motion for judgment not-
withstanding the verdict is de novo on the record. Valley Boys
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v. American Family Ins. Co., 306 Neb. 928, 947 N.W.2d 856
(2020). To sustain a motion for judgment notwithstanding the
verdict, the court resolves the controversy as a matter of law
and may do so only when the facts are such that reasonable
minds can draw but one conclusion. Id. On a motion for judg-
ment notwithstanding the verdict, the moving party is deemed
to have admitted as true all the relevant evidence admitted that
is favorable to the party against whom the motion is directed,
and, further, the party against whom the motion is directed is
entitled to the benefit of all proper inferences deducible from
the relevant evidence. Id.
[5,6] When reviewing a jury verdict, an appellate court
considers the evidence and resolves evidentiary conflicts in
favor of the successful party. Pantano v. American Blue
Ribbon Holdings, 303 Neb. 156, 927 N.W.2d 357 (2019). A
jury verdict may not be set aside unless clearly wrong, and
it is sufficient if there is competent evidence presented to
the jury upon which it could find for the successful party. Id.
See, also, In re Estate of Disney, 250 Neb. 703, 550 N.W.2d
919 (1996).
An appellate court reviews the denial of a motion for new
trial for an abuse of discretion. See Schmid v. Simmons, 311
Neb. 48, 970 N.W.2d 735 (2022).
[7,8] In proceedings where the Nebraska Evidence Rules
apply, the admissibility of evidence is controlled by these rules;
judicial discretion is involved only when the rules make discre-
tion a factor in determining admissibility. Brown v. Morello,
308 Neb. 968, 957 N.W.2d 884 (2021). In a civil case, the
admission or exclusion of evidence is not reversible error
unless it unfairly prejudiced a substantial right of the complain-
ing party. In re Estate of Clinger, 292 Neb. 237, 872 N.W.2d
37 (2015).
[9] The question of jurisdiction is a question of law, upon
which an appellate court reaches a conclusion independent
of the trial court. State ex rel. Peterson v. Creative Comm.
Promotions, 302 Neb. 606, 924 N.W.2d 664 (2019).
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IV. ANALYSIS
1. Undue Influence
We begin with the issue at the heart of these proceedings,
undue influence. At trial, Dickie made several attempts to
preempt or overturn the jury’s verdict that found the 2014 will
invalid. He made unsuccessful motions for a directed verdict at
the close of Debra’s case and at the close of all the evidence,
for judgment notwithstanding the verdict, and, in the alterna-
tive, for new trial, all on the grounds that the evidence did not
prove undue influence. On appeal, he challenges the district
court’s rulings on those motions and further assigns that the
evidence was insufficient to sustain the jury’s verdict. We note
at the outset that Dickie cannot now challenge the ruling on the
motion for directed verdict he made at the close of Debra’s evi-
dence because he proceeded to present his own evidence after
that motion was overruled. See Anderson v. Babbe, 304 Neb.
186, 933 N.W.2d 813 (2019). As for the remaining motions, we
address Dickie’s arguments in a general manner by considering
whether there was competent evidence that allowed the jury
to reasonably find that Walter executed the 2014 will as the
result of undue influence. Although some evidence supported
Dickie’s position, other evidence supported Debra’s position,
and under the applicable standards of review, we conclude
that the evidence was sufficient to sustain the jury’s verdict in
Debra’s favor.
[10,11] Undue influence sufficient to defeat a will is manip-
ulation that destroys the testator’s free agency and substitutes
another’s purpose for the testator’s. In re Estate of Clinger,
supra. To show undue influence, a will contestant must prove
the following elements by a preponderance of the evidence: (1)
The testator was subject to, or susceptible to, undue influence;
(2) there was an opportunity to exercise such influence; (3)
there was a disposition to exercise such influence; and (4) the
result was clearly the effect of such influence. See In re Estate
of Barger, 303 Neb. 817, 931 N.W.2d 660 (2019). See, also,
Spinar v. Wall, 191 Neb. 395, 215 N.W.2d 98 (1974).
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[12,13] Because undue influence is often difficult to prove
with direct evidence, it may be reasonably inferred from the
facts and circumstances surrounding the actor: his or her life,
character, and mental condition. In re Estate of Barger, supra.
Mere suspicion, surmise, or conjecture does not warrant a find-
ing of undue influence; instead, there must be a solid founda-
tion of established facts on which to rest the inference of its
existence. Mock v. Neumeister, 296 Neb. 376, 892 N.W.2d
569 (2017).
Dickie mainly challenges the jury’s verdict by arguing that
because the evidence did not show that Walter suffered from a
mental or physical impairment, it did not establish that he was
susceptible to undue influence. Dickie appears to take the posi-
tion that mental or physical impairment is a required element
of undue influence. Although we have said that suspicious
circumstances tending to show undue influence are indicated
when there is “an elderly testator in a weakened physical or
mental condition,” In re Estate of Barger, 303 Neb. at 835,
931 N.W.2d at 674, we have not held that mental or physical
impairment is essential to a finding of undue influence. And
although there was no evidence that Walter had a specifi-
cally diagnosed mental or physical impairment at the time he
executed the 2014 will, there was evidence that Walter, who
was 84 years old when he executed the 2014 will, exhibited
signs of decline. Whereas Walter previously had been “easy-
going,” “calm,” “happy,” and “sharp,” and had a “spark in
his eye,” there was testimony that after Dickie’s return, he
became “shaky,” “stressed,” “closed up,” “timid,” and “ner-
vous”; “cowered” like a “whipped puppy”; and seemed to be
“just giving up” and “going downhill.”
In addition, there are other factors that can demonstrate
susceptibility to undue influence. In assessing susceptibility,
“[t]he question is . . . whether [the testator’s] natural defenses
are lowered leaving [him or] her unable to resist the sugges-
tions of a stronger, more determined individual.” In re Estate
of Glass, 85 Wis. 2d 126, 140, 270 N.W.2d 386, 393 (1978).
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Factors showing susceptibility recognized by this court have
included a testator’s age, health, and dependence on the person
accused of undue influence for transportation, groceries, and
business affairs. See, In re Estate of Wagner, 246 Neb. 625,
522 N.W.2d 159 (1994); In re Estate of Bainbridge, 151 Neb.
142, 36 N.W.2d 625 (1949); In re Estate of Bowman, 143 Neb.
440, 9 N.W.2d 801 (1943).
Other jurisdictions have likewise cited similar factors,
including dependence and a tendency to be passive and easily
swayed. See, Moriarty v. Moriarty, 150 N.E.3d 616 (Ind. App.
2020) (basing finding of susceptibility on recent death of loved
one, anxiety and depression, medical conditions, isolation from
family and friends, and dependency on others); Matter of
Estate of Smith, 164 Idaho 457, 476, 432 P.3d 6, 25 (2018),
quoting King v. MacDonald, 90 Idaho 272, 410 P.2d 969
(1965) (finding testator susceptible to accused influencer’s spe-
cific influence and stating that “determining whether a testator
was susceptible to undue influence ‘requires a consideration of
many circumstances, including his state of affections or dislike
for particular persons, benefited or not benefited by the will; of
his inclinations to obey or to resist these persons; and, in gen-
eral, of his mental and emotional condition with reference to
its being affected by any of the persons concerned’”); Erickson
v. Olsen, 844 N.W.2d 585, 594 (N.D. 2014) (affirming dis-
trict court’s finding of undue influence where, in contrast to
case in which decedent was “‘his own boss’” and found not
susceptible, testator was “passive and easily influenced” and
dependent on care of others); Hernon v. Hernon, 74 Mass. App.
492, 498-99, 908 N.E.2d 777, 783 (2009) (testator’s suscepti-
bility to undue influence by brother shown by evidence that
although the two had strained and distant relationship, testator
had no choice but to have brother move into his home to care
for him; that he was dependent on brother who drove him to
appointments, including one to attorney’s office to execute
will 2 months before he died; and that brother stated “‘[testa-
tor] will do exactly what I want when it come[s] to his will or
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I’m out of here’”); In re Estate of Glass, supra (susceptibility
factors include testator’s age, personality, physical and mental
health, and ability to handle business affairs); In re Feitag’s
Estate, 9 Wis. 2d 315, 321-22, 101 N.W.2d 108, 111 (1960)
(testator’s susceptibility shown by “testimony that she was
easily led or swayed by people about her,” including incident
in which she “talked about selling a washing machine, but she
didn’t know whether she would because she didn’t think the
appellant would like it”). See, also, In re Estate of Milas, No.
98-2511, 1999 WL 627680 at *3 (Wis. App. Aug. 19, 1999)
(unpublished opinion listed in table at 230 Wis. 2d 186, 603
N.W.2d 748 (Wis. App. 1999)) (identifying fact that “testator
was unusually receptive to the suggestions of another to whom
he consistently deferred on matters of personal importance” as
evidence of susceptibility to undue influence).
In our view, there was other evidence in this case that, in
addition to Walter’s decline, supported a finding that Walter
was susceptible to undue influence. Evidence at trial supported
the inference that Walter was susceptible to undue influence
because Walter depended on Dickie to manage matters rang-
ing from groceries to the farming operation. Evidence showed
that after Marilyn entered the nursing home in 2009, Walter
depended on his family’s assistance with groceries, food, and
medical appointments. After Marilyn died in 2011, Walter
came to rely on Dickie or Dickie’s wife to buy his groceries,
prepare food for him, and take him to medical appointments
and meetings with his attorneys. According to evidence, in
the years before the 2014 will and afterward, it was only
Walter and Dickie involved in Walter’s operation. Douglas
testified that Walter’s involvement in the operation dimin-
ished as he aged, until he “was out.” There was testimony that
rather than being active on the farm, Walter stayed inside and
watched television.
There was also evidence from which the jury could infer
that Walter had become passive and easily led, making him
susceptible to undue influence. The jury heard evidence that
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Walter altered his longtime estate plans despite expressing
discomfort with Dickie’s involvement. From 2003 to 2014,
Walter had consistently maintained an estate plan that generally
divided his assets equally among his children. In September
2011, Dickie began attending meetings between Walter and
Schroeder, who had prepared Walter’s previous wills. The
jury heard Schroeder’s testimony that in October 2012, he
was “‘not feeling comfortable’” with Dickie’s “aggressive”
and repetitive questions about his own compensation during
a consultation with Walter, so much so, that Schroeder asked
Dickie to leave the room. Schroeder recounted that when he
expressed his discomfort to Walter, Walter agreed that he too
was uncomfortable. That was the last time Schroeder saw
Walter. Soon afterward, Walter began consulting about his
estate plan in Kearney with Hermann, who had represented
Dickie in another matter just the previous month. Hermann
eventually prepared the 2014 will that substantially changed
Walter’s prior estate planning.
Other evidence also allowed the jury to make inferences
regarding Walter’s passivity and tendency to yield. The jury
heard testimony that before Dickie’s return, Walter made his
own decisions, but witnesses testified that afterward, Walter
could not make a decision without Dickie, who had been
heard “screaming” at Walter. Jeremy testified about a time in
September 2013 when Dickie seemed to be coaching Walter
to ask Jeremy to delete a text message involving Dickie’s
wife that was mistakenly sent from Walter’s phone. Based
on Walter’s voice, Jeremy testified that he thought Walter
was under “severe duress.” Witnesses recalled specific state-
ments Walter made that showed Dickie’s influence over how
Walter celebrated Thanksgiving, whether he stayed outdoors
in extreme heat, how he communicated with the rest of the
family, how he ran his operation, and, most significantly, how
he devised his estate. Donna testified that when she expressed
disagreement with Walter’s plans to leave most of his assets to
Dickie and Douglas, Walter responded, “‘Dick[ie] says this is
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how it should be.’” And there was evidence that it was Dickie
who informed Debra of certain provisions of the 2014 will
and, in tandem with his wife, argued with Debra when she
objected, while Walter sat silent. Dickie admitted that he told
Walter that if he divided his estate equally among his children
as he had long planned, it would likely be sold to someone
outside the family after his death because the children could
not get along.
We are also unpersuaded by Dickie’s allegation that proof of
undue influence failed because the 2014 will was not executed
in secret. We have observed that undue influence can be dif-
ficult to prove because it is “usually surrounded by all possible
secrecy” and “[is] not exert[ed] in a crowd.” In re Estate of
Hedke, 278 Neb. 727, 743, 775 N.W.2d 13, 28 (2009). But
we have not required secrecy to prove undue influence, and
we made the foregoing observations to explain why undue
influence often rests on inferences drawn from circumstantial
evidence. See id. “Such evidence shows a course of conduct
over a period of time intended to influence the mind of the tes-
tator.” In re Estate of Villwok, 226 Neb. 693, 698, 413 N.W.2d
921, 925 (1987). Here, the jury could have inferred that
Walter’s informing his family about the content of the 2014
will weighed against a finding of undue influence, but it would
not have been unreasonable for the jury to make the opposite
inference that these communications were a product of undue
influence that Dickie had already exerted largely in secret. The
fact that Walter did not conceal the provisions of the 2014 will
from his children does not render the jury’s undue influence
finding unreasonable.
2. Text Message
Dickie next presents two assignments of error related to
Debra’s counsel’s reference during the cross-examination of
Wylie to a purported text message sent by Dickie’s wife.
He first argues that the district court erred by allowing the
question and not immediately striking Wylie’s answer from
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the record. Additionally, he argues that the district court’s
response to counsel’s reference to the text message in closing
arguments was plain error. We disagree with both of Dickie’s
arguments.
Beginning with Dickie’s contentions regarding the initial
cross-examination, Dickie asserts that the question Debra’s
counsel asked about the purported text message was improper,
because the text message was not in evidence. According
to Dickie, the only reason Debra’s counsel could have had
for asking the question was to get information damaging to
Dickie’s case that was not admitted into evidence before the
jury. For these reasons, Dickie argues that the district court
abused its discretion by not sustaining his objection and grant-
ing his motion to strike Wylie’s answer.
There is no dispute that at the time the question at issue was
asked, no evidence had been admitted of Dickie’s wife’s send-
ing a text message like the one described by Debra’s counsel.
Likewise, there is no dispute that no such evidence was ever
admitted. Based on our record, then, we must treat the ques-
tion as a hypothetical question that assumed facts that were not
yet, and never were, admitted into evidence. Even framed this
way, however, we conclude that the district court could, within
the bounds of its discretion, permit the question and overrule
Dickie’s motion to strike.
There may be circumstances in which a party wishes to
cross-examine an expert witness by asking a hypothetical ques-
tion that refers to certain facts not yet in evidence. Although
this court does not appear to have specifically addressed the
matter, a number of courts and commentators have recognized
that, in such a situation, a trial court has discretion to permit
the question even though the supporting evidence has not been
admitted. As the Illinois Supreme Court has explained, a trial
court can permit a party to ask a question that assumes facts
not yet in evidence in cross-examination, because the cross-
examining party may not have yet had the opportunity to
present the evidence referred to in the question. See Coriell v.
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Industrial Com., 83 Ill. 2d 105, 413 N.E.2d 1279, 46 Ill. Dec.
166 (1980). If such a question is permitted and the evidence
never materializes, that court explained, there is a safeguard—a
subsequent motion to strike by the opposing party. See id.
The Hawaii Supreme Court reached the same basic conclu-
sion in Barretto v. Akau, 51 Haw. 383, 463 P.2d 917 (1969),
as to hypothetical questions that were based on facts not yet
in evidence and aimed at demonstrating an alternative theory
or contesting a substantive element of the case. That court
also held that a trial court could permit such questions if the
cross-examiner anticipated in good faith that the facts would
be established later in the trial. It also explained that if the
cross-examining party failed to eventually introduce evidence
of the facts assumed, the opponent’s remedy was a motion to
strike at the close of all evidence. See, also, United States v.
Benford, 479 Fed. Appx. 186 (11th Cir. 2011) (finding no error
in case in which trial court permitted line of questioning which
assumed facts not yet in evidence on assumption that question-
ing party would later introduce evidence supporting assump-
tions and opposing party did not request curative instruction
when such evidence was not later admitted); 1 McCormick on
Evidence § 14 at 134 (Robert P. Mosteller ed., 8th ed. 2020)
(explaining that in most jurisdictions, “there is no invariable
requirement that the supporting evidence be admitted before
the interrogating counsel poses the hypothetical question to
the expert”).
The foregoing authorities persuade us that a trial court does
not necessarily abuse its discretion if it permits a party to ask
an expert a question that assumes facts not yet in evidence
during cross-examination. Having reached this conclusion, we
can conclude rather easily that the district court did not abuse
its discretion by allowing the question and overruling Dickie’s
motion to strike here.
Wylie was the first witness to testify on the second day of
a 4-day trial. She generally testified that based on her review
of deposition testimony and other information provided to her,
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she did not believe Walter was susceptible to undue influence.
Among the materials she considered in forming that opinion
was the deposition testimony of Dickie’s wife. The question
at issue made reference to a purported text message sent by
Dickie’s wife that presumably contradicted that deposition
testimony. And although Debra’s counsel did not mention that
Debra intended to offer evidence of the text message at the
time the question was asked and corresponding objection was
made, later that same day, he did represent to the district court
that the text message would be “use[d]” when Dickie’s wife
was called to testify. Under these circumstances, it was not
clearly untenable for the district court to permit Debra’s coun-
sel to ask Wylie if a text message like the one described would
affect her conclusions. See Barnett v. Happy Cab Co., 311 Neb.
464, 973 N.W.2d 183 (2022) (judicial abuse of discretion exists
when reasons or rulings of trial judge are clearly untenable,
unfairly depriving litigant of substantial right and denying just
results in matters submitted for disposition).
We recognize that Dickie’s wife ultimately did not testify
and that evidence of the text message was not received into
evidence. This may have entitled Dickie to a ruling striking
Wylie’s answer at the close of all evidence, but he did not
request such a ruling.
[14] This leaves Dickie’s contention regarding the closing
argument made by Debra’s counsel. Dickie frames his argu-
ment in plain error terms. We have said that an appellate court
may find plain error on appeal when an error unasserted or
uncomplained of at trial, but plainly evident from the record,
prejudicially affects a litigant’s substantial right and, if uncor-
rected, would result in damage to the integrity, reputation, and
fairness of the judicial process. State v. Senteney, 307 Neb.
702, 950 N.W.2d 585 (2020). Generally, we will find plain
error only when a miscarriage of justice would otherwise
occur. Id.
We presume Dickie presents a plain error argument because
he cannot contend that the district court erred in ruling on the
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objection he actually asserted during closing argument. When
Debra’s counsel first made reference to a text message, Dickie’s
counsel objected, but the district court sustained the objection
and directed Debra’s counsel not to refer to the text message.
Unable to establish that the district court erred in response
to his objection, Dickie apparently argues that the district
court had an obligation to take additional action in response to
Debra’s closing argument on its own initiative. Here, Dickie
takes issue with statements by Debra’s counsel that the text
message and Wylie’s answer were in evidence and with what
he contends was an argument by Debra’s counsel that Wylie
admitted she would reconsider her opinions in light of the
text message.
To the extent Dickie is arguing that the district court was
obligated to interrupt Debra’s closing argument sua sponte to
address the statements to which he now objects, we disagree.
When considering arguments that a trial court erred by “allow-
ing” testimony to which there was no objection, we have dis-
cussed the fact that even when a question or answer is arguably
improper, sua sponte action by the trial court may interfere
with a party’s trial tactics by bringing unwanted attention to the
testimony. See Senteney, supra. In our view, similar consider-
ations apply in the closing argument context.
[15] Neither can we agree with Dickie that the district court
was obligated to grant his motion for new trial based on the
closing argument of Debra’s counsel. A motion for new trial
is to be granted only when error prejudicial to the rights of
the unsuccessful party has occurred. Hemsley v. Langdon, 299
Neb. 464, 909 N.W.2d 59 (2018). Further, we review the dis-
trict court’s denial of the motion for new trial for an abuse of
discretion. See id. We discern no such abuse. The district court
sustained Dickie’s objection and precluded Debra’s counsel
from referring to the text message in oral argument. Although
Debra’s counsel stated that the text message was in evidence,
we understand that statement to have been made as an argu-
ment to the district court responsive to Dickie’s objection,
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not an argument to the jury. In any event, the jury had been
instructed that statements, arguments, and objections by attor-
neys were not evidence. And we do not understand Debra’s
counsel to have clearly argued that Wylie admitted she would
have to reconsider her opinions in light of the text message.
3. Attorney Fees and Expenses
In her cross-appeal, Debra argues that the district court erred
when it ordered that Dickie was entitled to attorney fees and
expenses incurred in defending the will contest proceeding.
Before reaching this issue, however, it is our duty to determine
whether we have jurisdiction to decide it. See Green v. Seiffert,
304 Neb. 212, 933 N.W.2d 590 (2019).
When a lower court lacks subject matter jurisdiction to
decide an issue, an appellate court also lacks the power to
resolve the issue. See In re Estate of Evertson, 295 Neb. 301,
889 N.W.2d 73 (2016). This case presents a question as to
whether the district court had subject matter jurisdiction to
order that Dickie was entitled to attorney fees and expenses
pursuant to § 30-2481. Although not initially raised by the
parties, we directed the parties to file supplemental briefs on
the issue. In their respective supplemental briefs, Debra argues
that the district court lacked jurisdiction and that any award
of attorney fees pursuant to § 30-2481 must be ordered by the
county court, while Dickie maintains that the district court had
jurisdiction to make its attorney fees order.
We begin our analysis by reviewing various statutory provi-
sions that we believe are helpful in framing the question. First,
under Neb. Rev. Stat. § 24-517(1) (Reissue 2016), county
courts have exclusive jurisdiction over all matters relating to
decedents’ estates, including the probate of wills and construc-
tion thereof. See In re Estate of Forgey, 298 Neb. 865, 906
N.W.2d 618 (2018). Notwithstanding this grant of authority to
county courts, § 30-2429.01 authorizes parties to transfer pro-
ceedings regarding the validity of a will to the district court.
Section 30-2429.01 provides, in relevant part:
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(3) Upon the filing of the certification as provided in
subsection (2) of this section in the district court, such
court shall have jurisdiction over the proceeding on the
contest. Within thirty days of the filing of such certifica-
tion, any party may file additional objections.
(4) The district court may order such additional plead-
ings as necessary and shall thereafter determine whether
the decedent left a valid will. Trial shall be to a jury
unless a jury is waived by all parties who have filed
pleadings in the matter.
(5) The final decision and judgment in the matter
transferred shall be certified to the county court, and pro-
ceedings shall be had thereon necessary to carry the final
decision and judgment into execution.
Dickie sought an award of attorney fees in the district court
pursuant to § 30-2481, which provides: “If any personal rep-
resentative or person nominated as personal representative
defends or prosecutes any proceeding in good faith, whether
successful or not he is entitled to receive from the estate his
necessary expenses and disbursements including reasonable
attorneys’ fees incurred.”
We believe the following section, § 30-2482, is also rel-
evant. Subsection (1) of § 30-2482 provides:
After notice to all interested persons or on petition of an
interested person or on appropriate motion if administra-
tion is supervised, the propriety of employment of any
person by a personal representative including any attor-
ney, [or] the reasonableness of the compensation of any
person so employed, . . . may be reviewed by the court.
Subsection (2) of § 30-2482 lists a number of factors that
may be considered in determining the reasonableness of a fee.
In our view, the question of whether the district court had
jurisdiction to order that Dickie receive an award of attor-
ney fees and expenses pursuant to § 30-2481 depends on the
scope of authority granted to the district court by statute. We
find the scope of the district court’s statutory authority to be
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crucial, because the district court’s general jurisdiction does
not extend to probate matters, and thus, any district court
authority over such matters is derived from and limited by
legislative grant. See In re Estate of Sehi, 17 Neb. App. 697,
772 N.W.2d 103 (2009).
On the subject of statutory authority, § 30-2429.01(4) plainly
authorizes the district court to determine whether the decedent
left a valid will. In one of our recent opinions, we cited that
subsection for the proposition that a district court’s authority
over a will contest is “limited to determin[ing] whether the
decedent left a valid will.” See Bohling v. Bohling, 309 Neb.
625, 634, 962 N.W.2d 224, 231 (2021). Debra relies on that
language to argue that the district court lacked authority to
also order that Dickie be reimbursed for his attorney fees and
expenses pursuant to § 30-2481. We believe that this issue is
slightly more complicated and that we cannot resolve it merely
by citing this language in Bohling, supra.
While § 30-2429.01(4) does direct that the district court is
to determine whether the challenged will was valid, subsection
(3) provides that when a will contest is duly transferred to the
district court, the district court obtains “jurisdiction over the
proceeding on the contest.” We understand this language to
give the district court jurisdiction over the will contest pro-
ceeding and thus the authority to resolve issues that bear on
whether the decedent left a valid will. We recognized as much
in Bohling, supra, stating that the district court in a will con-
test may decide issues of will construction to the extent they
bear on the will’s validity. Because the district court is given
jurisdiction over the will contest proceeding, we also under-
stand the district court to have the authority to issue orders
instrumental to a determination of whether the challenged will
is valid on matters such as the admissibility of evidence or the
conduct of discovery.
We disagree with Dickie, however, that a determination
of whether a personal representative or nominated personal
representative should be reimbursed by the estate for attorney
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fees incurred in a will contest pursuant to § 30-2481 is right-
fully encompassed within the will contest proceeding. Instead,
we are persuaded that such a determination is part of the rest
of the probate proceeding and committed to the jurisdiction of
the county court. This conclusion is informed by §§ 30-2481
and 30-2482. As described above, § 30-2481 provides that
a personal representative or nominated personal representa-
tive is, under certain conditions, entitled to be reimbursed by
the estate for expenses incurred in estate litigation, including
reasonable attorney fees. And, as described above, § 30-2482
directs that a personal representative’s employment of persons,
including attorneys, and the reasonableness of compensation
paid to such persons are subject to court review.
[16] We find that the foregoing statutes pertain to the same
subject matter and are thus subject to our principle of statu-
tory interpretation governing statutes in pari materia. As we
often say, components of a series or collection of statutes
pertaining to a certain subject matter are in pari materia and
should be conjunctively considered and construed to deter-
mine the intent of the Legislature, so that different provisions
are consistent, harmonious, and sensible. In re William R.
Zutavern Revocable Trust, 309 Neb. 542, 961 N.W.2d 807
(2021). Applying this principle here, we find that § 30-2482
sets forth the procedure by which a court is authorized to
determine whether and to what extent a personal representa-
tive or nominated personal representative is entitled to be
reimbursed from the estate for expenses in estate litigation
pursuant to § 30-2481. Importantly, § 30-2482 provides that
such review is to be completed by “the court.” This is sig-
nificant because, under the Nebraska Probate Code, with an
exception not applicable here, “the court” is defined to refer
to the county court unless “the context otherwise requires.”
See Neb. Rev. Stat. § 30-2209 (Reissue 2016). We do not
believe that the context of § 30-2482 requires that “the court”
mean anything other than the county court, as provided in
§ 30-2209.
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We find confirmation of our conclusion that § 30-2482
provides the procedure by which a court can review claims
for reimbursement pursuant to § 30-2481 in an opinion of
the North Dakota Supreme Court. See Matter of Estate of
O’Connell, 476 N.W.2d 8 (N.D. 1991). That court interpreted
North Dakota statutes based on the same Uniform Probate
Code provisions upon which §§ 30-2481 and 30-2482 are
based. It found that claims for reimbursement for estate litiga-
tion sought under § 30-2481’s North Dakota counterpart were
subject to court review pursuant to § 30-2482’s North Dakota
counterpart. See Matter of Estate of O’Connell, supra.
We are not swayed from our conclusion that a determina-
tion under § 30-2481 is committed to the jurisdiction of the
county court by Dickie’s reliance on In re Estate of Miller, 231
Neb. 723, 437 N.W.2d 793 (1989), disapproved, In re Estate
of Anderson, 311 Neb. 758, 974 N.W.2d 847 (2022). In that
case, this court held that a county court lacked authority to
tax costs and fees for the allegedly vexatious pursuit of a will
contest. In doing so, however, we noted that there was no pro-
vision in the Nebraska Probate Code relating to the assessment
of costs and attorney fees in a will contest action which had
been transferred to a district court and that there was a statute
authorizing the district court to order a party who pursued pro-
ceedings vexatiously or for delay to pay costs to the adverse
party. See In re Estate of Miller, supra citing Neb. Rev. Stat.
§ 24-541.10(2) (Reissue 1985).
In this case, unlike In re Estate of Miller, supra, Dickie is
not asking that an opposing party be ordered to pay his costs
on the grounds that the opposing party engaged in vexatious
litigation. As we have discussed, he has asked that he be reim-
bursed by the estate pursuant to § 30-2481. And that is not the
only difference between this case and In re Estate of Miller,
supra. While our opinion in In re Estate of Miller noted the
absence of a provision in the Nebraska Probate Code address-
ing the type of fees sought and a specific statute authorizing
the district court to order such fees, as we have discussed, the
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Nebraska Probate Code has committed the determination of
whether a party is entitled to reimbursement under § 30-2481
to the county court.
Although we find that a party’s entitlement to reimburse-
ment under § 30-2481 is committed to the county court, we
recognize that during a will contest proceeding in district court,
the district court may have the occasion to, directly or indi-
rectly, weigh in on whether a nominated personal representa-
tive’s defense of the will contest was undertaken in good faith.
Nothing in this opinion should be read to preclude the county
court from considering any such statements along with the rest
of the district court record in assessing whether the proceeding
was defended in good faith.
For these reasons, we find that the district court lacked juris-
diction to find that Dickie was entitled to attorney fees pursu-
ant to § 30-2481. When we determine that we lack jurisdiction
over the decision of a lower court because the lower court
lacked jurisdiction, we have the power to vacate the void order
of the lower court and, if necessary, to remand the cause with
appropriate directions. See Davis v. Moats, 308 Neb. 757, 956
N.W.2d 682 (2021). We therefore vacate the portion of the dis-
trict court’s order finding that Dickie was entitled to attorney
fees and expenses pursuant to § 30-2481.
V. CONCLUSION
Because the district court lacked jurisdiction to enter its
order awarding attorney fees pursuant to § 30-2481, we vacate
that order and dismiss the cross-appeal. As to the issues raised
on appeal, we affirm.
Affirmed in part, and in part
vacated and dismissed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487198/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/18/2022 09:05 AM CST
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STATE V. VANDERFORD
Cite as 312 Neb. 580
State of Nebraska, appellee, v.
Christine E. Vanderford, appellant.
___ N.W.2d ___
Filed October 14, 2022. No. S-20-849.
1. Trial: Convictions: Evidence: Appeal and Error. An appellate court
will sustain a conviction in a bench trial of a criminal case if the prop-
erly admitted evidence, viewed and construed most favorably to the
State, is sufficient to support that conviction. In making this determina-
tion, an appellate court does not resolve conflicts in the evidence, pass
on the credibility of witnesses, evaluate explanations, or reweigh the
evidence presented, because these are within a fact finder’s province for
disposition. Instead, the relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a
reasonable doubt.
2. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law, for which an appellate court has an obligation to reach an
independent conclusion irrespective of the decision made by the court
below.
3. Statutes. Statutory analysis begins with the text.
4. Statutes: Appeal and Error. Statutory language is to be given its plain
and ordinary meaning, and an appellate court will not resort to inter-
pretation to ascertain the meaning of statutory words which are plain,
direct, and unambiguous.
5. Statutes. It is not within the province of the courts to read meaning
into a statute that is not there or to read anything direct and plain out of
a statute.
6. Statutes: Legislature: Intent. Components of a series or collection of
statutes pertaining to a certain subject matter may be conjunctively con-
sidered and construed to determine the intent of the Legislature so that
different provisions of an act are consistent, harmonious, and sensible.
7. Criminal Law: Statutes. Penal statutes must be strictly construed and
are considered in the context of the object sought to be accomplished,
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the evils and mischiefs sought to be remedied, and the purpose sought
to be served. A penal statute will not be applied to situations or parties
not fairly or clearly within its provisions.
8. ____: ____. To determine the elements of a crime, courts look to the text
of the enacting statute.
9. Criminal Law: Intent: Words and Phrases. A person commits the
crime of exploiting a vulnerable adult under Neb. Rev. Stat. § 28-386
(Reissue 2016) by knowingly and intentionally engaging in an act which
causes or permits a “vulnerable adult,” as that term is defined in Neb.
Rev. Stat. § 28-371 (Reissue 2016), to be subjected to “exploitation,” as
that term is defined in Neb. Rev. Stat. § 28-358 (Reissue 2016).
10. Criminal Law: Statutes: Words and Phrases. Although the statutory
definition of exploitation in Neb. Rev. Stat. § 28-358 (Reissue 2016) is
broad enough to encompass what might generally be described as finan-
cial exploitation, it is by no means limited to only financial crimes.
11. Appeal and Error. An appellate court is not obligated to engage in an
analysis that is not necessary to adjudicate the case and controversy
before it.
12. ____. An alleged error must be both specifically assigned and specifi-
cally argued in the brief of the party asserting the error to be considered
by an appellate court.
13. Convictions. A conviction on one count cannot be overturned merely
because it is inconsistent with the fact finder’s decision not to convict
on another count.
14. Criminal Law: Trial: Judges. A trial judge sitting without a jury is not
required to articulate findings of fact or conclusions of law in crimi-
nal cases.
15. Trial. In civil cases, parties may ask a court to make specific findings
under Neb. Rev. Stat. § 25-1127 (Reissue 2016), but that statute has no
application to criminal proceedings.
Appeal from the District Court for Lancaster County:
Robert R. Otte, Judge. Affirmed.
Robert B. Creager, of Anderson, Creager & Wittstruck, P.C.,
for appellant.
Douglas J. Peterson, Attorney General, and Melissa R.
Vincent for appellant.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
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Stacy, J.
Following a bench trial, Christine E. Vanderford was found
guilty of exploiting a vulnerable adult, in violation of Neb. Rev.
Stat. § 28-386 (Reissue 2016). The district court sentenced her
to 5 years’ probation. Vanderford appeals, and we affirm.
I. BACKGROUND
At the time of the events giving rise to the criminal charges
in this case, Vanderford was a licensed attorney in Lincoln,
Nebraska. On December 5, 2019, she was charged with exploi-
tation of a vulnerable adult (a Class IIIA felony) and theft by
deception, $5,000 or more (a Class IIA felony). The State later
amended the theft charge to theft by unlawful taking, $5,000 or
more (a Class IIA felony).
As relevant to the exploitation charge, the information
alleged that Vanderford “on, about, or between July 8, 2014
and February 28, 2018, in the County of Lancaster and State
of Nebraska, then and there being, through a knowing and
intentional act, did cause or permit a vulnerable adult or senior
adult to be exploited.” The exploitation charges were based
on Vanderford’s conduct while serving as a court-appointed
coguardian for J.R.K., an adult woman with disabilities, and
simultaneously serving as cotrustee of a special needs trust
established for J.R.K.’s benefit.
Vanderford entered not guilty pleas and waived her right to
a jury trial. A bench trial was held over the course of several
days, and both parties adduced evidence. We summarize that
evidence in the next section, to the extent necessary to address
the assignments of error raised on appeal.
1. Evidence Adduced at Trial
(a) J.R.K.
J.R.K. is an adult woman with mental disabilities. Due
to these disabilities, she receives Social Security disability
income and qualifies for Medicaid benefits, including voca-
tional and residential services. During the relevant time peri-
ods, J.R.K. lived with, and was assisted in her daily activities
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by, an “extended family home provider” (EFH), who was paid
a daily contract rate by the State of Nebraska. J.R.K. also
earned income from working part-time jobs.
(b) J.R.K.’s Guardianship,
Conservatorship, and Trusts
In 2006, J.R.K. moved to Nebraska to live with her mother
and stepfather (the Krotzes). That same year, the Krotzes
hired Vanderford to set up a guardianship and conservator-
ship for J.R.K., and both were established in the county court
for Lancaster County. The Krotzes were appointed to serve as
J.R.K.’s coconservators and coguardians.
In 2011, J.R.K.’s biological father died and J.R.K. received
an inheritance. The Krotzes hired Vanderford to set up a trust
designed to allow J.R.K. to keep her inheritance without losing
her government benefits. Vanderford established an “irrevo-
cable supplemental needs trust” for J.R.K.’s benefit, with the
Krotzes serving as cotrustees. After the irrevocable supple-
mental needs trust was established, J.R.K.’s conservatorship
was terminated, but the guardianship continued.
About 2 years later, Vanderford assisted the Krotzes in cre-
ating a second trust for J.R.K.’s benefit. Vanderford created
a “self-settled special needs trust” (SSSNT), and its stated
purpose was “to supplement, but not replace any benefits
or assistance of any Federal or State governmental entity
to which Beneficiary may be eligible or which Beneficiary
may be receiving.” The Krotzes were named as cotrustees of
the SSSNT, and Vanderford was named as alternate succes-
sor trustee.
(c) Vanderford Appointed J.R.K.’s Coguardian
and Begins Handling J.R.K.’s Finances
In 2014, J.R.K.’s mother died. J.R.K.’s stepfather did not
want to handle the guardianship responsibilities alone, and
he asked Vanderford to serve as J.R.K.’s coguardian and
to assume primary handling of J.R.K.’s financial affairs.
Vanderford agreed, but told the stepfather that because she
had a solo legal practice, she may need to charge her regular
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hourly legal rate for services provided to J.R.K. during busi-
ness hours. The stepfather agreed to such a billing arrange-
ment, assuming it would be “an infrequent thing,” because the
EFH was primarily responsible for taking J.R.K. to medical
and dental appointments and driving her on excursions during
the day. There was no evidence that the guardianship court
was made aware of, or approved of, the billing arrangement
proposed by Vanderford.
In July 2014, the county court appointed Vanderford to
serve as J.R.K.’s coguardian. The letters of guardianship con-
tained the following admonishment in bold and underlined
typeface:
You shall not pay compensation to yourself or your
attorney from assets or income of your ward/incapaci-
tated person . . . without first giving notice to inter-
ested persons and obtaining an order of the court. The
order may be entered without a hearing if all inter-
ested person have waived notice or have executed their
written consent to the fee.
In addition to this admonishment on compensation, the letters of
guardianship required Vanderford to file, annually, “a complete
accounting of your administration of the ward’s . . . money,
assets, possessions or income (including social security or other
benefits) if you have possession of such.” 1
Several months after Vanderford was appointed as J.R.K.’s
coguardian, the SSSNT was amended to make Vanderford a
cotrustee. From that point on, Vanderford established a close
relationship with J.R.K., who grew to consider Vanderford
her “best friend.” The record shows the two exchanged hun-
dreds of text messages, went to movies and baseball games
together, attended J.R.K.’s therapy and medical appointments
together, and went on trips together. Vanderford characterized
1
See Neb. Rev. Stat. § 30-2628(6) (Reissue 2016) (“[a] guardian is required
to report the condition of his or her ward and of the estate which has been
subject to the guardian’s possession or control, at least every year and as
required by the court or court rule”).
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her relationship with J.R.K. as that of “proxy mother” and
testified that she was asked to assume such a role by J.R.K.’s
mother before she died. 2
(d) Vanderford Becomes Cosigner
on J.R.K.’s Accounts
Before Vanderford began managing J.R.K.’s finances, three
accounts had been set up for J.R.K.’s benefit. One account was
described as J.R.K.’s guardianship account, another was an
investment account associated with the SSSNT, and the third
was an account associated with the irrevocable supplemental
needs trust. After Vanderford was appointed coguardian and
named cotrustee of the SSSNT, she became an authorized
cosigner on J.R.K.’s accounts.
In addition, Vanderford opened three new accounts for
J.R.K. at the same bank where Vanderford kept her business
and personal accounts. One of the new accounts was desig-
nated as a guardianship account for J.R.K. and was funded
primarily by J.R.K.’s Social Security income. Another account
was designated as a “special needs trust” account, although the
evidence showed it was operated as an ordinary bank account.
The third account was designated as a “debit card account,”
which J.R.K. was also authorized to use subject to daily spend-
ing limits; this account was funded in part by J.R.K.’s wages,
gifts, and transfers from other accounts maintained for J.R.K’s
benefit.
The evidence showed that from November 2015 forward,
all of J.R.K.’s accounts—both old and new—were managed
primarily by Vanderford. However, when Vanderford filed
her annual guardianship accountings in 2016 and 2017, she
included only the accounts designated as J.R.K.’s guardianship
accounts; Vanderford did not report or provide an accounting
for any of the other accounts maintained for J.R.K.’s benefit
over which Vanderford had control.
2
Brief for appellant at 7.
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(e) Vanderford’s Financial Difficulties
The evidence was undisputed that while Vanderford was
serving as coguardian for J.R.K. and as cotrustee of the SSSNT,
she was experiencing significant financial problems within her
law practice. When the financial problems persisted into 2016,
Vanderford hired a business consultant to advise her.
After a review, the consultant identified significant financial
issues within the firm. She noted that Vanderford pulled “exor-
bitant amounts of money out of the business for personal spend-
ing without regard to payroll or other overhead.” The firm did
not have enough money to “make ends meet,” and employees’
paychecks were “bouncing.” According to the consultant, these
financial issues stemmed in part from the fact that Vanderford
was “constantly distracted,” “rarely complete[d] work in a
timely manner,” and had “no consistent follow through as far
as entering time to be billed.” It was the consultant’s opinion
that Vanderford tracked her billable time “by her calendar,”
“via emails,” or just “in her head.” After months of working
unsuccessfully to correct these financial issues, the consultant
terminated the relationship with Vanderford’s firm.
(f) Investigations
In early 2017, the EFH working with J.R.K. became sus-
picious when she learned that the money in one of J.R.K.’s
accounts was being rapidly depleted. The EFH reported her
concerns to her supervisor, 3 and an Adult Protective Services
investigator was assigned to look into the matter.
The investigator met with J.R.K., after which she reviewed
J.R.K.’s guardianship records, bank records, and J.R.K.’s indi-
vidual service plan at the Department of Health and Human
Services. The investigator discovered that Vanderford had
been transferring money between J.R.K.’s accounts and mak-
ing payments to herself out of J.R.K.’s accounts. The guard-
ianship court was notified of the Adult Protective Services
3
See Neb. Rev. Stat. § 28-372 (Reissue 2016) (setting out reporting require-
ments for suspected abuse, neglect, or exploitation of vulnerable adult).
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investigation; eventually, Vanderford and J.R.K.’s stepfather
agreed to step down as J.R.K.’s coguardians, and a successor
guardian was appointed for J.R.K. in early 2018.
In March 2018, Adult Protective Services completed its
investigation and concluded that J.R.K. was being financially
exploited by Vanderford. Adult Protective Services turned its
findings over to the Lincoln Police Department, and an offi-
cer assigned to the department’s technical investigations unit
looked into the matter further. His investigation revealed that
while serving as J.R.K.’s coguardian and cotrustee of the
SSSNT, Vanderford made multiple payments to herself out of
J.R.K.’s accounts without court approval. Vanderford claimed
those payments were meant to compensate her for various legal
and personal services she performed for J.R.K. and for various
services performed by Vanderford’s paralegal. Almost all of the
services were billed at Vanderford’s hourly legal rate of $215
or at her paralegal’s hourly rate. Although the investigator was
not able to locate an invoice for every payment to Vanderford,
he was able to match up some payments with invoices prepared
by Vanderford’s law firm.
The invoices in our record show extensive billing by
Vanderford for services related to J.R.K. Many of the billing
entries were for nonlegal services related to J.R.K.’s personal
care and maintenance, including invoices for communicat-
ing with J.R.K., accompanying J.R.K. to counseling sessions
and medical appointments, and meeting with others regarding
J.R.K.’s behaviors, needs, and benefits. Examples of such bill-
ings include:
••A charge of $5,805 for 27 hours of work, described on the
invoice as:
[C]ounselor meeting attendance (6 meetings) to help
address [J.R.K.’s] behavior issues, doctors appointments
(arranging them and attending) including her medical
review nurse, Michelle Lemon, and tweaking medica-
tion type and dosage, attending IPP meetings (semi and
annual, including travel to and back, approximately 2
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hours each), working with [J.R.K.’s] EFH’s regarding
[J.R.K.’s] behaviors . . . , meetings with Richard and/or
Richard and EFH to coordinate [J.R.K.’s] needs; inter-
viewing ILC at meeting with ILC to see if [J.R.K.] needs
work transferred from Vital
••A charge of $9,083.75 for 42.25 hours of work, described on
the invoice as:
[I]nvolvement with email communication regarding
[J.R.K.]; 169 Emails not yet invoiced to [J.R.K.] for
2015 and 2016 regarding her care, filing for her Medicaid
renewable, taking care of her tax situation, oversight on
guardianship paperwork for 2015 - through 9/20/2016
••A charge of $1,935 for 9 hours of work, described on the
invoice as:
Preparation of Trip to Florida; take [J.R.K.] to Omaha for
TSA PreCheck; take [J.R.K.] again after first trip didn’t
yield results
••A charge of $1,612.50 for 7.50 hours of work, described on
the invoice as:
[T]ravel to get [J.R.K.] to take her to work; travel to get
[J.R.K.] to take her to dental appointment that was can-
celled, travel to take [J.R.K.] to go to Verizon to buy new
phone and spend time getting new phone set up; addi-
tional time with [J.R.K.’s] phone at Verizon to straighten
out billing issues.
As the above billings suggest, J.R.K. took a trip to Florida
in 2017. Vanderford accompanied J.R.K. on that trip, after
which she paid herself $4,000 from one of J.R.K.’s accounts.
Although no invoice was located for this payment, the memo-
randum line on the check reads: “Florida $500 day per diem/
8 days.”
When paying these invoices, Vanderford regularly used
checks from J.R.K’s various accounts and made them out to
herself or her law firm. On at least one occasion, Vanderford
caused J.R.K.’s account to incur an overdraft fee after writing
a check to herself which did not clear. On another occasion,
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Vanderford transferred funds from one of J.R.K.’s accounts
directly into Vanderford’s personal checking account which,
prior to the transfer, was overdrawn.
According to the investigator’s findings, Vanderford made
16 payments to herself from J.R.K.’s various accounts totaling
$65,258.89. The record shows that Vanderford made most, if
not all, of these payments to herself without seeking or obtain-
ing prior court approval.
2. Verdict
In September 2020, the district court announced its verdict
in open court. On count 1, exploitation of a vulnerable adult,
the court recited that the State had proved all material ele-
ments of the crime beyond a reasonable doubt, and it found
Vanderford guilty. In a written verdict entered the same day,
the court expressly found the State had proved beyond a rea-
sonable doubt:
1. That J.R.K. was a vulnerable adult, and
2. That [Vanderford] did cause or permit or subject
J.R.K[.], to exploitation, and
3. That [Vanderford] did so knowingly and intention-
ally, and
4. That the actions of [Vanderford] took place on or
about or between July 8, 2014, and February 28, 2018, in
Lancaster County, Nebraska.
The written verdict also stated that the court, in reaching its
verdict, used the definition of “[v]ulnerable adult” appearing
in Neb. Rev. Stat. § 28-371 (Reissue 2016), the definition of
“[s]ubstantial mental impairment” appearing in Neb. Rev. Stat.
§ 28-369 (Reissue 2016), and the definition of “[e]xploitation”
appearing in Neb. Rev. Stat. § 28-358 (Reissue 2016). We
address these statutory definitions later in our analysis.
On count 2, theft by unlawful taking in the amount of
$5,000 or more, the court found Vanderford not guilty. The
court set the matter for sentencing and ordered a presentence
investigation.
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3. Posttrial Motion and Sentencing
Vanderford filed a timely motion for new trial under Neb.
Rev. Stat. § 29-2101 (Reissue 2016), asserting, among other
things, that her acquittal on the theft charge was inconsistent
with her conviction for exploitation and that the evidence was
insufficient to support the conviction. The court overruled the
motion for new trial and sentenced Vanderford to 5 years’
probation. Vanderford filed this timely appeal, represented by
trial counsel.
II. ASSIGNMENTS OF ERROR
Vanderford assigns, reordered and rephrased, that the dis-
trict court erred in convicting her of exploiting a vulnerable
adult, because (1) the definition of exploitation necessarily
requires proof of a financial crime and the State failed to
prove a financial crime; (2) there was insufficient evidence
that it was “wrongful or unauthorized” 4 for Vanderford to pay
herself from J.R.K.’s accounts; (3) the State failed to prove
that Vanderford acted with sufficient mens rea to support the
offense of exploiting a vulnerable adult, because such a con-
viction cannot be “based upon negligence or a mere breach of
a fiduciary duty”; (4) the guilty verdict on count 1 was incon-
sistent with the acquittal on count 2; (5) sentencing remarks by
the court contradict the guilty verdict; and (6) the district court
failed to make sufficient conclusions of law when rendering
its verdict.
III. STANDARD OF REVIEW
[1] An appellate court will sustain a conviction in a bench
trial of a criminal case if the properly admitted evidence,
viewed and construed most favorably to the State, is sufficient
to support that conviction. 5 In making this determination, an
appellate court does not resolve conflicts in the evidence,
pass on the credibility of witnesses, evaluate explanations, or
4
§ 28-358.
5
State v. Taylor, 310 Neb. 376, 966 N.W.2d 510 (2021).
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reweigh the evidence presented, because these are within a fact
finder’s province for disposition. 6 Instead, the relevant ques-
tion is whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a rea-
sonable doubt. 7
[2] Statutory interpretation presents a question of law, for
which an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision made by the
court below. 8
IV. ANALYSIS
1. Proving Exploitation of Vulnerable Adult
Several of Vanderford’s arguments on appeal challenge
whether the district court correctly identified the material ele-
ments that the State needed to prove in order to convict her of
the crime of exploiting a vulnerable adult. Her other arguments
are generally aimed at challenging the sufficiency of the evi-
dence to support her conviction. To address these arguments,
we begin by interpreting the statutes setting forth the material
elements of the crime for which Vanderford was convicted—
exploitation of a vulnerable adult.
[3-7] Statutory analysis begins with the text. 9 Statutory lan-
guage is to be given its plain and ordinary meaning, and an
appellate court will not resort to interpretation to ascertain the
meaning of statutory words which are plain, direct, and unam-
biguous. 10 Similarly, it is not within the province of the courts
to read meaning into a statute that is not there or to read any-
thing direct and plain out of a statute. 11 Components of a series
6
Id.
7
Id.
8
State v. Chase, 310 Neb. 160, 964 N.W.2d 254 (2021).
9
Taylor, supra note 5.
10
State v. Knight, 311 Neb. 485, 973 N.W.2d 356 (2022).
11
Id.
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or collection of statutes pertaining to a certain subject matter
may be conjunctively considered and construed to determine
the intent of the Legislature so that different provisions of an
act are consistent, harmonious, and sensible. 12 Penal statutes
must be strictly construed and are considered in the context of
the object sought to be accomplished, the evils and mischiefs
sought to be remedied, and the purpose sought to be served. 13
A penal statute will not be applied to situations or parties not
fairly or clearly within its provisions. 14
[8] To determine the elements of a crime, we look to the
text of the enacting statute. 15 The crime of exploiting a vulner-
able adult is contained within the Adult Protective Services
Act (APSA). 16 Determining the elements of that crime requires
consideration of several statutes within the APSA.
The APSA criminalizes the knowing and intentional exploi-
tation of a vulnerable adult in § 28-386, which provides, in
relevant part:
(1) A person commits knowing and intentional . . .
exploitation of a vulnerable adult or senior adult if he or
she through a knowing and intentional act causes or per-
mits a vulnerable adult or senior adult to be:
....
(d) Exploited.
....
(2) Knowing and intentional . . . exploitation of a vul-
nerable adult or senior adult is a Class IIIA felony.
For purposes of the APSA, a “[v]ulnerable adult” is defined in
§ 28-371 as “any person eighteen years of age or older who has
a substantial mental or functional impairment or for whom a
12
State v. Hofmann, 310 Neb. 609, 967 N.W.2d 435 (2021).
13
Id.
14
Id.
15
State v. Grutell, 305 Neb. 843, 943 N.W.2d 258 (2020).
16
See Neb. Rev. Stat. §§ 28-348 to 28-387 (Reissue 2016 & Cum. Supp.
2020).
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guardian or conservator has been appointed under the Nebraska
Probate Code.”
The term “exploitation” for purposes of the APSA is
defined in § 28-358. When the APSA was first enacted in
1988, exploitation was defined as “the taking of property of
a vulnerable adult by means of undue influence, breach of
a fiduciary relationship, deception, or extortion or by any
unlawful means.” 17 Effective July 19, 2012, the Legislature
amended the definition of “exploitation” to mean “the taking
of property of a vulnerable adult by any person by means of
undue influence, breach of a fiduciary relationship, deception,
or extortion or by any unlawful means.” 18 And in 2016, the
statutory definition of “exploitation” was amended again. 19 It
currently provides:
Exploitation means the wrongful or unauthorized tak-
ing, withholding, appropriation, conversion, control, or
use of money, funds, securities, assets, or any other prop-
erty of a vulnerable adult or senior adult by any person by
means of undue influence, breach of a fiduciary relation-
ship, deception, extortion, intimidation, force or threat of
force, isolation, or any unlawful means or by the breach
of a fiduciary duty by the guardian, conservator, agent
under a power of attorney, trustee, or any other fiduciary
of a vulnerable adult or senior adult. 20
This expanded definition of exploitation has been in effect
since April 19, 2016. We note that the information charging
Vanderford with intentional or knowing exploitation of a vul-
nerable adult alleged a timeframe from July 8, 2014, through
February 28, 2018, so both the 2012 and the 2016 statutory
definitions of exploitation are potentially relevant.
17
See 1988 Neb. Laws, L.B. 463, § 11, codified at § 28-358 (Reissue 1995).
18
See 2012 Neb. Laws, L.B. 1051, § 6 (emphasis supplied), codified at
§ 28-358 (Cum. Supp. 2012).
19
See 2016 Neb. Laws, L.B. 934, § 4, codified at § 28-358 (Reissue 2016).
20
§ 28-358.
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[9] Reading §§ 28-386, 28-371, and 28-358 together, it is
clear that a person commits the crime of exploiting a vulner-
able adult by knowingly and intentionally engaging in an act
which causes or permits a “vulnerable adult,” as that term is
defined in § 28-371, to be subjected to “exploitation,” as that
term is defined in § 28-358.
In this appeal, Vanderford asserts that to prove the elements
of exploitation of a vulnerable adult, the State must necessarily
prove “a financial crime against a vulnerable adult.” 21 More
specifically, Vanderford asserts that “[t]he offense of exploita-
tion is a financial crime, that requires [proof of] an underlying
theft or wrongful or [un]authorized taking.” 22 She argues that
the court erred in failing to find the same. Vanderford does not
explain what, precisely, she means by a “financial crime,” but
regardless, we think her argument oversimplifies the current
statutory scheme.
The current definition of “exploitation” lists six proscribed
acts: the wrongful or unauthorized “taking,” “withholding,”
“appropriation,” “conversion,” “control,” or “use” of prop-
erty belonging to the vulnerable adult or senior adult. And
it describes five categories of property: “money,” “funds,”
“securities,” “assets,” or “any other property of a vulnerable
adult or senior adult.” Most of these categories can fairly be
characterized as financial in nature, but the catchall category
of “any other property” is broad enough to encompass both
real property and personal property. Finally, the definition of
exploitation lists the means by which the proscribed acts must
be accomplished by the perpetrator, and those means are not
restricted to financial scenarios. Rather, the possible means
include: “undue influence,” “breach of a fiduciary relation-
ship,” “deception,” “extortion,” “intimidation,” “force or threat
of force,” “isolation,” “any unlawful means,” or by “the breach
of a fiduciary duty by the guardian, conservator, agent under a
21
Brief for appellant at 12.
22
Id. at 8.
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power of attorney, trustee, or any other fiduciary of a vulner-
able adult or senior adult.”
[10] As such, under the current definition of “exploitation,”
there are a myriad of different ways to commit the crime of
exploiting a vulnerable adult. And although the statutory defini-
tion of exploitation in § 28-358 is broad enough to encompass
what might generally be described as financial exploitation, it
is by no means limited to only financial crimes. We therefore
reject, as impermissibly narrow, Vanderford’s contention that
proving the crime of exploitation necessarily requires proof of
a financial crime.
We likewise reject Vanderford’s suggestion that the district
court erred when it recited the material elements of exploita-
tion of a vulnerable adult. With respect to count 1, the court
recited in its written verdict that the State had the burden to
prove each of the following elements beyond a reasonable
doubt: (1) that J.R.K. was a vulnerable adult as defined in
§§ 28-371 and 28-369; (2) that Vanderford knowingly and
intentionally caused or permitted J.R.K. to be exploited as
defined in § 28-358; and (3) that Vanderford did so on, about,
or between the dates of July 8, 2014, and February 28, 2018,
in Lancaster County. We find that the court’s order correctly
recited the material elements which the State was required to
prove beyond a reasonable doubt on the charge of exploitation
of a vulnerable adult.
With these material elements in mind, and considering the
evidence in the light most favorable to the State, we next
consider whether the evidence was insufficient to convict
Vanderford of exploiting a vulnerable adult.
Most of the pertinent evidence was undisputed. Vanderford
does not dispute that J.R.K. is a vulnerable adult. She admits
that “there was a fiduciary relationship between Vanderford
and J.R.K.,” and she admits that she owed J.R.K. a fiduciary
duty as her court-appointed coguardian and as cotrustee of
the SSSNT established for J.R.K.’s benefit during the relevant
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timeframe. 23 She also admits that during the relevant time
period, she billed J.R.K. for personal services at the hourly rate
she used for legal work, and then paid herself from J.R.K.’s
accounts without requesting or obtaining approval from the
guardianship court.
The letters of guardianship, as well as the order appoint-
ing Vanderford to serve as coguardian, expressly prohibited
Vanderford from paying compensation to herself from J.R.K.’s
assets or income without first obtaining an order of the court.
The evidence showed that Vanderford regularly disregarded
this requirement. She knowingly and intentionally used her
position as coguardian and cotrustee to repeatedly compensate
herself from accounts established for J.R.K. over which she
had control, and she did so without seeking or obtaining court
approval. And despite managing multiple accounts containing
J.R.K’s money, assets, and income, Vanderford did not pro-
vide the guardianship court with a complete accounting of her
administration of those accounts. Whether or not Vanderford
was deliberately attempting to hide her conduct from the guard-
ianship court, this improper exercise of power was wrongful
and unauthorized under the letters of guardianship, as well as
the order appointing Vanderford to serve as coguardian, and
resulted in a breach of the fiduciary duty Vanderford owed to
J.R.K. as her court-appointed guardian.
As such, a rational trier of fact could have found that
Vanderford’s knowing and intentional conduct in compensat-
ing herself from J.R.K.’s accounts, without obtaining prior
court approval, caused or permitted J.R.K. to be exploited as
that term is defined in § 28-358. The evidence supports the
conclusion that Vanderford’s intentional conduct resulted in the
wrongful or unauthorized taking, appropriation, conversion, or
use of J.R.K.’s money, funds, or assets, and that Vanderford
did so either by means of the breach of a fiduciary relation-
ship or by the breach of a fiduciary duty as J.R.K.’s guardian.
23
See brief for appellant at 22.
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And, for the sake of completeness, we note that the evidence
is sufficient under both the current definition of exploita-
tion in § 28-358 and the definition in effect before the 2016
amendments.
[11] The State also argues that Vanderford committed other
wrongful and unauthorized acts which amounted to exploita-
tion of a vulnerable adult. But ultimately, we need not address
those arguments. We have already determined that a rational
trier of fact could have found the essential elements of the
crime beyond a reasonable doubt, 24 and it is unnecessary to dis-
cuss all the possible ways in which the evidence might support
a finding of exploitation. An appellate court is not obligated
to engage in an analysis that is not necessary to adjudicate the
case and controversy before it. 25
2. Vanderford’s Arguments Challenging
Sufficiency of Evidence
Vanderford presents four arguments challenging the suffi-
ciency of the evidence to support her conviction for exploiting
a vulnerable adult. We address each argument in turn and find
all to be meritless.
(a) Consent of J.R.K.’s Stepfather
First, Vanderford argues the evidence does not support a
finding that her conduct was “wrongful or unauthorized.” She
points to evidence that J.R.K.’s stepfather and coguardian
agreed early on that Vanderford could charge her regular hourly
legal rate for providing guardianship services and that he “was
aware of and approved of what Vanderford was doing.” 26
[12] Vanderford’s brief also broadly states that “[t]he evi-
dence established that [she] was permitted or authorized by the
24
See Taylor, supra note 5.
25
Gonzales v. Nebraska Pediatric Practice, 308 Neb. 571, 955 N.W.2d 696
(2021).
26
Brief for appellant at 14.
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Trust instruments to pay herself for legal services and for per-
sonal services she provided to J.R.K.” 27 But Vanderford neither
describes nor explains which trust terms she is relying on for
this statement. 28 Nor does she present any argument explaining
how or why the trust instruments in this case authorized her to
compensate herself from J.R.K.’s assets without seeking prior
approval from the guardianship court. Because an alleged error
must be both specifically assigned and specifically argued in
the brief of the party asserting the error to be considered by an
appellate court, 29 we do not consider Vanderford’s unsupported
assertion that the trust instruments authorized her conduct.
Further, we soundly reject Vanderford’s suggestion that
the coguardian’s apparent knowledge and tacit approval of
her conduct in compensating herself from J.R.K.’s accounts
without obtaining prior court approval has any bearing on
whether her conduct was wrongful and unauthorized. It is
undisputed that during the entire time Vanderford was paying
herself from J.R.K.’s assets, she was serving as J.R.K.’s court-
appointed guardian and was subject to the express admonish-
ment that “You shall not pay compensation to yourself or
your attorney from assets or income of your ward/inca-
pacitated person . . . without first . . . obtaining an order
of the court.” This admonition could not have been more
clear, and it contained no exceptions. Absent court approval,
Vanderford’s conduct in paying herself from J.R.K.’s assets
was wrongful and unauthorized, and the coguardian’s tacit
approval of such conduct is immaterial. Her argument in this
regard is meritless.
27
Id. at 13.
28
See Neb. Ct. R. App. P. § 2-109(D)(1)(g) (rev. 2022) (“[e]ach and
every recitation of fact, whether in the statement of facts or elsewhere
in the brief, shall be annotated to the record in the manner set forth in
§ 2-109(C)”).
29
State v. Malone, 308 Neb. 929, 957 N.W.2d 892 (2021), modified on
denial of rehearing 309 Neb. 399, 959 N.W.2d 818.
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(b) Acquittal on Theft Charge
Next, Vanderford argues that her acquittal on the charge of
theft by unlawful taking in the amount of $5,000 or more com-
pels the conclusion that the evidence was insufficient to con-
vict her of exploitation of a vulnerable adult. She contends the
verdicts are inconsistent and “do not square with each other,
nor with the facts of the case.” 30 There are two problems with
her argument.
First, the statutory elements to prove theft by unlawful tak-
ing are not the same as the elements to prove exploitation of
a vulnerable adult. 31 The crimes are separate and distinct. 32
Vanderford’s acquittal on the theft charge does not suggest
the evidence was somehow insufficient to convict her of the
exploitation charge.
[13] Moreover, a conviction on one count cannot be over-
turned merely because it is inconsistent with the fact finder’s
decision not to convict on another count. 33 Vanderford cannot
successfully challenge her conviction for exploitation of a vul-
nerable adult by arguing that it is inconsistent with the court’s
decision to acquit her of theft by unlawful taking in the amount
of $5,000 or more.
(c) Mens Rea
Vanderford also argues that the State failed to prove she
acted with sufficient mens rea or criminal intent to support
the felony offense of exploiting a vulnerable adult. As we
understand her argument, she does not dispute that her conduct
amounted to a breach of duty, but she argues that “for a breach
30
Brief for appellant at 14.
31
Compare Neb. Rev. Stat. § 28-511 (Reissue 2016) (statute defining theft
by unlawful taking) with §§ 28-386 and 28-358 (statutes defining exploita-
tion of vulnerable adult).
32
See, e.g., State v. Dehning, 296 Neb. 537, 894 N.W.2d 331 (2017) (defend
ant convicted of theft by unlawful taking and exploiting vulnerable adult
arising from same set of facts).
33
See State v. Briggs, 303 Neb. 352, 929 N.W.2d 65 (2019).
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of [fiduciary] duty to be criminal, the breach must be more
than an act of simple negligence.” 34 In other words, she claims
that “§§28-386 and [28-]358 cannot be interpreted to punish
a simple breach of fiduciary duty (negligence) as a felony.” 35
But § 28-386 does not punish a simple breach of fiduciary
duty. It criminalizes a “knowing and intentional act [that]
causes or permits a vulnerable adult or senior adult to be . . .
exploited.” 36 The breach of fiduciary relationship or duty is not
the required mens rea for the crime; it is just one of several
means by which to accomplish a “wrongful or unauthorized
taking, withholding, appropriation, conversion, control, or use
of money, funds, securities, assets, or any other property” of a
vulnerable adult or senior adult, and thus satisfy the definition
of “exploitation” under § 28-358.
Here, the evidence was sufficient to show beyond a reason-
able doubt that Vanderford’s knowing and intentional con-
duct in compensating herself from J.R.K.’s accounts, without
obtaining prior court approval, caused or permitted J.R.K. to
be exploited as that term is defined in § 28-358. There is no
merit to Vanderford’s suggestion that the State failed to prove
the requisite criminal intent to convict her of exploiting a vul-
nerable adult.
(d) Judge’s Sentencing Remarks
Vanderford asserts that remarks made by the trial court
during sentencing contradict or undermine the written guilty
verdict and require that the conviction be vacated. Before
addressing this assertion, we summarize the pertinent sentenc-
ing remarks.
After hearing allocution, but before imposing sentence, the
judge recounted some of the evidence presented at trial. In doing
so, the judge highlighted the evidence regarding the reporting
failures, accounting irregularities, billing irregularities, and
34
Brief for appellant at 22.
35
Id. at 21.
36
§ 28-386.
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overdraft fees. He then said to Vanderford, “[Y]ou were at a
time in your life, I believe, where you weren’t running your
law practice as one might have expected. I think that’s just
so clear.” The judge then said, “[O]verall, I don’t believe that
there was the kind of financial exploitation — meaning, money
wrongfully taken from the trust [—] that maybe the State
does,” adding, “I don’t think it is possible to go through the
pennies and figure [it] out.”
Relying on these statements, Vanderford now argues that
her conviction should be vacated because “the Court’s own
words at sentencing established that the Court was clearly
wrong” 37 in finding her guilty of exploiting a vulnerable adult.
We disagree.
We see nothing about the court’s sentencing remarks, under-
stood in context, which contradicts, undermines, or calls into
doubt its prior verdict finding that Vanderford was guilty of
exploiting a vulnerable adult. We do not understand the court’s
remarks to suggest it was equivocating on that conviction in
any way. Rather, it appears the court was merely noting that it
did not necessarily agree with the State’s position regarding the
total sum of money that was wrongfully taken by Vanderford
while serving as J.R.K.’s guardian. Such an observation may
have been intended to explain why the court thought a sen-
tence of probation was appropriate for the Class IIIA felony
offense, or it may have been intended as an explanation for
why Vanderford was acquitted on the theft charge. Either way,
the statement had no impact on the conviction for exploiting a
vulnerable adult. We reject Vanderford’s claim that the sentenc-
ing remarks provide a basis to challenge the conviction.
3. Specific Conclusions of Law
Vanderford’s final argument on appeal is that the district
court “erred in failing to make sufficient conclusions of law
to support its guilty verdict.” Before addressing Vanderford’s
argument, we provide some additional background.
37
Brief for appellant at 21.
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(a) Additional Facts
At the pretrial hearing during which Vanderford waived
her right to jury trial, Vanderford’s counsel brought up what
he described at the time as “proposals” for waiving jury
under which the court would “make some particular findings,
mostly conclusions of law.” The State expressed no objec-
tion to defense counsel’s proposal, and after some additional
discussion with counsel, the court indicated it was willing to
issue a written order “specify[ing] the material elements of the
offenses . . . like a jury instruction would set out the material
elements of the offense.” After this discussion, Vanderford
waived her right to jury trial, confirming on the record that she
understood her right to a jury trial, that she had conferred with
her counsel regarding that right, and that she was waiving that
right freely and voluntarily. The court accepted Vanderford’s
waiver and set the matter for a bench trial.
(b) Vanderford’s Argument
On appeal, Vanderford assigns that the court erred by “failing
to make sufficient conclusions of law to support its guilty ver-
dict as required by the express conditions of [Vanderford’s] jury
waiver.” During oral argument before this court, Vanderford’s
counsel described Vanderford’s jury waiver as “conditional”
and argued that if the court had not been willing to make spe-
cific written conclusions of law, Vanderford would “never have
waived jury.” As we will explain, this assignment of error has
no merit.
We begin by rejecting Vanderford’s suggestion that her
jury waiver decision was expressly conditioned on the court’s
agreement to make written conclusions of law. Vanderford
states that she “contemplated a jury waiver to focus on the
legal issues as to . . . the essential elements of the exploitation
offense and what mens rea or criminal intent element had to be
proven as to that charge.” 38 We understand this to suggest that
Vanderford and her counsel thought there would be a tactical
38
Id. at 15.
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advantage to trying the case to the court because, unlike a jury
verdict, the court may be willing to make specific findings of
fact and conclusions of law that could help Vanderford focus
the issues on appeal. But we see nothing in the record suggest-
ing that Vanderford’s jury waiver was in any way conditional.
Despite Vanderford’s characterization, we are aware of no
statute or case law in Nebraska authorizing a defendant to
make a “conditional jury waiver” or authorizing a court to
accept one. But we see plenty of reasons for trial courts to be
especially cautious about making any statement or agreement
that might be perceived as inducing a defendant to waive a
constitutional right.
In People v. Collins, 39 for example, the California Supreme
Court found that a criminal defendant’s waiver of the right to
jury trial was invalid because, prior to accepting the waiver, the
trial court had informed the defendant that he would receive
some unspecified benefit if he waived a jury trial. On appeal,
the defendant argued the trial court’s statement amounted to
an improper inducement to waive the right to jury, and the
California Supreme Court agreed. It reasoned that “after hav-
ing been advised by the trial court that he would receive some
benefit of an undetermined nature to be determined by the
court at a later time, the defendant no longer could be said to
have voluntarily relinquished his right to jury trial.” 40 Thus,
even though the waiver colloquy was otherwise proper and
thorough, the trial court was found to have “acted in a manner
that was at odds with its judicial obligation to remain neutral
39
People v. Collins, 26 Cal. 4th 297, 27 P.3d 726, 109 Cal. Rptr. 2d 836
(2001). See, also, 6 Wayne R. LaFave et al., Criminal Procedure § 22.1(h)
at 41-42 (4th ed. 2015) (“[s]ometimes a ‘jury waiver agreement,’ expressly
assuring the defendant of certain punishment concessions . . . is unobjec-
tionable so long as the negotiations were with the prosecutor rather than
the trial judge”).
40
Collins, supra note 39, 26 Cal. 4th at 311, 27 P.3d at 736, 109 Cal. Rptr.
2d at 847.
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and detached in evaluating the voluntariness of the waiver,” 41
and the defendant’s conviction was reversed.
Notably, Vanderford has not assigned or argued that her
decision to waive jury was improperly induced or should
be deemed invalid. But even if she had, we see nothing in
the record suggesting that the court did, or said, anything to
induce Vanderford to waive her right to a jury trial or acted
in a manner inconsistent with its judicial obligation to remain
neutral and detached in evaluating the voluntariness of any
jury waiver. To the contrary, it was Vanderford’s counsel who
first asked whether the court would make written conclusions
of law. After clarifying the nature of defense counsel’s request
and confirming the State had no objection, the court agreed
to make written conclusions of law, which it had discretion
to do.
The crux of Vanderford’s argument is not that there was
something improper about the court’s willingness to make writ-
ten conclusions of law, but, rather, that the court’s conclusions
were insufficient. We disagree. As we read the trial court’s
written verdict, it made all of the findings and conclusions of
law requested by the defense and discussed by the parties dur-
ing the pretrial hearing. It identified the material elements of
the charge on which Vanderford was convicted, and it made
an express finding that the State had proved each material
element beyond a reasonable doubt. To the extent Vanderford
complains on appeal that the written verdict did not “define
the proper mens rea element of that offense” or “explain the
Court’s interpretation of the statute,” her arguments are simply
not supported by the record. 42
[14,15] More important, we question whether the failure to
make factual findings and conclusions of law could ever result
in reversible error in a case such as this. Although criminal
trial courts have discretion to make specific findings of fact
41
Id. at 309, 27 P.3d at 734, 109 Cal. Rptr. 2d at 845.
42
See brief for appellant at 16.
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and conclusions of law in criminal cases tried to the bench,
the law does not compel it. In Nebraska, a trial judge sitting
without a jury is not required to articulate findings of fact or
conclusions of law in criminal cases. 43 In civil cases, parties
may ask a court to make specific findings under Neb. Rev.
Stat. § 25-1127 (Reissue 2016), but we have been clear that
§ 25-1127 has “‘no application to criminal proceedings.’” 44
So, although defendants are free to ask courts to make specific
findings or conclusions of law in criminal bench trials, they are
not entitled to compel such findings or conclusions as a mat-
ter of law, because they are discretionary. So even if the trial
court’s conclusions of law were not as detailed as Vanderford
would have liked, that does not provide a basis for revers-
ible error.
V. CONCLUSION
The State proved beyond a reasonable doubt that Vanderford,
while serving as a court-appointed guardian for a vulner-
able adult, knowingly and intentionally caused her ward to be
exploited in violation of § 28-386. Finding no merit to any of
the assignments of error raised on appeal, we affirm the judg-
ment of the district court.
Affirmed.
43
State v. Franklin, 241 Neb. 579, 489 N.W.2d 552 (1992). See, also, State
v. Cowan, 204 Neb. 708, 711, 285 N.W.2d 113, 115 (1979) (“[t]here is no
rule of law which requires the trial judge, acting as the trier of fact in a
criminal case, to make any special findings of fact”).
44
Franklin, supra note 43, 241 Neb. at 587, 489 N.W.2d at 557, quoting
State v. Lozano, 209 Neb. 772, 311 N.W.2d 529 (1981). See, also, State
v. Dake, 247 Neb. 579, 582, 529 N.W.2d 46, 48 (1995) (explaining that
§ 25-1127 “does not apply to criminal cases”). | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350266/ | Bregaudit v Loretto Health & Rehabilitation Ctr. (2022 NY Slip Op 07367)
Bregaudit v Loretto Health & Rehabilitation Ctr.
2022 NY Slip Op 07367
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, WINSLOW, AND MONTOUR, JJ.
863 CA 21-01590
[*1]EDISON BREGAUDIT, PLAINTIFF-APPELLANT,
vLORETTO HEALTH AND REHABILITATION CENTER, DEFENDANT-APPELLANT, AND PRO SCAPES, INC., DEFENDANT-RESPONDENT.
SMITH, SOVIK, KENDRICK & SUGNET, P.C., SYRACUSE (DAVID M. KATZ OF COUNSEL), FOR DEFENDANT-APPELLANT.
WOODRUFF LEE CARROLL P.C., SYRACUSE (WOODRUFF LEE CARROLL OF COUNSEL), FOR PLAINTIFF-APPELLANT.
COSTELLO, COONEY & FEARON, PLLC, SYRACUSE (KELLY J. PARE OF COUNSEL), FOR DEFENDANT-RESPONDENT.
Appeals from an order of the Supreme Court, Onondaga County (Joseph E. Lamendola, J.), entered August 3, 2021. The order, among other things, granted the motion of defendant Pro Scapes, Inc. for summary judgment.
It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying those parts of the motion of defendant Pro Scapes, Inc. for summary judgment dismissing the amended complaint against it, for summary judgment dismissing the cross claim against it insofar as that cross claim seeks common-law indemnification and for summary judgment on its cross claim, and reinstating the amended complaint against it and the cross claim against it insofar as that cross claim seeks common-law indemnification, and as modified the order is affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries allegedly sustained when he slipped and fell on ice and snow on the entrance ramp outside premises owned and operated by defendant Loretto Health and Rehabilitation Center (Loretto). As relevant here, Loretto had entered into a contract with defendant Pro Scapes, Inc. (Pro Scapes) for snow removal services at the facility.
On the date of the accident, Pro Scapes had been performing snow removal services from approximately 1:00 a.m. until 10:00 a.m. during a winter storm that began the day before. After Pro Scapes' employees left the facility, Pro Scapes received a call requesting that their workers return because they had done "an awful job." Pro Scapes sent two employees back to Loretto, where they shoveled from 12:10 p.m. until 12:49 p.m., and then laid down two bags of deicer. Sometime thereafter, plaintiff, who was transporting a resident of the facility inside, slipped and fell on snow and ice on the sidewalk ramp in front of the building. Plaintiff injured his knee and shoulder. In his amended complaint, as amplified by his "fourth answer to the [demand for a] bill of particulars [by Pro Scapes]" (fourth supplemental bill of particulars), plaintiff alleged, inter alia, that he had slipped on ice and snow "located in an area where a pile of snow would accumulate when plowing the circle in front of the ramp." Plaintiff further alleged that the "entrance was inadequately salted," which "caused the ice and snow . . . remaining on the walk to melt and refreeze creating additional ice" (emphasis added).
Pro Scapes moved for summary judgment dismissing the amended complaint against it, for summary judgment dismissing Loretto's cross claim against it for common-law and contractual indemnification and contribution, and for summary judgment on its cross claim [*2]against Loretto for contractual indemnification. Loretto filed a cross motion seeking, inter alia, summary judgment dismissing Pro Scapes' cross claim. Supreme Court, inter alia, granted Pro Scapes' motion and denied Loretto's cross motion. Plaintiff and Loretto now appeal.
We agree with plaintiff and Loretto that the court erred in determining that Pro Scapes did not owe plaintiff a duty of care. "As a general rule, a contractual obligation, standing alone, does not give rise to tort liability in favor of a third party" (Lorquet v Timoney Tech. Inc., 188 AD3d 1584, 1585 [4th Dept 2020] [internal quotation marks omitted]). There is an exception to that general rule, however, "where the contracting party, in failing to exercise reasonable care in the performance of [its] duties, 'launche[s] a force or instrument of harm' " (Espinal v Melville Snow Contrs., 98 NY2d 136, 140 [2002]), thereby "creat[ing] an unreasonable risk of harm to others, or increas[ing] that risk" (Church v Callanan Indus., 99 NY2d 104, 111 [2002]). That exception does not apply when "the breach of contract consists 'merely in withholding a benefit . . . where inaction is at most a refusal to become an instrument for good' " (id. at 112; see Mesler v PODD LLC, 89 AD3d 1533, 1535 [4th Dept 2011]). Rather, "a claim that a contractor [created or] exacerbated an existing condition requires some showing that the contractor left the premises in a more dangerous condition than he or she found them" (Rudloff v Woodland Pond Condominium Assn., 109 AD3d 810, 811 [2d Dept 2013]; see Church, 99 NY2d at 112; Baker v Buckpitt, 99 AD3d 1097, 1100 [3d Dept 2012]; Yery Suh v Fleet Bank, N.A., 16 AD3d 276, 276 [1st Dept 2005]; see also Santos v Deanco Servs., Inc., 142 AD3d 137, 142 [2d Dept 2016]).
Here, plaintiff alleged in his fourth supplemental bill of particulars that Pro Scapes negligently "created, aggravated and worsened the icy condition" of the subject walkway by "[u]sing insufficient salt" for the weather conditions, which allowed the remaining ice and snow to melt and refreeze, thereby creating additional ice. Viewing the evidence in the light most favorable to plaintiff and affording him the benefit of every reasonable inference (see Matter of Eighth Jud. Dist. Asbestos Litig., 33 NY3d 488, 496 [2019]; Esposito v Wright, 28 AD3d 1142, 1143 [4th Dept 2006]), we conclude that Pro Scapes failed to meet its initial burden on its motion of establishing as a matter of law that it did not create or exacerbate the dangerous icy condition as alleged by plaintiff.
In support of its motion, Pro Scapes submitted excerpts of the deposition testimony of its president, who explained that salt and deicers function by lowering the freezing temperature of water and that additional moisture required additional deicing material in order to be effective. The president acknowledged that, although an appropriate amount of salt could initially be effective in melting the present ice and snow, if conditions added moisture to the area, the now-diluted salt could become ineffective and the water could then refreeze in place. While Pro Scapes' expert meteorologist opined that there was no thawing and refreezing cycle in the 24 hours prior to plaintiff's accident such that ice or snow on the sidewalk could have naturally melted and refrozen, the meteorologist failed to address whether snow and ice melted with deicer could have refrozen into ice on the sidewalk (see Battaglia v MDC Concourse Ctr., LLC, 175 AD3d 1026, 1029 [4th Dept 2019], affd 34 NY3d 1164 [2020]). Pro Scapes' submissions further showed that, after initially performing snow removal services throughout the morning, its workers had to return to the facility in the afternoon following Loretto's complaint that Pro Scapes had not done an adequate job. As the president emphasized during his deposition, Pro Scapes' form documenting the customer communication showed that Loretto reported that the sidewalk had not been properly cleared of snow, but Loretto did not refer to the presence of any ice. Pro Scapes returned in the afternoon between noon and 1:00 p.m. to shovel for approximately 40 minutes and then laid down two 50-pound bags of deicer over a period of 11 minutes, although the president was unable to pinpoint where exactly the deicer was spread. Plaintiff slipped on the wet and icy sidewalk ramp just before 5:00 p.m. later that day.
The evidence that Pro Scapes returned to address a complaint of remaining snow, but not the presence of ice, and then applied an amount of deicer, coupled with the president's testimony regarding the ineffectiveness of deicer when the amount thereof becomes diluted by additional moisture, which could lead to refreezing of the previously melted snow and ice, "raises a question of fact as to whether [Pro Scapes] negligently create[d] or exacerbate[d] a dangerous condition by using [inadequate] salt, [thereby] resulting in the formation of the ice on which plaintiff allegedly slipped" several hours later (Belmonte v Guilderland Assoc., LLC, 112 AD3d 1128, 1129 [3d Dept 2013] [internal quotation marks omitted]; see Yery Suh, 16 AD3d at 276). Thus, we conclude that the court should have denied that part of Pro Scapes' motion seeking [*3]summary judgment dismissing the amended complaint against it "regardless of the sufficiency of the opposing papers" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). We therefore modify the order accordingly.
In addition, we agree with Loretto that the court erred in granting that part of Pro Scapes' motion for summary judgment dismissing Loretto's cross claim insofar as that cross claim seeks common-law indemnification (see Chamberlain v Church of the Holy Family, 160 AD3d 1399, 1403-1404 [4th Dept 2018]; Trzaska v Allied Frozen Stor., Inc., 77 AD3d 1291, 1293 [4th Dept 2010]; cf. Grove v Cornell Univ., 151 AD3d 1813, 1816 [4th Dept 2017]), and that part of Pro Scapes' motion seeking summary judgment on its cross claim against Loretto for contractual indemnification (see Mesler, 89 AD3d at 1534). We therefore further modify the order accordingly. We have considered Loretto's remaining contentions and conclude that they are without merit.
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350260/ | Foote v March (2022 NY Slip Op 07334)
Foote v March
2022 NY Slip Op 07334
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., NEMOYER, CURRAN, BANNISTER, AND MONTOUR, JJ.
774 CA 21-01663
[*1]RYAN FOOTE, PLAINTIFF-APPELLANT,
vJAMES MARCH AND HUBER & HUBER, INC., DEFENDANTS-RESPONDENTS.
DUPEE & MONROE, P.C., GOSHEN (JON C. DUPEE, JR., OF COUNSEL), FOR PLAINTIFF-APPELLANT.
KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (JUSTIN L. HENDRICKS OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
Appeal from an order of the Supreme Court, Erie County (Daniel Furlong, J.), entered October 5, 2021. The order, inter alia, denied the motion of plaintiff for partial summary judgment.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries that he allegedly sustained when the vehicle he was operating was rear-ended by a vehicle driven by James March (defendant) and owned by defendant Huber & Huber, Inc. Plaintiff appeals from an order that, inter alia, denied plaintiff's motion for partial summary judgment on the issue of negligence and seeking dismissal of four of defendants' affirmative defenses.
We reject plaintiff's contention that Supreme Court erred in denying his motion with respect to the issue of defendants' negligence. It is well settled that a rear-end collision with a vehicle "establishes a prima facie case of negligence on the part of the driver of the rear vehicle . . . [, and, i]n order to rebut the presumption [of negligence], the driver of the rear vehicle must submit a non[]negligent explanation for the collision" (Niedzwiecki v Yeates, 175 AD3d 903, 904 [4th Dept 2019] [internal quotation marks omitted]). "One of several nonnegligent explanations for a rear-end collision is a sudden stop of the lead vehicle . . . , and such an explanation is sufficient to overcome the inference of negligence and preclude an award of summary judgment" (Tate v Brown, 125 AD3d 1397, 1398 [4th Dept 2015] [internal quotation marks omitted]; see Niedzwiecki, 175 AD3d at 904; Macri v Kotrys, 164 AD3d 1642, 1643 [4th Dept 2018]).
Here, plaintiff failed to meet his initial burden on his motion inasmuch as he submitted the deposition testimony of defendant, in which he " 'provided a nonnegligent explanation for the collision,' " i.e., that the collision occurred when plaintiff suddenly slowed down or stopped in front of his vehicle while plaintiff was attempting to change lanes (Gardner v Chester, 151 AD3d 1894, 1896 [4th Dept 2017]; see Shah v Nowakowski, 203 AD3d 1737, 1741 [4th Dept 2022]). Thus, plaintiff's own submissions raise "a triable issue of fact as to whether a nonnegligent explanation exists for the rear-end collision" (Bell v Brown, 152 AD3d 1114, 1115 [3d Dept 2017]; see Niedzwiecki, 175 AD3d at 904).
In light of our determination, we reject plaintiff's further contention that the court erred in denying that part of his motion seeking partial summary judgment dismissing four of defendants' affirmative defenses. Inasmuch as plaintiff failed to establish that he is entitled to partial summary judgment on the issue of negligence, he also failed to establish that he is entitled to partial summary judgment dismissing those four affirmative defenses, which are related to the issue of negligence.
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350259/ | Froebel v Froebel (2022 NY Slip Op 07364)
Froebel v Froebel
2022 NY Slip Op 07364
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: SMITH, J.P., PERADOTTO, CURRAN, WINSLOW, AND MONTOUR, JJ.
860 CA 21-01298
[*1]JENNIFER FROEBEL, PLAINTIFF-APPELLANT,
vWESLEY FROEBEL, DEFENDANT-RESPONDENT. (APPEAL NO. 1.)
BENNETT SCHECHTER ARCURI & WILL LLP, BUFFALO (KRISTIN L. ARCURI OF COUNSEL), FOR PLAINTIFF-APPELLANT.
JUSTIN S. WHITE, WILLIAMSVILLE, FOR DEFENDANT-RESPONDENT.
Appeal from an order of the Supreme Court, Erie County (E. Jeannette Ogden, J.), entered September 1, 2021. The order, among other things, modified residential custody of the subject child from plaintiff to defendant.
It is hereby ORDERED that said appeal from the order insofar as it concerns custody is unanimously dismissed and the order is affirmed without costs.
Memorandum: These consolidated appeals arise from a dispute between the parties, who were divorced by a judgment entered in 2006, concerning, among other things, the education of their child. In appeal No. 1, plaintiff mother appeals from an order entered after a hearing that, inter alia, modified a custodial access agreement that was incorporated but not merged in the judgment of divorce by granting defendant father residential custody of the child, suspended the father's child support obligation set forth in an oral stipulation that was also incorporated but not merged in the judgment of divorce, and made various determinations concerning the parties' obligations under the oral stipulation to contribute to the child's college expenses. In appeal No. 2, the mother appeals from an order directing her to pay child support to the father.
At the outset, although the mother contends that Supreme Court erred in awarding the father residential custody of the child, that issue has been rendered moot inasmuch as the child is now 18 years old. We therefore dismiss appeal No. 1 insofar as it concerns custody (see Matter of Bly v Hoffman, 114 AD3d 1275, 1275 [4th Dept 2014]; Matter of Dawn M.L. v Gary A.M., 31 AD3d 1222, 1222 [4th Dept 2006]). Contrary to the mother's further contention in appeal No. 1, the court did not err in suspending the father's child support obligation from April 9, 2021, the date of the father's amended order to show cause seeking, inter alia, to terminate his child support obligation, until September 1, 2021, the date on which the child left for college. The father established at the hearing that the child had been living exclusively with the father since February 2021. The child's change in residence constituted a substantial change in circumstances sufficient to warrant the suspension of the father's child support obligation (see Matter of Calderon v Almonte, 158 AD3d 681, 681 [2d Dept 2018]; Matter of Williams v Randall-Williams, 95 AD3d 1135, 1136 [2d Dept 2012]).
The mother's remaining contentions in appeal No. 1 concern the court's directives with respect to the payment of the child's college expenses. Pursuant to the parties' oral stipulation, the mother and father agreed to "contribute in proportion to their incomes" at the time that "a[n] appropriate school is selected[.]" Following the hearing, the court directed in its order that the child could attend the college of her choice; that the cost of attendance shall be paid from the father's New York 529 College Savings account and that further college costs for the child's attendance shall be borne solely by the father for the 2021-2022 academic school year, i.e., her freshman year; and that it would revisit the parties' contributions to the child's college expenses [*2]at a later date, at which time it would "determine the contribution percentages of both parties to future educational costs for the child to be made pursuant to the terms of the agreements of the parties." It is the mother's position that she never agreed that the child's preferred college was "appropriate" and, thus, she is not required under the terms of the oral stipulation to contribute to the child's college expenses. Therefore, the mother contends that the court erred by effectively rewriting the parties' oral stipulation.
We conclude that the mother's challenges to those parts of the order concerning the child's college expenses by which she is aggrieved are without merit. Pursuant to the plain meaning of the parties' oral stipulation (see Reukauf v Kraft, 203 AD3d 1652, 1653 [4th Dept 2022]), the parties agreed to contribute to the child's college expenses in proportion to their income. The parties, however, simply disagreed whether the child's preferred college was appropriate, and they litigated that issue. The court's order directing that the child could attend the college of her choice was tantamount to a determination that the college was appropriate within the meaning of the parties' oral stipulation, and we conclude that the determination has a sufficient basis in the record. Further, with respect to that part of the order providing that the court would revisit, at a later date, the issue of college contributions "pursuant to the terms of the agreements of the parties[,]" we conclude that, contrary to the mother's contention, the order is consistent with, and not contrary to, the oral stipulation.
Addressing appeal No. 2, we agree with the mother that the court erred in modifying the parties' child support obligation by ordering her to pay child support to the father without first conducting an evidentiary hearing (see Bishop v Bishop, 170 AD3d 642, 644 [2d Dept 2019]; Matter of Gross v Gross, 7 AD3d 711, 713 [2d Dept 2004]). Although the court held a hearing with respect to numerous items of relief sought by both parties, the record establishes that the parties did not actually litigate the issue of their respective incomes. Rather, the order in appeal No. 2 was decided based on financial documents that the parties submitted after the hearing, and we agree with the mother that there are issues of fact concerning the parties' finances that are evident based upon the father's submissions. We therefore reverse the order in appeal No. 2, vacate the award of child support, and remit the matter to Supreme Court for a hearing on that part of the father's amended order to show cause regarding the recalculation of the parties' child support obligations (see Jennings v Domagala, 167 AD3d 1585, 1586 [4th Dept 2018]; see generally Bishop, 170 AD3d at 644).
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350265/ | Chambers v Town of Shelby (2022 NY Slip Op 07314)
Chambers v Town of Shelby
2022 NY Slip Op 07314
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: LINDLEY, J.P., NEMOYER, CURRAN, WINSLOW, AND BANNISTER, JJ.
686 CA 21-01518
[*1]ERIC N. CHAMBERS, PLAINTIFF-APPELLANT,
vTOWN OF SHELBY AND TOWN OF SHELBY CODE ENFORCEMENT OFFICER, DEFENDANTS-RESPONDENTS.
LAW OFFICES OF JON LOUIS WILSON, LOCKPORT (JON LOUIS WILSON OF COUNSEL), FOR PLAINTIFF-APPELLANT.
BOND, SCHOENECK & KING, PLLC, ROCHESTER (JEREMY M. SHER OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
Appeal from an order and judgment (one paper) of the Supreme Court, Orleans County (Frank Caruso, J.), entered September 22, 2021. The order and judgment granted the motion of defendants for summary judgment and dismissed the complaint.
It is hereby ORDERED that the order and judgment so appealed from is unanimously affirmed without costs.
Memorandum: In this action to recover damages for malicious prosecution and abuse of process, plaintiff appeals from an order and judgment granting defendants' motion for summary judgment dismissing the complaint. This action arises from the filing of three informations pursuant to Executive Law § 382 (2) by defendants, charging plaintiff with violations of, inter alia, the Uniform Fire Prevention and Building Code on three properties. A violation of section 382 (2) is a misdemeanor offense (see Matter of Ophardt v Vasquez, 74 AD3d 1742, 1744 [4th Dept 2010], appeal dismissed 15 NY3d 867 [2010]) subject to a fine, a term of imprisonment, or both (see
§ 382 [2]). Plaintiff commenced this action after the charges were withdrawn.
Plaintiff contends that summary judgment was premature because further discovery was needed. We reject that contention. Plaintiff failed "to demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant[s]" (Buto v Town of Smithtown, 121 AD3d 829, 830 [2d Dept 2014] [internal quotation marks omitted]; see CPLR 3212 [f]; Gannon v Sadeghian, 151 AD3d 1586, 1588 [4th Dept 2017]), and we agree with defendants that "the [m]ere hope that somehow . . . plaintiff[] will uncover evidence that will prove a case is insufficient for denial of the motion" (Gannon, 151 AD3d at 1588 [internal quotation marks omitted]).
We also reject plaintiff's contention that Supreme Court erred on the merits in granting defendants' motion. It is well settled that, in order "[t]o obtain recovery for malicious prosecution, a plaintiff must establish that a criminal proceeding was commenced, that it was terminated in favor of the accused, that it lacked probable cause, and that the proceeding was brought out of actual malice" (Martinez v City of Schenectady, 97 NY2d 78, 84 [2001]; see Broughton v State of New York, 37 NY2d 451, 457 [1975], cert denied 423 US 929 [1975]; Bratge v Simons, 173 AD3d 1623, 1624 [4th Dept 2019]). Thus, "[p]robable cause to believe that a person committed a crime is a complete defense to claims of . . . malicious prosecution" (Bratge, 173 AD3d at 1624 [internal quotation marks omitted]; see Britt v Monachino, 73 AD3d 1462, 1462 [4th Dept 2010]). "In the context of a malicious prosecution cause of action, probable cause consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe plaintiff guilty" (Dann v Auburn Police Dept., 138 AD3d [*2]1468, 1470 [4th Dept 2016] [internal quotation marks omitted]; see Colon v City of New York, 60 NY2d 78, 82 [1983], rearg denied 61 NY2d 670 [1983]; Broyles v Town of Evans, 147 AD3d 1496, 1496-1497 [4th Dept 2017]).
Here, plaintiff does not dispute that there were violations of, inter alia, the Uniform Fire Prevention and Building Code on the properties. Instead, plaintiff contends that defendants had failed to engage in the steps necessary to determine that he was the owner of the properties within the meaning of the New York State Uniform Fire Prevention and Building Code Act (Executive Law § 370 et seq.; see
§ 382 [2]), and therefore defendants lacked probable cause to believe that plaintiff violated Executive Law § 382 (2). Contrary to plaintiff's contention, defendants met their initial burden by establishing that plaintiff was the "owner" of the properties. The term "owner" is not defined in the Uniform Fire Prevention and Building Code Act (see § 372). "Where the interpretation of [a] statute turns on the definition of words not defined therein, we construe words of ordinary import with their usual and commonly understood meaning, and in that connection have regarded dictionary definitions as useful guideposts in determining the meaning of a word or phrase" (Matter of Level 3 Communications, LLC v Chautauqua County, 148 AD3d 1702, 1704 [4th Dept 2017], lv denied 30 NY3d 913 [2018] [internal quotation marks omitted]; see Yaniveth R. v LTD Realty Co., 27 NY3d 186, 192 [2016]). The term "owner" means "[s]omeone who has the right to possess, use, and convey something; a person in whom one or more interests are vested" (Black's Law Dictionary [11th ed 2019], owner). Here, we conclude that defendants established probable cause to believe that plaintiff was the "owner" of the properties inasmuch as it is undisputed that plaintiff operated his business on one of the properties, identified the properties as his in correspondence with defendants, had control over whether to permit inspections of the premises, identified himself as the owner of two of the properties in prior applications for a junkyard license from defendants, and leased the other property to a tenant. Consequently, the court properly concluded that defendants met their burden of establishing probable cause to believe that plaintiff, as the owner of the properties, committed a crime by violating Executive Law § 382 (2) (see generally Bratge, 173 AD3d at 1624). We further conclude that plaintiff failed to raise an issue of fact in opposition with respect thereto (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
We similarly conclude that defendants established their entitlement to judgment as a matter of law with respect to the abuse of process claim. "Abuse of process has three essential elements: (1) regularly issued process, either civil or criminal, (2) an intent to do harm without excuse or justification, and (3) use of the process in a perverted manner to obtain a collateral objective" (Curiano v Suozzi, 63 NY2d 113, 116 [1984]; see Liss v Forte, 96 AD3d 1592, 1593 [4th Dept 2012]). Here, defendants met their initial burden on the motion with respect to that claim by establishing that they "did not use process in a perverted manner to obtain a collateral objective" (Liss, 96 AD3d at 1593 [internal quotation marks omitted]). Plaintiff in response failed to raise an issue of fact to defeat that part of the motion. Although plaintiff alleged that defendants filed an excessive number of misdemeanor charges against him in an effort to deplete his resources, "the gist of [an] action for abuse of process
. . . is the improper use of process after it is issued" (Curiano, 63 NY2d at 117 [internal quotation marks omitted and emphasis added]). Here, plaintiff does "not contend that the [informations] issued by defendants w[ere] improperly used after [they] w[ere] issued but only that defendants acted maliciously in [filing the informations]. A malicious motive alone, however, does not give rise to a cause of action for abuse of process" (id.; see Liss, 96 AD3d at 1593).
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350264/ | Cicero v O'Rourke (2022 NY Slip Op 07316)
Cicero v O'Rourke
2022 NY Slip Op 07316
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: LINDLEY, J.P., NEMOYER, CURRAN, WINSLOW, AND BANNISTER, JJ.
688 CA 22-00399
[*1]LAURA CICERO, PLAINTIFF-APPELLANT,
vPATRICIA O'ROURKE AND VERONA STREET ANIMAL SOCIETY, DEFENDANTS-RESPONDENTS.
WILLIAM MATTAR, P.C., ROCHESTER (MATTHEW J. KAISER OF COUNSEL), FOR PLAINTIFF-APPELLANT.
KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (JUSTIN L. HENDRICKS OF COUNSEL), FOR DEFENDANT-RESPONDENT PATRICIA O'ROURKE.
MOLOD SPITZ & DESANTIS, NEW YORK CITY (DAVID B. OWENS OF COUNSEL), FOR DEFENDANT-RESPONDENT VERONA STREET ANIMAL SOCIETY.
Appeal from an order of the Supreme Court, Monroe County (Elena F. Cariola, J.), entered March 2, 2022. The order denied the motion of plaintiff for leave to amend the complaint.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking damages for injuries that she sustained after she was bitten by a dog owned by defendant Verona Street Animal Society (Verona Street). The incident took place at the residence of defendant Patricia O'Rourke, who was providing a foster home for the dog until Verona Street could find someone to adopt him. The complaint asserts strict liability causes of action against both defendants, alleging that they knew or should have known about the dog's vicious propensities (see generally Bard v Jahnke, 6 NY3d 592, 596-597 [2006]; Collier v Zambito, 1 NY3d 444, 446-447 [2004]).
While this case was pending, the Court of Appeals decided Hewitt v Palmer Veterinary Clinic, P.C. (35 NY3d 541 [2020]), in which a woman was injured by a dog while she was in the waiting room of the defendant veterinary clinic. The Court held that the "vicious propensities notice requirement" (id. at 549), typically applicable in an action to recover for injury caused by a domestic animal, did not apply to the veterinary clinic inasmuch as that clinic's agents had "specialized knowledge relating to animal behavior and the treatment of animals who may be ill, injured, in pain, or otherwise distressed" (id. at 548). Instead, the Court applied negligence principles, explaining that veterinarians or other agents of such a practice "may—either unavoidably in the course of treatment, or otherwise—create circumstances that give rise to a substantial risk of aggressive behavior" (id.). Due to their specialized knowledge, the Court concluded, "veterinary clinics are uniquely well-equipped to anticipate and guard against the risk of aggressive animal behavior that may occur in their practices—an environment over which they have substantial control, and which potentially may be designed to mitigate this risk" (id. at 549).
Relying on Hewitt, plaintiff moved for leave to amend her complaint to assert a negligence cause of action against O'Rourke, contending that the vicious propensities notice requirement is inapplicable because O'Rourke did not own the offending dog. In the alternative, plaintiff contended that the Hewitt exception to the vicious propensities notice requirement applied because O'Rourke had specialized knowledge of dogs and substantial control over her home, where the incident took place. Supreme Court denied the motion, and we now affirm.
" 'Although leave to amend a pleading should be freely granted absent prejudice or surprise . . . , leave to amend should be denied where . . . the proposed amendment is patently lacking in merit' " (Brown v Erie Ins. Co., 207 AD3d 1144, 1146 [4th Dept 2022]; see CPLR 3025 [b]; Dionisio v Geo. De Rue Contrs., Inc., 38 AD3d 1172, 1174 [4th Dept 2007]). Here, we conclude that the court did not abuse its discretion in denying plaintiff's motion for leave to amend the complaint inasmuch as the proposed negligence cause of action against O'Rourke patently lacks merit under existing caselaw (see generally Brown, 207 AD3d at 1146).
In Bard, the Court of Appeals held that "when harm is caused by a domestic animal, its owner's liability is determined solely by application of the rule articulated in Collier" (6 NY3d at 599 [emphasis added])—"i.e., the rule of strict liability for harm caused by a domestic animal whose owner knows or should have known of the animal's vicious propensities" (Petrone v Fernandez, 12 NY3d 546, 550 [2009]; see Collier, 1 NY3d at 446—447). Although O'Rourke does not own the dog that bit plaintiff, "[a]n owner's strict liability for damages arising from the vicious propensities and vicious acts of a dog 'extends to a person who harbors the animal although not its owner' " (Matthew H. v County of Nassau, 131 AD3d 135, 144 [2d Dept 2015], quoting Molloy v Starin, 191 NY 21, 28 [1908]; see Vikki-Lynn A. v Zewin, 198 AD3d 1342, 1342 [4th Dept 2021]; Cruz v Stachowski, 142 AD3d 1326, 1328 [4th Dept 2016]). The Bard rule also extends to dog sitters (see Russell v Hunt, 158 AD3d 1184, 1185 [4th Dept 2018]).
Even assuming, arguendo, that the Bard rule did not preclude plaintiff from asserting a negligence cause of action against O'Rourke, we note that plaintiff would still have to establish in support of her negligence cause of action that O'Rourke had knowledge of the dog's alleged "vicious propensities" (Strunk v Zoltanski, 62 NY2d 572, 578 [1984]). As the Court of Appeals stated in Hewitt, "[t]he vicious propensity notice rule has been applied to animal owners who are held to a strict liability standard, as well as to certain non-pet owners—such as landlords who rent to pet owners—under a negligence standard" (35 NY3d at 548, citing Strunk, 62 NY2d at 578).
Here, plaintiff's proposed negligence cause of action against O'Rourke does not allege that O'Rourke had knowledge of the dog's vicious propensities; instead, it alleges that O'Rourke was negligent because she did not "investigate the subject dog accepted from the foster care program . . . before introducing it to her property, thereby creating a dangerous condition on the property which she had a nondelegable duty to keep reasonably safe." The proposed complaint therefore fails to state a viable negligence cause of action against O'Rourke.
Finally, we reject plaintiff's alternative contention that the exception set forth in Hewitt should apply here due to O'Rourke's alleged specialized knowledge of dogs. In our view, a volunteer dog sitter such as O'Rourke does not have the knowledge and expertise of a veterinarian, and O'Rourke's home is not analogous to a veterinary clinic (see generally Hewitt, 35 NY3d at 548-549).
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350262/ | Deutsche Bank Natl. Trust Co. v Pulver (2022 NY Slip Op 07376)
Deutsche Bank Natl. Trust Co. v Pulver
2022 NY Slip Op 07376
Decided on December 23, 2022
Appellate Division, Fourth Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 23, 2022
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, WINSLOW, AND BANNISTER, JJ.
885 CA 21-01243
[*1]DEUTSCHE BANK NATIONAL TRUST COMPANY, AS TRUSTEE FOR NOVASTAR MORTGAGE FUNDING TRUST, SERIES 2007-1, PLAINTIFF-APPELLANT,
vJEFFREY PULVER, ALSO KNOWN AS JEFFREY W. PULVER, WENDY A. PULVER, DEFENDANTS-RESPONDENTS, ET AL., DEFENDANTS.
ROBERTSON ANSCHUTZ SCHNEID CRANE & PARTNERS, PLLC, WESTBURY (JOSEPH F. BATTISTA OF COUNSEL), FOR PLAINTIFF-APPELLANT.
LEGAL ASSISTANCE OF WESTERN NEW YORK, INC., GENEVA (JAMIE ROBBINS OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
Appeal from an order of the Supreme Court, Ontario County (Craig J. Doran, J.), entered June 9, 2021. The order granted the motion of defendants Jeffrey Pulver, also known as Jeffrey W. Pulver, and Wendy A. Pulver to dismiss the complaint pursuant to CPLR 3216.
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In 2007, Jeffrey Pulver, also known as Jeffrey W. Pulver, and Wendy A. Pulver (defendants) executed a note secured by a mortgage on their primary residence. They ceased making payments on the note in the following year, and in 2010 plaintiff commenced this mortgage foreclosure action. Defendants filed a timely answer. In 2014, plaintiff filed a consent to change attorney form, indicating that its attorney of record would be Clarfield, Okon, Salomone & Pincus, P.L. (COSP). No further action was taken by the parties until September 2019, when defendants filed a "Demand for Resumption of Prosecution of Action and Note of Issue" pursuant to CPLR 3216 (demand). Defendants' attorney states that she sent copies of the demand via certified mail to COSP at the address listed on the consent to change attorney form; to COSP at an address listed on an item of mail that COSP had sent to defendants; and to a law firm that she believed may have merged with COSP. The mail that defendants' attorney sent to COSP at the first address was returned, but the other two items were delivered. It is undisputed that at the time the demand was filed COSP had dissolved. It is also undisputed that, although a different law firm had received the file in 2016, the new attorney did not file a notice of appearance and neither law firm filed any paperwork that would have alerted defendants to a change in plaintiff's attorney of record.
Two months after the demand was filed, plaintiff, through the new attorney, filed a notice of pendency on the mortgaged property, and subsequently plaintiff filed a request for judicial intervention. Defendants moved to dismiss the complaint pursuant to CPLR 3216, for failure to prosecute. Supreme Court granted the motion. Plaintiff appeals and we now affirm.
Plaintiff contends that the court erred in granting the motion because defendants knew that COSP was no longer in existence and had a duty to investigate and to serve a notice on plaintiff to appoint another attorney (see CPLR 321 [c]). Defendants respond that CPLR 321 (b) (Change or withdrawal of attorney) governs, instead of CPLR 321 (c), because COSP withdrew. We conclude that plaintiff's contention is unpreserved for our review (see Telmark, Inc. v Mills, 199 AD2d 579, 580 [3d Dept 1993]). In any event, we reject the contention on the merits. Even [*2]assuming, arguendo, that CPLR 321 (c) applies where, as here, the attorney has voluntarily withdrawn as counsel (cf. Blondell v Malone, 91 AD2d 1201, 1201-1202 [4th Dept 1983]; Hendry v Hilton, 283 App Div 168, 171 [2d Dept 1953]; see generally Matter of Cassini, 182 AD3d 13, 46 [2d Dept 2020]), we conclude that the statute does not apply under the circumstances of this case inasmuch as plaintiff "retain[ed] new counsel at its own initiative" approximately three years before the demand was filed (Wells Fargo Bank, N.A. v Kurian, 197 AD3d 173, 177 [2d Dept 2021]).
Plaintiff further contends that defendants violated the stay provisions of 22 NYCRR 202.12-a (c) (7) when they filed their motion to dismiss after plaintiff filed the request for judicial intervention (see also CPLR 3408 [n]) and that defendants failed to establish that the demand was ever actually served because there is no affidavit of service or evidence concerning the contents of the envelopes that were sent by certified mail. Those contentions are not properly before us inasmuch as they are being raised for the first time on appeal (see U.S. Bank N.A. v Seepersaud, 207 AD3d 499, 501 [2d Dept 2022]; Brandywine Pavers, LLC v Bombard, 108 AD3d 1209, 1210 [4th Dept 2013]).
In any event, plaintiff's contention lacks merit. Contrary to plaintiff's contention, an affidavit of service was not required because defendants' attorney provided sworn statements that she personally performed the statutory requirements for service. CPLR 3216 requires only that the written demand be "served . . . by registered or certified mail" (CPLR 3216 [b] [3]). We conclude that defendants met their burden of establishing strict compliance with CPLR 3216 (see generally Frank L. Ciminelli Constr. Co. v City of Buffalo, 110 AD2d 1075, 1076 [4th Dept 1985], appeal dismissed 65 NY2d 1053 [1985]).
Plaintiff contends that it established a justifiable excuse for its failure to respond to defendants' CPLR 3216 demand, in that defendants did not serve the demand on plaintiff's new attorney. We reject that contention. It is well settled that an adverse party is entitled to treat a party's attorney of record as an authorized agent until the formalities of CPLR 321 (b) have been satisfied (see Blondell, 91 AD2d at 1202; Hendry, 283 App Div at 171-172). In the absence of the filing of a consent signed by the retiring attorney and party or an order of the court, "service of papers upon the attorney [of record] is service upon the party and, as to adverse parties, the authority of the attorney of record continues unabated" (Hess v Tyszko, 46 AD2d 980, 980 [3d Dept 1974]). Where, as here, the demand "was properly mailed to and received by [the] attorney of record," there is no justifiable excuse for a plaintiff's delay in responding to the demand (Pavilion Park Slope Cinemas 9, LLC v Pro Century Corp., 186 AD3d 1389, 1390 [2d Dept 2020]; see Kushmakova v Meadow Park Rehabilitation & Health Care Ctr., LLC, 56 AD3d 434, 436 [2d Dept 2008]).
Although plaintiff correctly contends that courts "retain[] some discretion to deny a motion to dismiss, even when [a] plaintiff fails to comply with [a demand under CPLR 3216] and proffers an inadequate excuse for the delay" (Baczkowski v Collins Constr. Co., 89 NY2d 499, 504 [1997]), "this discretion should be exercised sparingly to honor the balance struck by the generous statutory protections already built into CPLR 3216" (id.). Here, given plaintiff's "persistent neglect" and its failure to notify defendants of a change in counsel for over three years after the new attorney received the file, we conclude that the court properly exercised its discretion in granting defendants' motion (id. at 503).
Entered: December 23, 2022
Ann Dillon Flynn
Clerk of the Court | 01-04-2023 | 12-23-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/9350332/ | NO. 12-22-00279-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
IN RE: §
MCBRIDE OPERATING, LLC, § ORIGINAL PROCEEDING
RELATOR §
MEMORANDUM OPINION
PER CURIAM
McBride Operating, LLC filed this original proceeding to challenge Respondent’s denial
of its Rule 91a motion to dismiss. 1 On December 7, 2022, this Court conditionally granted the
petition and directed Respondent to vacate his August 18, 2022 order denying the motion to
dismiss, and in its stead, to issue an order granting the motion to dismiss, dissolving the
temporary injunction, and dismissing the case. By an order filed with this Court on December
15, Respondent complied with this Court’s opinion and order, rendering this proceeding moot.
Accordingly, we dismiss the petition for writ of mandamus as moot.
Opinion delivered December 22, 2022.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
Respondent is the Honorable James A. Payne, Jr., Judge of the 273rd District Court in Shelby County,
1
Texas. The Real Parties in Interest are Terry Allen, Jan Allen, and Cypress Creek Farms, LLC.
COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT OF TEXAS
JUDGMENT
DECEMBER 22, 2022
NO. 12-22-00279-CV
MCBRIDE OPERATING, LLC,
Relator
V.
HON. JAMES A. PAYNE, JR.,
Respondent
ORIGINAL PROCEEDING
ON THIS DAY came to be heard the petition for writ of mandamus filed by
McBride Operating, LLC; who is the relator in appellate cause number 12-22-00279-CV and the
defendant in trial court cause number 21CV35791, pending on the docket of the 273rd Judicial
District Court of Shelby County, Texas. Said petition for writ of mandamus having been filed
herein on October 19, 2022, and the same having been duly considered, because it is the opinion
of this Court that the writ should not issue, it is therefore CONSIDERED, ADJUDGED and
ORDERED that the said petition for writ of mandamus be, and the same is, hereby dismissed as
moot.
By per curiam opinion.
Panel consisted of Worthen, C.J., Hoyle, J. and Neeley, J. | 01-04-2023 | 12-26-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487242/ | Grubb, J:
In regard to whether there is sufficient evidence of the corpus delicti to go before the jury; viz., that Noa i Benson is dead and that his death was criminally caused, prior to the date laid in this indictment, or on or about the 26th of November, 1891,—the Court are unanimously of the opinion that we should leave that to the jury to decide, upon all the evidence before! them.
As to the question of venue, the State is bound to show to the *567jury either by direct testimony or by testimony from which the jury may infer it beyond a reasonable doubt, that the crime was committed in this County. At this stage of the case you ask the Court to say from the circumstances already before the jury, that there is not sufficient evidence of the venue to allow this case to go to the jury. A majority of the Court think that this should be decided by the jury and not by the Court, and therefore decline to take the question of venue from the jury. It is for them to say whether the circumstances in this case are sufficient to show that the crime was committed, in New Castle County.
John J. ■Ntcholson, Attorney General, and Branch Ii. Giles, Deputy Attorney General, for the State.
Jeter L. Cooper, Jr., for the prisoner. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487243/ | Houston, J:
concurred in the decision.
Cullen, J:
I think venue is a material allegation and must be proved. The jury have nothing to do with it. As to the corpus delicti, I think it ought to go to the jury, because there is testimony here upon which the jury may act.
Grubb, J.,
charging the jury:
Gentlemen op the Jury : In this indictment Daniel Miller, alias Daniel Redden, George Henry Hutt, Julia Hutt and James Johnson, the prisoners at the bar, stand charged with murder of the first degree for the felonious killing with express malice aforethought of Noah Benson in the month of November, 1891, at Red Lion Hundred within this County. The first and second counts in this indictment charged that an assault upon Noah Benson was feloniously made by all four of the said prisoners but that the death of the said Benson was caused by mortal wounds inflicted by the said Miller, by the means and in the manner described therein, whilst the other three said prisoners were aiding and abetting the said Miller, as his accomplices, in committing the *568said felonious assault. The last count in the indictment charges, however, that an assault upon Benson was feloniously made by all of the said prisoners and that the death of Benson was caused by mortal wounds inflicted by all four of them in some unknown manner and by some unknown means, instruments and weapons.
But although said first and second counts allege that Miller inflicted the fatal wounds and that the other three prisoners were his accomplices in the alleged homicide, yet if the jury is satisfied that any one of them inflicted said wounds, it is sufficient for the conviction of all the parties who were aiding, and assisting in the assault upon Benson, the one who actually inflicted them ; because, in contemplation of law, it became the act of each and all of those who were engaged and participating in the perpetration of the crime then committed.
Under any indictment for murder of the first degree, the jury may find the accused guilty of either murder of the first or second degree, or of manslaughter, according as the law and the evidence may warrant, but unless they shall find the accused guilty of one oí these three grades of homicide, they must acquit him and render a general verdict of not guilty. It therefore becomes necessary for the jury, in the present instance, to be sufficiently informed by the Court as to the definition and nature of murder and the distinction between the two degrees thereof, as well as to the differences between these and the inferior grades of homicide.
Homicide is the killing of any human creature and is of three kinds ; justifiable, excusable and felonious. The taking of human life is held to be justifiable when done in the execution of public justice, as where the proper public officer duly executes a criminal under lawful sentence of death. It is also justifiable when done in the advancement of public justice, or for the prevention of any atrocious crime attempted to be committed with force, of which examples need not here be given. Excusable homicide is that which is committed either by misadventure or in self-defence. Homicide by misadventure is the accidental killing of another where the *569slayer is doing a lawful act unaccompanied by any criminally careless or reckless conduct. Homicide in self-defence is where one is assaulted upon sudden affray, and, in defence of his person, where •certain and immediate suffering would be the consequence of waiting for the assistance of the law, and there is no other probable means of escape, he kills his assailant.
In the case now before you, the marks of mortal violence upon the alleged corpse of Benson, if you believe the witnesses thereto, show an unlawful killing, and there is no evidence showing any ground for the plea of self-defence,—much less of justification. Therefore you cannot lawfully find that this is a case of either justifiable or excusable homicide.
Is it, then, a case of felonious homicide?
Felonious homicide at common law is of two kinds : namely, •manslaughter and murder j the difference between which consists principally in this, that in murder there is the ingredient of malice, whilst in manslaughter there is none; for manslaughter, when voluntary, arises from the sudden heat of the passions, but murder from the wickedness and malignity of the heart. Therefore manslaughter is defined to be the unlawful killing of -another without malice either express or implied, and without premeditation. Manslaughter- is either voluntary or involuntary voluntary manslaughter is where one kills another in the heat of blood, and this usually arises from fighting or from provocation. Involuntary manslaughter is where one, in doing an unlawful act, not felonious nor tending to great bodily harm, or in doing a lawful act without proper caution or requisite skill, undesignedly kills another. You will see at once that this is not a case of voluntary manslaughter, because there is no evidence whatsoever of any provocation or heat of blood at the time of the killing of the deceased. Nor is it one of involuntary manslaughter, because the evidence of mortal violence upon the alleged corpse of Benson, if you believe it, discloses that the slayer was doing an unlawful act tending not only to great bodily harm to the deceased, but to produce his death.
*570If, therefore, you cannot lawfully render a verdict of manslaughter, it will be necessary for you to determine whether the killing of Benson—in case you shall find that he is actually dead— is murder..
Murder, which is one of the two kinds of felonious homicide —manslaughter being the other—is where a person of sound memory and discretion, unlawfully kills any reasonable creature in being, under the peace of the State, with malice aforethought either express or implied. The chief characteristic of this crime, distinguishing it from manslaughter and every other kind of homicide, and therefore indispensibly necessary to be proved, is malice prepense or aforethought. This term, malice, is not restricted to spite or malevolence towards the deceased in particular, but in its legal sense, it is understood to 'mean that general malignity and recklessness of the lives and personal safety of others which proceed from a heart void of a just sense of social duty and fatally bent on mischief. - Malice is implied by -law from every deliberate cruel act committed by one person against another, no matter how sudden such act may be. For the law considers that he who does a cruel act voluntarily, does it maliciously. And whenever the act, from which the death ensues, is committed deliberately, the law presumes that it was done in malice; and it is incumbent upon the prisoner to show from evidence, or by inference from the circumstances of the case, that the offence is of a mitigated character and does not amount to murder.
Under the Statute Laws of this State there are two degrees of ,murder; namely, murder of the first and murder of the second' degree. The first is where the crime of murder is committed with express malice aforethought, or in perpetrating or attempting to perpetrate any crime punishable with death, and the second degree is where the crime of murder is committed otherwise, and with malice aforethought implied by law. Express malice is proved by evidence of a deliberately formed design to kill another; and such design may be shown from the circumstances attending the act, such *571as the deliberate selection and use of a deadly weapon knowing it to be such ; a preconcerted hostile meeting mutually agreed on or notified' and threatened by the prisoner; privily lying in wait.; a previous quarrel or grudge; antecedent menaces; the preparation of poison or other means of doing great bodily harm to the deceased f or any other circumstances evidencing such deliberately formed design to kill another. Implied or constructive malice is an inference or conclusion of law from the facts found by the jury; and among these, the actual intention of the prisoner becomes an important and material fact, for though he may not have intended to take away life, or to do any personal harm, yet he may have been engaged in the perpetration of some other felonious or unlawful act from which the law raises the presumption of malice. It is the difference between express and implied or constructive malice aforethought which distiugnishes murder of the first from murder of the second degree, except, however, that under our statute, murder of the first degree may be committed when the malicious killing is done in perpetrating or ^attempting to perpetrate any crime punishable with death—as rape or arson is in this State—although from such a felonious act malice is merely implied or presumed by law. Therefore murder of the second degree is held to be proved where it is not satisfactorily shown by the evidence submitted to the jury that the killing was done with a deliberately formed design to take life, or in perpetrating "or attempting to perpetrate any crime punishable with death, but is so shown that it was done suddenly, without justification or excuse, and without any provocation, or without provocation sufficient to reduce the homicide to the grade of manslaughter; or was done in perpetrating or attempting to perpetrate a felony (not capitally punishable) or. any unlawful act of violence-from which the law raises the presumption of malice.
Having thus instructed you as to murder of the first and second degree and the lesser grades of homicide, for your proper guidance in determining the guilt or innocence of the prisoners-whom you have in charge, it is also proper to remind you that, as-*572the law presumes every accused person to be innocent until he is proven guilty, the burden is upon the prosecution to prove beyond a reasonable doubt, by competent evidence, every essential ingredient of the crime charged in this indictment, before the prisoners can be found guilty thereof. But on the other hand, every sane man is presumed to intend that which is the ordinary and natural consequences of his own wilful act. Therefore, on the charge of murder where the fact of killing as charged in the indictment is shown by the prosecution, unaccompanied by circumstances of justification, ■excuse or mitigation, the law presumes that the homicide was committed with malice, and hence amounts to murder, until the contrary is shown, and consequently the burden is thereupon thrown upon the accused of disproving the malice and showing evidence to the satisfaction of the jury that the killing was not malicious, but was either justifiable or excusable homicide, or else manslaughter.
But, for the reasons already stated, you cannot in this instance lawfully find that the killing of Benson—if you find that he has been killed—is either justifiable or excusable homicide, or manslaughter. So that if, after a careful review of all the testimony before you, you shall be satisfied that the slayer of Benson—if he has been slain—is guilty of a higher grade of homicide than manslaughter, it will then be your duty to determine from the evidence, whether the prisoners, or any of them, are guilty in manner and form as they stand indicted—that is, of murder of the first degree, —or are guilty only of murder of the second degree.
In considering the evidence with a view to determining this question, you must be guided by the legal definition and nature of these two degrees of murder, and bear in mind the distinction between malice aforethought express and malice aforethought implied, as. these have just been defined to you. And here it is necessary also to inform you that, although where the fact of killing as charged in the indictment is shown by the prosecution, unaccompanied by circumstances of justification, excuse, or extenuation, the law presumes that the homicide was committed with malice until the con*573trary appears from the evidence produced at the trial, yet it goes no further than to imply malice, and therefore the legal presumption goes no further in such a case than that the killing is murder of the second degree under our statute. Wherefore, before a verdict by the jury of murder of the first degree can be lawfully rendered, it must be shown by the prosecution that the prisoners, or some of them killed or participated in the killing of Benson—if he be dead—with a sedate, deliberate purpose and formed design to take life. Such deliberate purpose and formed design may exist only for a moment, but it must be shown by the facts and circumstances attending the homicide to actually exist in order to prove that express malice aforethought without the evidence of which a conviction of murder of the first degree cannot be secured.
But before the prisoners can be found guilty of murder of either degree, under this indictment, it is imperatively incumbent on the prosecution to prove to you, beyond a reasonable doubt, first, that Noah Benson died on or about November 26, 1891, or within a year thereafter and before the finding of this indictment; second, that his death was caused by the means and in the manner described in this indictment and within this County; and third, that the prisoners at the bar or one or more of them committed, or aided and participated in the commission of the fatal act as alleged therein. In the absence of direct or positive evidence, each of these essential ingredients of the crime may be established by circumstantial evidence alone. In cases of homicide it is essential that the corpus delicti must be proved. That is, it must be shown both that the deceased is dead and that his death was criminally caused. Unless the corpus delicti in both these respects is otherwise proved, a confession is not by itself enough to sustain a conviction: nor is evidence of other statements or conduct of the accused exhibiting satisfactory indications of guilt. The sudden disappearance of a man, without apparent cause, and the failure to find him or any trace of him after diligent search, although they may have a strong suspicion that he has come to an untimely end, yet they are not *574.alone sufficient proof of his death, because it may be accounted for on the hypothesis that he may have absconded, or be kidnapped and concealed, and be still alive. But if his dead body be found, it is a fact in its nature conclusive. It is the general rule that a jury ought not to convict in a case of homicide unless the dead body be seen and identified. The most positive and satisfactory evidence of the fact of death is the testimony of those who were present when it happened; or who having been personally acquainted with the deceased in his life-time, have seen and recognized his body after life was extinct. But though it is necessary that the body of the deceased be satisfactorily identified, it is not necessary that this be proved by direct and positive evidence, if the circumstances be such as to leave no reasonable doubt of the fact. Where only the mutilated or decomposed remains have been found, it ought to be clearly and satisfactorily shown that they are the remains of a human being, and of one answering to the sex, age; color, size, fig-r ure or other description of the alleged deceased. Identification may also be aided by circumstances,—as by dress, articles found upon the remains, peculiar physical marks or scars, wounds, etc., similar to those known to have been upon the alleged victim of the homicide. In regard to the alleged death of Noah Benson you have the testimony of Mrs. Beck and her son, who lived on the farm two miles from Delaware City, where Benson was employed, and who say that he was there alive between 5 and 6 o’clock on Monday afternoon, November 26th, last; and also the testimony of witnesses who saw him alive the same evening on Clinton street in Delaware City in this County. You have also the testimony of other witnesses who say that they afterwards saw, on the morning of December 26 th last, in Delaware City, a headless corpse of a colored man, which they, with other witnesses, identify and recognize, for the reasons stated by them, as the dead body of Noah Benson. It is for the jury to determine, from all the evidence before you, whether or not the death of Benson has been established beyond a reasonable doubt. If you find that it has been *575so established, then it will be necessary for you, in the next place, to ascertain whether or not it has been satisfactorily proved that Benson’s death was caused by the means and in the manner described in his indictment. It is alleged in the indictment that his death was caused by mortal wounds inflicted by striking, stabbing, cutting, etc., upon his right breast, and also by mortal wounds inflicted in some unknown manner and by some unknown means. One of the physicians who made a post-mortem examination of the alleged corpse of Benson testified that one of the wounds in the breast severed the axillary artery and was sufficient, in his judgment, to cause his death: and that such a wound might have been cut with a knife similar to the one produced in evidence. Both of the post-mortem physicians declared that there was no water in either the lungs or stomach of the said corpse, and that, in their judgment, life was extinct before it was submerged in the water and therefore it was not the body of a drowned person. Dr. For-mad also positively concurred in this opinion. It was also testified that the head had been severed from the body, that the back was broken asunder and that a leg and knee were fractured.
It is for the jury to determine, from all the evidence in the case, whether Noah Benson came to his death—if you believe said body to be Benson’s—by suicide, by accident, or by the unlawful act of another person or persons. If you shall be satisfied from the evidence before you, that his death was criminally caused as alleged in the indictment, and by the said wound upon the breast, or by any of the other injuries found upon said body, then, the corpus delicti having been established, it will be your further duty to determine whether or not the prisoners, or one or more of them, are the persons who criminally caused the death of Benson as alleged in the indictment, and within this County. This is the question of paramount interest which you must determine by the evidence and answer by your verdict.
The prosecution contends that the prisoners are the persons who, as principals or accomplices, caused the death of Benson. *576This the prisoners deny, and endeavor, respectively, to prove an alibi and other circumstances to disprove the testimony and contention of the State. So far as the testimony discloses, none but. the perpetrators saw when, where, how or by whom this' shocking homicide was committed. Consequently the case against the prisoners cannot be proved by direct and positive testimony, but rests solely upon what is termed circumstantial evidence.
As you are aware, gentlemen, the fact in controversy to be proved in any trial will generally be attested by those who speak of their own actual and personal knowledge of its existence; or else it is to be inferred from other facts, satisfactorily proved. In the former case, the proof rests upon our faith in the veracity, impartiality, opportunity for observation, accuracy of memory, etc. of those who speak of their own personal knowledge. In tlie latter case, it rests on the same grounds, with the addition of the experience and connection between the collateral facts thus proved and the fact in controversy. In the former case, the proof applies immediately to the factum probend um, without any intervening process, and it is therefore called direct or positive testimony. In the latter case, as the proof applies immediately to collateral facts, supposed to have a connection, near or remote, with the fact in controversy, it is termed circumstantial, and sometimes presumptive evidence ; and it is from such facts, if unexplained by the prisoner where guilt is charged, that the jury may," or may not, deduce or infer, or presume his guilt according as they are satisfied, or not, of the natural connection between similar facts, and the guilt of the person thus connected with them.
Circumstantial evidence is receivable in both civil and criminal trials. As crime is usually committed secretly, and often by crafty, professional criminals, its use in criminal trials is even more necessary than in civil suits. For, if excluded by courts in criminal trials, the great majority of criminals, and.especially the most skillful and dangerous ones, would escape punishment, and society would then be deprived of adequate protection.
*577Circumstantial evidence is adopted the more readily on the one hand, in proportion to the difficulty in proving the fact by direct evidence, and, on the other, because of the general ease with which it can be disproved, or with which other facts can be proved which are inconsistent with it, if it never really occurred. But you must nevertheless remember, and most positively, that circumstantial evidence, to warrant a conviction, must be entirely satisfactory and of such significance, consistency and force as to produce conviction in the minds of the jury of the guilt of the accused beyond a reasonable doubt.
Proof beyond a reasonable doubt does not mean that the guilt of the accused, or any other fact, shall be established with the. absolute certainty of a mathematical demonstration. Matters of facts are required to be proved merely to a moral certainty. To require more in dealing with human conduct and the ordinary affairs of life would be impracticable and therefore unreasonable. It is sufficient that any disputed fact relating to these shall be established by that amount of competent or appropriate evidence which ordinarily satisfies an unprejudiced mind beyond a reasonable doubt. The circumstances which will amount to this degree of proof can never be previously defined. The only legal test of which they are susceptible is their sufficiency to satisfy the mind and conscience of a man of common sense and ordinary discretion, and so to convince him that he would act upon that conviction in matters of the highest concern and importance to his own interest.
Reasonable doubt, in the legal sense, therefore does not mean a vague, speculative or whimsical doubt or uncertainty—nor a merely possible doubt of the truth of the fact to be proved.
In civil cases it is the duty of the jury to decide in favor of the party on whose-side the weight of evidence preponderates, and according to the apparent probability of truth; but in criminal eases because of the graver consequences of a wrong decision, the jurors are required to be. satisfied beyond a reasonable doubt, of the guilt of the accused, or it is their duty to acquit him. In civil cases it *578is sufficient if the evidence in the aggregate agrees with and supports the hypothesis which it is adduced to prove; but in criminal cases, it must be such as to produce a moral certainty of guilt and to exclude any other reasonable hypothesis, but that of the guilt of the accused. In both cases a verdict may well be founded on circumstances alone; and these often lead to a conclusion more satisfactory that that produced by direct evidence.
In this connection we will briefly refer to the law in respect to the proof of motive in criminal cases. Whenever, upon the general evidence, the imputed guilt of the prisoner appears to the jury to be doubtful, the absence of any testimony in proof of a motive for the commission of the crime charged, is a circumstance which the jury may consider, in connection with all the other evidence in the case, in favor of the prisoner’s innocence. But whenever upon the general evidence, the jury are satisfied, beyond a reasonable doubt, of the guilt of the accused, notwithstanding the absence of any testimony in proof of such a motive, then, in that case, his guilt being already proved, such absence thereof is manifestly immaterial; for if actually "proved, in such a case it could merely operate as corroborative evidence.
We will also refer briefly to confessions of guilt in criminal prosecutions. These are either direct confessions, or confessions inferred from the conduct, etc., of the prisoner, and termed indirect confessions of guilt. The evidence of verbal confessions of guilt is to be received with great caution, for besides the danger of mistake, from the misapprehension of the witnesses, the misuse of words, the failure of the party to express his own meaning, and the infirmity of memory. It should be recollected that the mind of the prisoner himself is oppressed by the calamity of his situation and that he is sometimes influenced by motives of hope or fear to make an untrue confession. The degree of credit due to them is to be estimated by the jury under the circumstances of each case. The whole of what the prisoner said on the subject at .the time time of making the confession should betaken together. The jury *579may believe that part which criminates the prisoner, and reject that which is in his favor, or vice versa, if they see sufficient grounds for so doing; for the jury are at liberty to judge of it like other evidence, from all the circumstances of the case.
During the progress of this trial, Dr. Formad and Dr. Davis having testified as scientific experts in the case as to whether or not certain stains upon the drawers band, undershirt, towel, Johnson’s shirt and other articles produced before you, contained normal human blood, or, on the contrary, hog blood and menstruous blood, we are called upon to instruct you in regard to the consideration which you are to give to their testimony. Persons accustomed to make chemical and microscopic examination of blood and blood stains, are allowed to testify whether human blood can be distinguished from animal blood, and, if so, whether a particular blood stain was made by human or animal blood. Such evidence has been received in numerous cases, and without any objection. The controversy is not over the admissibility of such testimony, but has been as to the possibility of distiguishing human from animal blood. The possibility of so doing has been asserted on the one hand and denied, to a certain extent at least, on the other. Therefore, although of late far greater exactness and certainty in the examination of blood aud blood stains has been attained than in former years, yet we deem it proper to say to you that the testimony of all such experts is to be received and weighed by the jury with great caution in homicide trials. The value of expert testimony depends on the learning and skill of the expert, and on the nature of the subject of investigation. The value of the testimony varies with the circumstances of each case; and of those circumstances the jury must be the judges. They should take into consideration the expert’s means of knowledge and the reasons he assigns for the opinion he has given, and give or withhold credence to his testimony, as they may find his qualifications sufficient, and his reasons satisfactory, or otherwise. Upon the jury rests the responsibility of rendering a verdict, and if the testimony of any ex*580pert is opposed to the jury’s convictions of truth, it is their right and duty to disregard it. The testimony of experts is to be considered like any other testimony, and is to be tried by the same tests, and receive just so much weight and credit as the jury may deem it entitled to, viewed in connection with all the evidence in the case.
And here it may be remarked that the testimony of the detectives, police officers and relatives of accused persons is to be considered in like manner and be cautiously scrutinized and carefully viewed in connection with all the circumstances proven.
In this case the prisoners Miller and Johnson have attempted to prove the defence of alibi—that is, that each of them were elsewhere and did not commit or participate in the commission of the crime charged against them. In considering the strength of the evidence necessary to sustain this defence, it is obvious that all testimony tending to show that the accused was in another place at the time of the offence, is in direct conflict with that which tends to-prove that he was at that place where the crime was committed, and actually committed it. In this conflict of evidence, whatever tends to support the one, tends in the same degree to rebut and overthrow the other; and it is for the jury to decide where the truth lies. Since this defence is liable both to honest mistake and deliberate fabrication, it must be remembered that the testimony in support of an alibi is to be subjected to a careful scrutiny, both as to the sufficiency of the evidence and the inference to be drawn from the facts, if fully proved. As already stated, the burden is upon the prosecution to satisfy the jury, from the entire evidence in any case, beyond a reasonable doubt, that the accused is guilty of the offence charged. Therefore if, after considering the evidence in support of the alibi, in connection with all the other facts and circumstances proven in this case, you shall be satisfied, beyond a reasonable doubt, that said prisoners are guilty, you may, notwithstanding their evidenceof an alibi, convict them ; otherwise you should acquit.
And now, gentlemen of the jury, it becomes your duty subject *581to the law as we have given it to you, to determine from the entire evidence before you, whether or not the prisoners are the persons who, as principles or accomplices, caused the death of Benson, and within this County.
That the prisoners at the bar are the guilty persons, the prosecutions contends is the only just and rational inference to be drawn from a careful and intelligent consideration of all the facts and circumstances proved by the credible and reliable witnesses in the case. On the other hand the prisoners deny that they are the guilty parties, and contend that no such inference can be drawn from such consideration of all the facts and circumstances so proved. It is upon these opposing contentions that you have to sit in judgment and reach a conclusion before you render your verdict.
In considering the testimony, if you find that any of the wit-messes contradict each other, you must decide between them after viewing the testimony of each in connection with all the facts and circumstances proved in the case, and after considering the comparative impartiality, qualifications and advantages of each for knowing and identifying the prisoners, and Benson and his alleged corpse, etc., and for knowing, observing, comprehending and recollecting the circumstances and matters concerning which they have testified. Where there is a conflict of testimony you must reconcile it if possible. If you cannot do so, then you may reject so much thereof as ’ you deem the less trustworthy and. accept that portion which you consider the more so, after due deliberation upon all the evidence submitted from the witness stand, and from no other source.
You are the judges of the facts and of the credit due to the respective witnesses, and it is your exclusive province, subject only to the law as explained to you by this court, to determine according to the evidence whether or not the prisoners have been proven, beyond a reasonable doubt, guilty of any offence under this indictment.
By reasonable doubt, as we have already explained, is not *582meant a vague, speculative, whimsical, or merely possible doubt but such a doubt only as intelligent, reasonable and impartial men may honestly entertain after a careful examination and conscientious consideration of all the evidence.
It only remains for us to say in conclusion, that if, after such examination and consideration of all the evidence submitted on both sides in this case, you shall be satisfied, beyond such a reasonable doubt, that the prisoners are the persons who, as principals or accomplices, caused the death of Benson, as alleged in this indictment, and within this county, then you are further to determine, subject to the law as we have explained it to you, whether or not the prisoners are guilty of murder of the first degree, or murder of the second degree, or of any kind of felonious homicide, and to render your verdict accordingly. But if, after such examination and consideration of said evidence, you shall not be so satisfied that the prisoners are guilty of murder of either degree, or of aiiy kind of felonious homicide, then you should acquit them and render a verdict of not guilty. Any one or more of the prisoners may be convicted, and the others acquitted under this indictment, according as the evidence may justify and warrant it, in the judgment of the jury.
With these instructions for your aid and guidance in the discharge of your solemn and responsible duty, the case is now submitted to you for your verdict.
The jury, after five hours deliberation, returned with the following verdict:
“ Guilty of murder of the second degree, as to George Henry Hutt, J ames J ohnson and Daniel Miller, alias Daniel Redden; not guilty, as to Julia Hutt.” | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487244/ | Lore, C. J.,
announced the decision as follows: The Court have considered the suggestion of counsel and the construction of the Act of April, 1881, which provides that the State, in certain cases, may pay the expense of witnesses for the defence, and while it does not come before us formally, and we do not desire that this may establish a precedent, yet we are willing to express our judgment of the effect of that statute.
We think the suggestion made that the petition may be presented to a judge in vacation, as well as in Court, does not change the character of the petition at all, but the former method is pursued for the purpose of facilitating business, but the paper itself is a part of the record and a public document. I remember very well in New Castle County that in every case, I think, the petition has been read in open Court, and the State, represented by the Attorney General, had the opportunity to observe, for instance^ that the evidence was not material, or that the affidavit was not in proper form, etc. You are not bound to set forth in detail your evidence, but simply the nature of it, broadly and fully enough in it, however, to inform the Court and the Attorney General what you propose to prove, but not your matter of proof.
We think, therefore, that it must be subject to the inspection of the Attorney General and read in open Court. There is but one class of affidavits that are not public, that is such as affidavits of demand. With that exception I know of no affidavit which can *479be made that is not a part of the record and must be read in open Court.
The case came on to be tried at the same term. The evidence which was circumstantial consisted mainly, on the part of the State, of proof tending to show that the defendant who then resided at Tacony in the State of Pennsylvania had been on the 4th of August, 1892, in and about the neighborhood of the farm of his brother-in-law, John Rosser, near Oak Grove, in Seaford Hundred, Sussex County. Rosser and his wife were on that day absent attending camp-meeting, and on their return at midnight there were indications that something was wrong about the water of the well which attracted attention, but on the following morning the peculiár appearance of the water had disappeared and it was clear. Subsequently, the water being used freely, all the persons residing in the house became ill, the symptoms being such as would naturally indicate that they had taken into the stomach some corrosive poison, and an infant child, Raymond Rosser, after being ill from Friday^ August 5th, died at midnight of the following Tuesday. All the animals on and about the place which drank the same water were similarly affected, The case of the State was that the poison was the result of putting into the well arsenic or some preparation thereof, while the theory of the defence was that the poison, if any, was occasioned by Paris green which had been about the house. There was medical testimony to the effect that the child died fram arsenical poisoning and experts were examined to show what would have been the effect of putting into the well both arsenic and Paris green. The testimony of Dr. Harlan Wallace and Dr. Theodore R. Wolf, who were examined as experts, was to the effect that upon analysis the water gave indications of the presence of arsenic.
The prisoner’s wife was the sister of John Rosser, whose well was poisoned. They had lived together in Maryland several years and he had left her twice to look for work and finally had left her not to return. There was testimony to the effect that he had com*480municated with her through the mail, asking her to return and live with him, and the theory of the State was based upon the idea that his attempts against the life of Mr. and Mrs. Rosser were prompted by the prisoner’s feelings towards them in consequence of their attitude with respect to the differences between himself and his wife.
Nicholson, Attorney General, and Giles, Deputy Attorney General, asked the Court to instruct the jury:
1. An admission by the defendant of an implicating fact, as the purchase and possession of poison, dispenses with proof of that fact. Wharton, Cr. Ev. § 623.
2. An alibi is at once a negation of the defendant’s presence at a particuliar spot at a particular time and an affirmation of his presence at another place at the same time; and where a defendant has set up an alibi by a witness, his statement, that at the time testified to by that witness he was at any other place than that described by his witness must be taken by the jury as a contradiction of the alibi set up by that witness, even though other evidence in the case should satisfy their minds • that he was not at the time at the place he claims to be.
3. Declarations made by a defendant in his own favor, unless part of the res gestae or of a confession offered by the prosecution are not admissible for the defence, and when so admitted their weight is for the jury, and they can be disproved by the prosecution; Wharton, Crim. Ev. §§ 690, 694.
4. The credibility of an impeached witness is for the jury alone, subject to the direction and guidance of the Court.
5. If any man lay poison for a particular person and another *481person finds and takes the same and dies therefrom it is murder in the person laying it.
*480There was also evidence that, when the prisoner’s name was connected by rumor with the poisoning, he had sought to induce the people with whom he was living to make false statements respecting his whereabouts on the day in question. The defence introduced evidence to prove an alibi.
*4816. In the case of death by poisoning it is sufficient if the jury are satisfied from all the circumstances, and beyond a reasonable doubt, that the death was caused by poison administered by the prisoner, and upon that point the material questions are: Whether the prisoner had any motive in poisoning the deceased; whether he had the opportunity of administering the poison; and whether he had poison in his possession, or power to administer it. With these inquiries every part of the prisoner’s conduct and language in relation to the subject are material parts of the res gestae and are admissible in evidence.
7. Circumstantial evidence is in the abstract, nearly, though perhaps not altogether, as strong as positive evidence. In the concrete it may be infinitely stronger. All evidence is more or less circumstantial, the difference being only in the degree; and it is sufficient for the purpose when it excludes disbelief—that is, actual, not technical, disbelief, for he who has to pass on the question is not at liberty to disbelieve as a juror while he believes as a man by reason of the evidence. It is enough if his conscience is clear; Commonwealth vs. Harmon, 4 Barr. 269; s. c., Wharton, Cr. Ev. § 10, note.
8. If the conclusion to which the jury are conducted be that there is that degree of certainty in the case that they would act upon it in their own grave and important concerns, that is the degree of certainty which the law requires, and which will justify you in returning a verdict of guilty. Regina vs. Manning and wife, Crown cases in Wills on Circumstantial Evidence. .
Richards, for the defendant.
(1) Where a judicial confession made by the accused is produced in evidence on the part of the State, the jury are to consider the whole of the confession and weigh the whole of it, and all parts of it are entitled to equal weight. State vs. West, 1 Houst. Cr. Cas. 371.
*482(2) Where a witness produced on the part of the State is impeached by the defence and no evidence in support is proffered by the State, the evidence of such a witness, if the jury believe the impeaching witnesses, is not to be considered by them in arriving at their verdict.
(3) The admission by the defendant of any fact which is no part of the res gestae, cannot be considered an implicating fact. Wharton, Crim. Ev. § 623.
(4) The prisoner is entitled to any. reasonable doubt in the minds of the jury.
Lore, C. J.,
(charging the jury.)
On the night of Thursday, August 4th, 1892, John Rosser and Emma Rosser, his wife, returning from camp-meeting at midnight to their home near Oak Grove, in Seaford Hundred, in this County, found the surface of the water in the well, which water was used for the family to drink, for culinary purposes, and for watering the stock, covered with a white substance which aroused their suspicion. Next morning this had disappeared and the water seemed clear as usual. Suspicion was then allayed, and the water used freely by John Rosser, his wife Emma, their infant son Raymond Rosser and Nellie Rosser, who was visiting there. The water was also used for the horse, the cows and the pigs. From the use of the water the horse was disabled, two cows died, the pigs refused to eat, Nellie Rosser, John Rosser and his wife Emma became sick with violent pains, cramps, vomiting and burning thirst, and some of them were in bed for from two to three weeks. Raymond Rosser, the eighteen months old infant, was sick in like manner from Friday until midnight of the following Tuesday, when he died.
It is claimed on the part of the State that this well of water was poisoned, and that William E. Evans, the prisoner at the bar, put such quantities of arsenic in the well on the night of August 4th as to cause the results above described. He is, therefore, indicted for the crime of murder of the first degree, being the highest grade of homicide.
*483The indictment contains three counts. The first count charges the intent to kill John Rosser; the second the intent to kill John Rosser and the actual killing of Raymond Rosser; the third count charges the intent to murder generally.
In considering this matter the Court is relieved from any necessity of explaining to you the different grades and degrees of homicide. The wilful preparation and giving of poison to a human being constitutes express malice aforethought of the clearest character. It is one of the commonest examples used in the text books.
We therefore say to you that William E. Evans, the prisoner, is guilty of murder of the first degree or he must be acquitted. There is no intermediate ground. Therefore if you believe that William E. Evans put the poison in the well, from drinking the water of which Raymond Rosser died, he is guilty of murder of the first degree in manner and form as he stands indicted.
This is equally true if he put the poison in the well to poison John Rosser, although John Rosser was not killed and his son Raymond Rosser was killed. The crime is measured by what he intended as against John Rosser and as if he had accomplished that intention.
It is incumbent upon the State in this case to prove, 1, that the water in the well was poisoned; 2, that Raymond Rosser died, from drinking that poisoned water; 3, that William E. Evans put . that poison in the well.
In determining this question, gentlemen, you are the sole judges of the facts. With these facts the Court has nothing to do. Our only duty is to state the principles of law governing the case to aid you in the intelligent use of the evidence, and to enable you to arrive at a right verdict.
This is a case of purely circumstantial evidence. Ro witness has been produced who saw the poison put into the well, but a number of circumstances have been shown, which together, it is claimed, fix the guilt upon the prisoner.
Because the evidence is circumstantial it is none the less *484effective if consistent, connected, and unbroken in material points. Indeed vice and crime hide themselves in darkness and subtly cover their tracks by every human cunning and device. Often therefore you must trace it step by step and by cumulative circumstances uncover its dark ways.
In terse language the late Chief Justice Gilpin, in State vs. Goldsborough, 1 Houston's Criminal Reports 314-16, thus gives the necessity and scope of circumstantial evidence:
“ But circumstantial or presumptive evidence is receivable in both civil and criminal cases. The affairs and business of the world could not well be carried on without recognizing the admissibility of this description of evidence. In criminal matters the necessity of admitting it is indeed much more manifest than in civil matters. Crime usually seeks secresy, and the possibility of proving the offence charged by direct or positive evidence is much more rare and difficult in criminal cases than in civil cases. Circumstantial or presumptive evidence is where some facts being proved, another fact follows as a natural or very probable concluí sion from the facts actually proved, so as readily to gain the assent of the mind from the mere probability of its having actually occurred. It is the inference of a fact from other facts proved, and the fact thus inferred and assented to by the mind is said to be presumed, that is to say, it is taken for granted until the contrary is proved. And this is what is called circumstantial or presumptive evidence, and it is adopted the more readily in pro-. portion to the difficulty of proving the fact by direct evidence and the obvious ease with which it can be disproved or with which other facts can be proved, which are inconsistent with it, if it never really occurred.
“ In capital felonies, such as murder, where the proof is of a circumstantial character, it is quite usual to declaim against circumstantial evidence and to denounce and reprobate conviction founded upon such evidence; and yet, the universal experience of those engaged in the administration of justice shows the absolute necessity of admitting it and relying on it, in forming our conclusions in re*485gard to the guilt or innocence of the accused persons. Indeed, if courts of justice were to exclude circumstantial evidence, the great majority of criminals would escape the just penalty of their crimes. They would go unwhipped of justice, and be turned loose upon the community to commit other crimes. But whilst I say this I also say to you most emphatically, that circumstantial evidence, to warrant a conviction must be entirely satisfactory and of such significance) consistency, and force, as to produce conviction in the minds of the jury, of the guilt of the accused beyond a reasonable doubt. The great rule on this subject is this: That where the evidence is circumstantial, the jury must be fully satisfied, not only that those circumstances are consistent with the prisoner’s having committed the act charged as constituting the crime, but they must also be satisfied that the facts are such as to be inconsistent with any other rational conclusion than that the prisoner was the party. They must be such as to exclude any other hypothesis or conclusion.”
Of the circumstances and facts, proved by the witnesses in this case, as well as the credit to be given to each witness, you are the sole judges. You saw the witnesses, heard their testimony, saw their demeanor on the stand, and bearing all these in memory must give to all just such weight, as in your intelligent consideration they should have. You should be governed exclusively by the evidence in this case, and only by what you have heard and seen in this trial in this court room, and from no other sources whatever.
The degree or quantity of evidence necessary to justify a verdict in criminal cases differs from that in civil cases. The distinction is clearly defined in the Groldsborough case just cited (p. 316-17):
“ In civil cases it is the duty of the jury to weigh the evidence carefully, and to find for the party in whose favor it preponderates, although it may not be free from' reasonable doubt. But in criminal trials the party accused is entitled to the benefit of the legal presumption in favor of innocence, which in doubtful cases is always sufficient to turn the scale in his favor. It is, therefore, a rule of criminal law that the guilt of the accused must be fully proved, and neither a preponderance of evidence nor any weight of preponderat*486ing evidence is sufficient, unless it produces full belief of the fact to the exclusion of all reasonable doubt in the mind of the jury. But that does not import in contemplation of law a mere possible doubt; because everything relating to human affairs and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case which after entire comparison and consideration of all the evidence leaves the mind of the jurors in that condition that they cannot feel any abiding conviction to a moral certainty of the truth of the charge. The burden of proof is on the prosecutor. All the presumtions of law, independent of evidence, are in favor of innocence, and every person is presumed to be innocent of the offence charged until he is proved to be guilty. If, upon such proof there is reasonable doubt remaining, the accused is entitled to the benefit of it by acquittal, for it is not sufficient to establish a probability, though a strong one, arising from the doctrine of chances, that the fact charged is more likely to be true than the contrary, but the evidence must establish the truth of the facts to a reasonable and moral certainty; a certainty that convinces and directs the understanding, and satisfies the reason and judgment of those who are bound to act conscientiously upon it. This we take to be proof beyond reasonable doubt.”
If, therefore, gentlemen of the jury, from the evidence in this cause you entertain such a reasonable doubt of the guilt of William E. Evans, you verdict should be not guilty, otherwise your verdict should be guilty in manner and form as he stands indicted.
Verdict not guilty. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487246/ | Cullen, J.
The question the jury are to decide is, whether he could form, under those circumstances, a design to kill. 'It is a mere matter of testimony. He has asked the witness, not as an expert, but as to a fact or what he knows. He is inquiring when he took a drink of liquor, what was the effect upon him ? Some men may take a drink of liquor and not be affected, and others cannot take it without they are affected. That has to be followed up by showing what the condition of this man was at the time this offence was committed. The mere fact of drunkenness, of course, has nothing to do with it, but this matter of destroying the man’s power of forming a design, is something else.
The objection was overruled and the question allowed.
Q,. “ Do you know the reputation for peace and good order of Carlo Buvo, sometimes called Charley White, in the community wherein he lived, at, and prior to the time of the alleged act, and what do you know of the habits of Charley White, or Carlo Buyo, in relation to his general character for violence ? ”
Both of the above questions were objected to, on the ground of irrelevancy.
Mr. Hilles stated that he would follow those questions up by proof that the defendant knew of the character of the deceased.
Lore, C. J.
“ Do you contend that the stab was given by the prisoner in self-defence ?
Mr. MUles.. “ I am not contending that it was a case of self-*497defence, but my purpose is to show that the blow, which resulted in the death of Carlo Euvo, was not dealt with that degree of malice which makes it murder in the first degree.
Nicholson, Attorney General, and Giles, Deputy Attorney General, asked for the following instructions, among others:
Any unlawful and injurious act committed intentionally, without just cause or excuse denotes malice; Kelyng 127; 1 Hawks. Pl. Cr. 95; 1 Archb. Cr. Pr. & Pl. 746; 2 Bouv. Law Dict. tit. Malice; Martinez vs. State, 16 S. W. Rep. 767; State vs. Green, 1 Houst. Crim. Rep. 217, 223.
When the crime of murder is committed with a sedate, deliberate mind and formed design to take the life of or to do some great or serious bodily injury to the person killed, it is murder with express malice aforethought at common law and of the first degree under the statute; State vs. Jones, 1 Houst. Cr. Rep. 17; State vs. Buchanan, id. 79; State vs. Gardner, id. 146; State vs. Greene, id. 217; State vs. Woodward, id. 455; State vs. Brown, id. 539; 2 Roscoe’s Cr. Ev. 760.
Lobe, C. J.
We do not think it admissible, unless your plea is one of self-defence.
Paulino Faino was produced by the defendant and asked by Mr. Hilles, “ did any accident ever happen to your brother (the prisoner) in the old country, if so, what was it.
Objected to, unless the plea of insanity is set up.
Mr. Hilles. I don’t know that we need to inform the State just exactly what the testimony is to be. Certainly if there was any effect upon this man’s mind by reason of the accident which occurred to him, even if it did not amount to insanity, I take it the jury are entitled to know it.
Lobe, C. J.
We will admit the testimony subject to the charge of the court.
*498No specific length of time is necessary to make an act a deliberate act in legal contemplation. If the design to take the life of, or to do some great or serious bodily injury to 'the person killed be but the conception and intention of a moment, it is deliberate in legal contemplation as if it had been the designs of hours.
Deliberate in its legal sense denotes purpose and design in contradistinction to accident and mischance. State vs. Costen, 1 Houst. Cr. Rep. 340, 347; State vs. Webster, Bemis. 458; State vs. Green, 1 Houst. Cr. Rep. 217, 225; State vs. Pratt, id. 249, 262; Seam vs. State, 4 So. Rep. 521.
Provocation to avail anything must be something which the slayer feels at the instant of its occurrence, and he must act under the sting of that provocation, and resent it at once without delay or time for thought or reflection. If, between the provocation and the act of violence causing the death, there intervenes sufficient time for passion to subside, or the blood to cool, or time under the circumstances for the exercise of reflection and the formation of a deliberate purpose in respect to the act which he is about to do provocation will not avail anything. State vs. Costen, 1 Houst. Cr. Rep. 340.
Nor can it alter or mitigate the grade or degree of the murder that the party was at the time in part excited or inflamed with intoxicating liquor, as well as anger and passion, or was intoxicated, if he had sufficient knowlege, thought, and reflection left to be able to exercise and to show such deliberation and choice and to form such design. State vs. Gardner, 1 Houst. C. Rep. 146-149.
Manslaughter in contemplation of law, can only occur in an assault and battery when both are combatants in it, or have been, and one of them in the heat of blood or transport of passion produced by it, deals the other a fatal blow or suddenly seizes without deliberation or premeditation and before he has had time to cool, a deadly weapon or dangerous instrument and inflicts a mortal wound upon him, but not when the other is but the passive and *499unresisting recipient and victim of the blows of the other party ; State vs. Hamilton, 1 Houst. Cr. Rep. 101, 104.
No mere words, however insulting or provoking they may be, and however much they may exasperate a defendant or excite his anger and passion and heat his blood, will constitute a sufficient provocation for an assault; State vs. Draper, 1 Houst. Crim. Rep. 531.
The plea of self-defence cannot enter into the deliberation of the jury in this case in making up its verdict. The prisoner has excluded such a defence by his admission that the crime is at least manslaughter. Self-defence is an entire and complete defence or it is no defence at all.
The defence of drunkenness, such as is alleged in this case, can under no circumstances reduce the crime below the grade of murder in the second degree.
William S. Hilles and William Miehael Byrne, for the defendant, requested that the following instructions, among others, be given to the jury:
The homicide as charged in the indictment being proved, the law presumes that it was committed with malice unless the contrary appears upon the proof produced at the trial, but it goes no further than to imply malice, and therefore the legal presumption goes no further in such a case than that it is murder in the second degree under our statute; State vs. O’Niel et al., Houst. Crim. Rep. 58.
If the jury believe that the killing was done on provocation, but that sufficient time had elapsed for the blood to cool, for passion to subside and reason to interpose, it would be murder of the second degree. State vs. Frazer, Houst. Cr. Rep. 176, 199.
There are no precise limits of time within which the blood may be supposed to cool, passion to subside and reason to interpose, but every case depends upon its own circumstances, and the cooling time would be what was reasonable under the circumstances *500of the case. State vs. Frazer, Houst. Cr. Rep. 176, 199 ; State vs. Till, id. 233, 246.
If the jury believe from the evidence that owing to the prisoner’s intoxication, the condition of the prisoner’s mind and his mental capacity were such that he was unable to form a specific intent or a deliberate design to kill the deceased, they cannot find the prisoner guilty of murder in the first degree. State vs. Bowen, Houst. Cr. Rep. 91-96; State vs. Hurley, id. 28, 36; State vs. Frazer, id. 176, 198.
If the jury believe from the evidence that the homicide was committed by the accused in a state of intoxication and by a certain provocation given him by the party killed, and when a smaller provocation may be allowed to alleviate the offense and reduce it from murder in the first to murder in the second degree under the statute, owing to the well-known fact that a person in that condition is more liable to be suddenly heated and blinded to a higher degree of angry passions than a sober man would be under the same or similar provocation, they should find the prisoner guilty of murder in the second degree. State vs. Hurley, Houst. Cr. Rep. 28, 36.
Lore, C. J.,
(charging the jury.)
On the twentieth day of April, 1894, at Ho. 104 Market Street, in this city, Carlo Ruvo was killed. He was stabbed or cut in the neck by Michael Faino, the prisoner, with a long, sharp-pointed knife, which has been shown to you; the carotid artery was severed and death ensued almost instantly.
For this homicide the prisoner is indicted for the crime of murder in the first degree.
Under this indictment, if warranted by the proof, you may find the prisoner guilty of murder of the first degree, or of murder of the second degree, or of manslaughter.
It is therefore necessary that you should be instructed by the Court, as to what constitutes these three grades of homicide.
1. Murder of the first degree consists in killing a human being with express malice aforethought, or in perpetrating, or *501attempting to prepetrate, any crime punishable with death; that is to say in general, when it is committed with a sedate, deliberate mind and formed design to take the life of, or to do some great or serious bodily injury to the person killed. Such design may be shown from the circumstances attending the act, such as the delibererate selection and use of a deadly weapon, a preconcerted hostile meeting, privily lying in wait, a previous quarrel or grudge, antecedent menaces or threats, or in preparation of means to effect such design or intent.
2. Murder of the second degree, is where there was no such deliberately formed design to take life or to perpetrate or attempt to perpetrate a crime punishable with death, but where, nevertheless, the killing was without justification or excuse; without any provocation or without sufficient provocation to reduce the homicide to the grade of manslaughter.
3. Manslaughter is the unlawful killing of a human being without malice express or implied.
Malice aforethought is the essence of murder. In manslaughter there is no malice.
Under the law and evidence in this case it is now your duty to find by your verdict of which of these grades of homicide the prisoner is guilty.
Whenever one person is killed by another, unless it be under the sentence of the law, it is presumed in law to be unlawful, and to have been done with malice aforethought until the contrary appears.
If the jury are satisfied from the proof that the prisoner at the time of the homicide stabbed or cut the deceased with a knife produced in this cause, which is a deadly weapon, with the intent to kill him, in pursuance of a sedate and deliberate mind and formed design to take his life or to do him some great or severe bodily injury, although such design may not have been formed until the precise time of killing—he would be guilty of murder with express malice aforethought and of the first degree under our *502statute, and your verdict should be guilty in manner and form as he stands indicted.
It is claimed by the defendant that by reason of intoxication the condition of the prisoner’s mind and his mental capacity were such that he was unable to form a specific intent or deliberate design to kill the deceased, and that therefore he is not guilty of murder of the first degree. Such a defence when set up must be proved to your satisfaction. As a general rule, drunkenness is no excuse for murder or any other crime whatever. This rule has been relaxed under the rulings in this State to the extent that drunkenness may reduce the grade of murder from the first to the second degree. In order to so reduce the grade of the crime you must be satisfied that the prisoner was so drunk as to be utterly incapable of forming a specific intent or deliberate design to kill. If you are so satisfied from the proof your verdict should be not guilty in manner and form as he stands indicted, but guilty of murder of the second degree.
It is further urged in behalf of the prisoner, that his crime is only manslaughter, for the reason, that the deceased had previous to the killing made an assault upon the prisoner in an altercation between them in another house, and that the prisoner while in the heat of passion occasioned thereby, killed the deceased before his passion had time to subside and reason to interpose.
If you are satisfied that the prisoner killed the deceased in a sudden brawl or quarrel, under provocation, in the heat of passion, without time for reflection or deliberation, and without cooling time, then your verdict should be, not guilty, in manner and form as he stands indicted, but guilty of manslaughter.
In order to reduce the offence to manslaughter, however, you must be satisfied that the death wound was given upon provocation in a sudden brawl or altercation between the prisoner and the deceased, and in the heat of passion, without time for reflection and deliberation and without cooling time. Where death is produced by a deadly weapon, as in this case, the provocation must be very great to reduce the crime to manslaughter. No mere words, how*503ever insulting, no defying gestures or weak assault will constitute such a provocation.
It is the duty of the State to prove to your satisfaction all the material elements of the crime charged. When proved, however, on the part of the State, and a defence is set up it is the duty of the prisoner to prove such defence to your satisfaction.
If you have any reasonable doubt upon the proof as to the guilt of the prisoner—such a reasonable doubt as your conscience compels you to entertain—you should give the prisoner the benefit of that doubt.
Now gentlemen it is your grave and important duty to determine the question of the prisoner’s guilt upon the proof in this case. Under the law, you are the sole judges of the proof; it is yours to determine the grade of the offence. With the consequences of your verdict you have nothing whatever to do. The single question for you to determine is, whether the prisoner is guilty or innocent?
Verdict guilty. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487247/ | Lore, C. J.
We are equally divided upon this question. Judge Cullen and I are clearly of the opinion that this witness ought not to testify. According to the statute law of this State, he has been proven to be insane, and as such has been committed to the Insane Asylum of the State of Delaware, at Farnhurst, where he was received as such and for a time confined. Finding that he was not violent and therefore could be safely left to the care of his *389family, he was permitted to go home upon parole and has been there for some time.
Insanity once proved, is presumed to continue until it is removed beyond a donbt. This was decided some years ago in the well contested case of State vs. Thomas, where Thomas was charged with killing his little daughter. He was proved by several physicians, in their judgment, to be insane a short time—one or two days—before. Chief Justice Comegys maintained that not withstanding he may have been. insane at that time, unless he was insane at the time of the commission of the act, and so proved, the criminal incapacity would be removed.
On behalf of the prisoner it was contended with great force that insanity once proved, the cloud remains and must be rebutted with positive testimony, and after a most elaborate argument and against the personal conviction of Chief Justice Comegys, the Court so ruled.
Such in this case is the status upon the facts, of these men before us and such is the law governing it. Two witnesses, competent, skillful physicians of this State, under the law, committed the witness as insane. One of the physicians in charge of the institution says he was not discharged as a sane man, and his opinion is that the insane condition remains to this day, so as to unfit him to give a correct statement of what occurred. These men are being tried not for their lives, but upon a charge in which the penalty is imprisonment for life, if found guilty.
I am not willing, where that cloud once exists, unless it is clearly removed, that any man’s life or any man’s liberty should depend upon such testimony. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487249/ | Cullen, J.
I regret very much that there should be a diversity of sentiment among the members of this Court upon the question that is presented for our consideration. But to my mind the facts are beyond all cavil and all doubt.
The Court of Oyer and Terminer is a Court that is organized *416under the provisions of the Constitution for an express purpose that is, the trial of capital offenses. Its functions are entirely confined to that, and it is regulated entirely by statute. It is not a Court having terms like the other Courts. It is subject, under the' provisions of the statute, to be called by what is termed a “ precept,” which has always been the practice.
Much has been said here with regard to what has been the practice in this matter. In fact, there never has been but one practice, and that practice always will be just as it has been. Until a few years ago, all these forms were written out; they were not printed. I have never known of an indictment in a capital case that was not found in the Court of General Sessions, excepting one at the last term here, or the term preceding the last. Heretofore, the form of these precepts was drawn up by the Judges of the Court of Oyer and Terminer, who would put in some provisions with regard to the summoning of jurors. The Court of Oyer and Terminer, acting as such Court in the trial of cases, may, of course,, act as a distinct Court and have its own grand jury. It may act in particular cases on indictments which are found without its having such grand jury. That is left entirely in the discretion of the Court, according to the necessities of the case. That is to say, if the indictment is to be found in the Court of Oyer and Terminer, there must be a grand jury summoned fór that Court. If there is not such a grand jury, then it is a nullity; and you are trying a man just the same as if three justices of the peace should summon a grand jury and send in an indictment here; for you must have something to rest upon. It is not a matter of form; it is a matter of substance.
A man has a right, not only to have a fair and impartial trial, but he has a right to a trial according to the law of the land. What is the law of the land ? That a Court of Oyer and Terminer shall be called; that it shall try all cases that are found within the Court of Oyer and Terminer, summoned as provided by statute. This is all a question of statute law; without the statute it is utterly *417null and void, and a man tried under those circumstances is tried without law, gospel or anything else.
With regard to the issuing of this precept; the precept went out, and it stands there as nothing else in the world but a general order to call the Court of Oyer and Terminer. That is all. This indictment was not found by a grand jury summoned to the Court of Oyer and Terminer. That cannot be disputed. There is no doubt about it. This indictment was found by the grand jury of the Court of General Sessions of the Peace and Jail Delivery. Those are facts that are proven here for our consideration.
That indictment has never been certioraried or sent up to this Court. It is contended here that the defendants did not plead in abatement, and thereby waived their right. Plead in abatement to what? To a nullity? Is a defendant bound to enter a plea in abatement in a proceeding which is null and void ? All those cases that have been' cited refer to cases where there is irregularity. In substance, they are to the effect that if a person waives his right, where there is an irregularity or an informality, he cannot after-wards, having pleaded, take advantage of it. But where the proceedings are null in their incipient stage, at the very bottom and foundation, then the party can take advantage of it either by plea in abatement or by motion in arrest of judgment. It is never too late.
I know the general idea is that these parties have had a fair and impartial trial. Still, we must be governed by law. Once depart from the right path, and where are we?
Here are parties that have been tried—admittedly tried without any law or authority, because you have no Court of Oyer and Terminer unless that Court is legally called and legally exists. If it is legally called and legally exists, and cases are found by such Court, well and good; but if they are found by another Court, then you must follow the provisions of the statute, and the case must be regularly carried up by certiorari. That has not been done in this case.
As to the legality of this precept, the endorsement thereon is *418a nullity. Nothing is in a paper except it is the body thereof. The paper, therefore, which is the record itself (and that is what we are trying) discloses that here is an indictment found in the Court of General Sessions and tried in the Court of Oyer and Terminer without being removed thereto by certiorari: which this Court has no more authority to try than we would have to try these men under an indictment for larceny and convict them of manslaughter.
I think, therefore,—although I am very sorry to disagree with my brother judges,—that the motion in arrest of judgment ought to be granted.
The court being equally divided the motion in arrest of judgment did not prevail.
Ward and A. G. Gray, for the prisoners Brown and Swan, thereupon raised the point that the jury having returned a verdict against the above named defendants, it was necessary for the Attorney General to make a motion that sentence be passed.
The Court unanimously overruled this point.
It was furthermore contended that the Court having been equally divided upon the question of jurisdiction, which had been raised in the motion in arrest of judgment, no judgment could be pronounced by the Court.
Lore, C. J.
When a verdict is found, judgment passes as a matter of course unless arrest of judgment is ordered. The judgment will not be arrested without the interference of a majority of the court. As the motion has not prevailed, Judge Grubb will pronounce the sentence of the law upon the convicted prisoners.
Grubb, J.
Daniel Brown and John J. Swan, stand up.—• Have either of you anything to say why the sentence of the law should not now be pronounced upon you ? You say nothing.
*419It has become a general usage for the judge imposing the sentence to make suitable preliminary remarks to the convicted prisoner in even ordinary criminal cases in this State. To pursue this course is peculiarly appropriate and important in the present instance, in view of the public and wide-spread interest felt in this very notable case, in consideration of the novel questions and uncommon incidents attending this hardly-contested and protracted trial, and in the hope that your conviction and punishment will have a beneficial influence upon those charged with the custody of those hapless and helpless inmates of insane hospitals here and elsewhere, who deserve kindly sympathy and gentle care instead of callous indifference and brutal cruelty.
The grand jury of this county, in attendance on this Court, having found an indictment charging you jointly with murder of the second degree, for the felonious killing of Leon Pisa, on October 5, 1895, in the Delaware State Hospital at Farnhurst, in this county, you were both tried and zealously defended by able and faithful counsel before an impartial jury at the bar of this Court, and found guilty of manslaughter.
On the morning of that day Leon Pisa was an inmate of said hospital. According to the evidence he was a well man sitting quietly on a seat beside one of the witnesses in this case, when you, Daniel Brown, directed him to go with you and receive the bath required by the hospital regulations. It is not shown that he was then actually demented, or a lunatic of violent or dangerous habits or disposition. He resisted by holding on by the seat until he was pulled from it and conducted along the corridor by you, Brown, and the witness, Oakes, to a point about five feet from the bathroom door, where you, John J. Swan, were then standing within sight of and immediate reach of him.
There Leon Pisa, an unarmed man, not shown to be a violent or dangerous patient, was surrounded by you, Brown, and Oakes, and within reach of you, Swan—all three of you vigorous, trained hospital attendants. It was not shown that he was greatly superior to any of you in either size or strength; nor that the three of you *420could not reasonably and without force or violence fatal to his life have controlled him and defended your own lives and persons against any serious harm from him- Nor is it shown that, in the struggle which you both testified to, either of you received the slightest wound or injury to your persons. Yet, within a very few minutes after that struggle, Pisa was a dead man in your hands, with a completely fractured skull and two broken ribs.
Moreover, although it should have been manifest to Dr. Hammond, if he was a competent physician, that Pisa had not died from natural causes, he was nevertheless hastily buried without notice to the coroner and in violation of law.
In view of these undisputed facts, in connection with all the evidence in the case, the jury disbelieved your, defence and found that you had feloniously caused the death of Pisa and were each guilty of manslaughter.
Thereupon, through your counsel, you moved for a new trial on several grounds, among them that the verdict was unwarranted by the law and the evidence, and also that the Court, being equally divided as to the competency of David M. Waples as a witness, erred in admitting him to testify before the jury, although he was admitted subject to the right of the jury to judge of the credibility and weight of his testimony viewed in connection with all the other evidence.
To obtain a new trial, the burden was upon you to satisfy a majority of this Court—in this instance three—of the sufficiency of the grounds urged in that behalf. This you failed to do; for the Court was equally divided on the subject—one-half of us believing that the verdict was in all respects just and legal. Accordingly, a new trial was refused.
The prevailing members of the bench, who denied your mbtion, were not only satisfied that Waples was not shown to be incompetent to testify, but were also convinced that, under the precedents and settled practice in this and other Courts of this State he was legally admitted by the division of the Court as to his admissibility. This principle was established in this very Court in the *421case of State vs. Brown, 1 Houst. Cr. Cas. 545, by Chief Justice Comegys and Judges Wootten, Houston and Wales, sitting in that case, as necessary to the progress of a trial under our judicial system. That their decision is binding upon us as a precedent and course of practice applicable to this case, until reversed at least by a majority of this Court, which has not yet been done, is firmly believed by our side of this Court, consisting of Judge Marvel and myself. ■
Tour application for a new trial having failed, thereupon your counsel moved an arrest of judgment. After argument and mature consideration that motion failed to secure the support of the requisite majority of this Court, and the motion, owing again to a divided Court, has been overruled; and, judgment not being arrested, sentence, as a matter of course, must now be passed upon you.
That a divided Court should produce this result is not new or surprising in this State or elsewhere. Very recently the Supreme Court of the United States, the highest judicial tribunal in the land, was equally divided on the question of the constitutionality of the United States income tax law. The result was that the statute stood until subsequently a majority was obtained to secure its total annulment.
Again, in 1819, in this State, in the case of Clark vs. Kean, 1 Del, Ch. 114, the High Court of Errors and Appeals, by an equally divided Court, affirmed a decree of the Chancellor before it on appeal; and thereupon all the Judges unanimously concurred in framing and rendering the required form of judgment of affirmance. They did this as absolutely necessary under our judicial system to prevent a deadlock and consequent miscarriage of justice in any case before the Court. During the three-quarters of a century which have since elapsed, this rule has continued to be uniformly observed in this State by our Court of Errors and Appeals, as well as in this Court as shown by State vs. Brown, which I have just cited.
As late as 1888 it was expressly considered and unanimously recognized in the Court of Errors and Appeals in the case of *422Walker vs. Farmers Bank, 8 Houston, 258, in which I myself sat with Chief Justice Comegys and Judges Houston and Paynter. So that it is impossible now to question its justice, or disregard its binding authority in this instance without utterly repudiating the wise and necessary doctrine of adhering to the precedents established in our highest and most authoritative judicial tribunal.
The verdict of the jury in this case, like the decree of the Chancellor in the cases I have just mentioned is presumed to be valid and legal in all respects until the contrary is found by a majority of the court in which it is called in question. Before verdict, the accused person is presumed to be innocent until the jury is satisfied beyond a reasonable doubt of his guilt. After verdict he is presumed to be guilty until the legal validity of the verdict is impeached to the satisfaction of a majority of the Court in one of the modes allowed and recognized by the law.
Here there are but two modes allowable for this purpose, namely, the respective motions for a new trial and in arrest of judgment. These having been resorted to by you in vain, and your right to move to challenge the grand or petit jury panels, to^ quash the indictment, and to plead in abatement before verdict, not having been exercised, you have either exhausted or waived the liberal provisions reasonably allowed by law for the protection of the accused. As the public have rights as well as the accused, the law can justly accord no further delays consistently with the public interest and welfare.
Nothing further can now be urged against the legal validity of the proceedings relating to your trial, or of the verdict against you. You are therefore, in legal contemplation, conclusively presumed to be guilty of manslaughter, and the law will not permit the contrary to be shown. This being so, it is the imperative mandate of the law and the absolute duty of the Court to pronounce the sentence of the law for the punishment of the offense found by the verdict. It is not the sentence of the court but of the law, for the court is but the appointed agent of the law to execute its mandate.
Our statute declares that every person who shall commit the *423crime of manslaughter shall be deemed guilty of felony and shall be fined not less than $400.00 nor more than $4000.00, and shall be imprisoned for a term of not less than one nor more than five years. Hence it peremptorily forbids the court to impose upon the person lawfully convicted of manslaughter less than a $400.00 fine and one year’s imprisonment or more than a $4000.00 fine and five years’ imprisonment. Between this prescribed minimum and maximum the court is allowed a discretion but as to whether or not it will impose this minimum it has no discretion. This much must be imposed whether the court, as a whole or a divided' bench, approve of it or not. Ita lex scripta est. A unanimous—much less a divided—court is powerless to repeal a statute; nor can it lawfully evade its mandate. To attempt this would be to violate the law which the court was created to enforce, and to disregard the duty which it has solemnly sworn faithfully to perform. If persisted jn, the consequences of such a course would surely paralyze the administration of justice, subvert social order, and imperil the public safety and general welfare.
Wherefore, it is that the grave and imperative duty is now devolved upon this Court of imposing upon each of you the sentence of the law which you have been legally found guilty of violating.
The sentence of the law, as considered by the Court, is that you forfeit and pay to the State of Delaware a fine of $400.00 ; that you be imprisoned in the public jail of this county for the term of one year, commencing this day and ending the 17th day of March, A. D., 1897, and that you pay the costs of your prosecution ; and you are now committed to the custody of the Sheriff until this sentence is fully executed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487252/ | Dore, C. J.
(dissenting) :—I regret to dissent from my learned brethern, recognizing their ability and knowledge of the law ; but after such careful consideration as I could give it, my mind has reached a different conclusion.
The question asked the witness—“Have you ever been convicted in this Court of house-breaking ”—involves two elements: The compressed fact, the character of the crime as disclosed by the record ; also the identity of the prisoner—have you ever been convicted of house-breaking ; a fact that the State majr possibly be able to prove in no other way. You are not giving in' detail what the record contains, but asking him as a fact, which he and every other person who has been convicted of a crime ought *309to know, viz: whether he is the person who has beenso convicted and of the general character of the crime. As a fact, it seems to me unless there be some controlling reason to the contrary, that that question ought to be put to him as to his identity with the general crime with which he is charged or convicted of.
Formerly, conviction of a felony disqualified a witness, and hence the strict rule of the common law—and it did not matter how much interest was involved or whose interest was involved— if he was a felon and convicted, then he was forever debarred from going upon the witness stand. Hence it was that the later cases at common law required strict proof of the felony. In the two early cases of the common law—Priddle Case, Leach's Criminal Law, 382, and King vs. Edwards, 4 Term Reports, 440, directly the opposite doctrine was held, viz: that the witness can be asked such a question, and the question was there asked and answered. Since then there has been a variance in the decisions. But we are not at common law now, where felony absolutely disqualified the witness and prevented him from giving testimony either in his own behalf or in the behalf of any other. We are under statute, and the purpose of that statute is that conviction for felony shall not disqualify a witness but that the fact may be proven to go to his credit. So that by express statutory provision his conviction is made by the law, competent and proper evidence as testing his credit.
Is there any reason of law that we can discover now why that old rule, if such a rule there be, should be strictly adhered to and that he cannot be asked this question ? It may be said that the record is the best evidence. The record does not disclose that this man was convicted ; it may have been another ; and even if it did disclose this name, the identity is not proved ; 50 that the question goes beyond the mere fact of what is contained in the record—the identity of the person. It seems right :herefore to admit parol proof. Suppose you asked him, " Were fou convicted, by the records of this Court, of house-breaking?” md he answers, ‘T was.” Does it hurt him a whit more than he record under the statute ? Is he injured in any way ? How loes it injure him? The record is here to protect him, and under *310the statute it can be put in. It does not take away from him any privilege. If he has not been convicted and answers he has not, then his answer is conclusive and it is supported by the record. The fact that the record is of this' Court, makes the danger of mistake less probable than if of some other court, as the record of conviction is at hand. I can see no reason for the exclusion of the question, on the contrary I can see the broader reason for its being put, which is recognized by Judge Cooley and by the whole trend of modern decisions, that when a man is put upon the stand—if he be a felon and by statute is made competent, but his credit is tested by that felony—that you may ask him the fact whether he was convicted of a felony.
I have looked with some degree of care at the case in 15 Johnson (N. Y.), 82, and have also considered the passage in Greenleaf, which is based on the later decisions at common law, which law excludes the witness and makes him incompetent to testify. But Greenleaf does not endorse the doctrine and it is not in accord with the whole trend of modern decisions. It does seem to me from reason and for the promotion of justice that when a felon is put on the stand, that the privilege of testing his credit by asking him that question should be allowed, unless there be some controlling reason to the contrary. I am willing to hold to the old forms, so far as they conform to reason. When they depart from that and the reason ceases, it strikes me the law also should cease. I know from five years’ experience as Attorney- General and from a great deal of experience in the courts that this question has been put again and again in this Court over objection, though never argued as elaborately as now. I do not recall any particular argument, but the practice in this Court has been quite uniform for more than thirty-five years to my knowledge.
For these reasons, I have been compelled to dissent from the judgment of my learned brethern, and think it is competent to ask the question.
An exception was noted, for the State, to the opinion of the Court.
*311Fisher was then asked the following questions by Mr. Cooper:
‘ ‘ X. Were you, or not, indicted in the Court of General Sessions of the Peace and Jail Delivery of this county for breaking into the dwelling-house of Samuel D. Forbes in the night time, and were you not acquitted, on the ground that while there was proof of your breaking, there was no proof of your entry?”
Objected to by counsel for defendant. Mr. Cooper inquired whether Judge Grubb’s ruling went to the extent of the above question.
Grubb, J:—
I confined the ruling I made simply to the question before us at that time. It is the unanimous opinion of the Court that the question you now put is inadmissible. Therefore we disallow it.
Mr. Cooper:—Are you the William Fisher who was convicted in the Municipal Court of this cits'- on the 15th of October, 1896, for keeping a disorderly house at 840 Tatnall street, this city ?
Objected to by counsel for defendant as irrelevant.
.Grubb, J:—
That is not a felony. We unanimously rule that you cannot ask him that question.
Mr. Cooper: Are you the William Fisher who was convicted in the Municipal Court of this city on the twenty-first day of March, 1897, for assault and battery on a woman by the name of Julia Clayton?
Objected to by Counsel for defendant. Question disallowed.
State’s Prayers.
The State prayed the Court to charge the jury as to intent and reasonable doubt.
State vs. Manluff, 1 Houston’s Criminal Cases, 208; State vs. Carpenter, 1 Houston’s Criminal Cases, 367.
*312Dependant’s Prayers.
The defendant prayed the Court to instruct the jury as follows:
1. There must be clear and unequivocal evidence of the corpus delicti, that is to say, of the breaking and entering in the nighttime of the dwelling-house with the intent to commit the felony.
State vs. Carter, 1 Houston’s Criminal Cases, 412.
2. The intent is a substantial and material fact, and must either be proved from evidence of the actual commission of the felony or naturally and reasonably implied from the circumstances and overt acts, viz: prisoner’s conduct in the room, his conversation and threats, the weapons used, means and instruments provided and the character of the room.
State vs. Manluff, 1 Houston's Criminal Cases, 216; State vs. Carter, 1 Houston's Criminal Cases, 416.
3. ■ The jury must be satisfied beyond a reasonable doubt that when the prisoner raised the latch of the outer door he had the specific intent of committing rape upon a particular person, in this case upon Maria Hunt.
The intent to commit a rape must co-exist with the breaking and entering.
5 Am. and Eng. Ency. of Law (2 Ed.), 60; State vs. Carpenter, 1 Houston's Criminal Cases, 369, 370; State vs. Manluff, ibid, 216; 1 Bishop's Criminal Law, Sec. 342.
4. There is no evidence that prisoner intended to have carnal knowledge of any woman, much less is there evidence that he intended to have carnal knowledge of any woman by force. Yet proof of overt act or acts evidencing an intention forcibly to ravish, is the essential proof of an intention to rape. The only proof in this case is that upon sight of the ■woman the prisoner ran away.
State vs. Smith, 9 Houston, 588; 31 Atl. Reporter, 441; State vs. Carpenter, 1 Houston's Criminal Cases, 370.
*313Grubb, J.,
charging the jury:
Gentlemen of the jury:—This indictment which you are empaneled to try has been found under Section 7, of Chapter 128, of the Revised Statutes, which provide that “if any person shall, in the night time, break and enter into the dwelling-house of another person with intent to commit murder, rape or arson, whether such' intent be executed or not, he shall be deemed guilty of burglary and felony and shall suffer death.”
Said indictment charges that William Fisher, the prisoner at the bar, in the night time, the dwelling-house of William Hunt, in this county, feloniously and burglariously did break and enter with intent one Maria Hunt, then and there, violently and against her will, feloniously to ravish and carnally know, against the form of the statute, &c. It contains but a single count, and charges him solely with what in brief is commonly called burglarly with intent to rape, and not with intent to commit murder, arson or any other felony.
So that if you should find that the prisoner did not break and enter by night into the said dwelling-house with intent to commit rape, but with intent to commit murder, arson, robbery, larceny, or some other felony, then you could not, under this indictment, find him guilty in manner or form as he stands indicted. Before you can find the prisoner, William Fisher, guilty in manner and form as he stands indicted, you must, inasmuch as he is presumed to be innocent until proved guilty, be satisfied beyond a reasonable doubt, from all the evidence produced at the trial of this case; first, that the dwelling-house of William Hunt, in this county, was broken and entered into in the night time by said prisoner; and, second, that this was so done by the said William Fisher with intent to commit rape upon the said Maria Hunt. It is not necessary to prove that such intent to rape was in fact executed, for under the provisions of our statute the actual accomplishment of the intended rape is expressly declared to be immaterial.
Burglarly generally is defined to be the breaking and entering into the dwelling-house of another in the night time with intent to commit a felony, such as murder, rape, arson, larceny *314and other offenses not now necessary to enumerate or define. Both breaking and entering are necessary to constitute the .offense, and both must be in the night time; and the building into which the entry is made must be proved to be a mansion or dwelling-house for the habitation of man, and actually inhabited at the time the offense is committed. The breaking of the house may be actual by the application of physical force; or constructive, as where the entrance is obtained by fraud, threats or conspiracy. An actual breaking may be proved by evidence of very slight force, such as lifting the latch of a door, pushing or forcing open a closed door, breaking a window, pulling up or dowm an unfastened sash, picking a lock, drawing back a bolt, breaking and opening an inner door, after having entered through an open outer door, or window, or other like acts; and also by evidence of escaping from the house by any of these or the like means.
If upon consideration of all the evidence you shall be satisfied, beyond a reasonable doubt, that the said dwelling-housé of William Hunt was broken and entered into in the night time, and by the prisoner as alleged in the indictment, then you must further be likewise satisfied that it was so broken and entered into by him with intent at the time of such breaking and entering, to commit rape upon the said Maria Hunt, whether such intent was actually executed or not. For if you should be thus satisfied that he so broke and entered thereinto with such intent, then the proof of the offense would be complete and the prisoner’s guilt established. Therefore the question whether or not he so broke and entered into said dwelling-house with the felonious intention specifically alleged in the indictment, that is to say, with the intent to commit rape upon the said Maria Hunt, is the gravest and most important one which you are required to consider in this case. For it is this specific intent which is the gravamen of this offense, and which constitutes that which would otherwise be only a misdemeanor under our statute law—the essential and indispensable ingredient of the alleged burglarious felony.
To constitute our statutory offense of burglariously breaking and entering a dwelling-house with intent to commit rape, the *315circumstances must be such as to show that it would have been rape had the accused executed his felonious intent, for the essential ingredients of rape, except an actual penetravit, must be proved. Therefore the jury should be informed as to the nature and definition of the crime of rape.
Rape, in this State, has been held to be the carnal knowledge of a woman by force and against her will. Force, either actual or presumptive, is, in legal contemplation, an essential and indespensable element of rape, whether it be committed on a female over or under the age of consent. Upon proof of carnal penetration of a female of the age of consent—that is, of seven years of age or more, in this State—the burden is upon the prosecution to further prove to the satisfaction of the jury, beyond a reasonable doubt, that the penetration was consummated by force and against, her will, or by putting her in great fear and terror, before a conviction of rape can be had.
Consequently, as rape upon a female of the age of consent can only be committed with force and against her will, or by putting her in great fear and terror, it follows that the intent to commit rape upon such a female must also necessarily include the design and purpose to accomplish the felonious carnal knowledge with force and against her will, or by putting her in great fear and terror, and that therefore the burden is upon the prosecution to satisfy the jury that such design and purpose are shown beyond a reasonable doubt by the evidence before them, before the accused can be convicted of such intent. If, however, the proscution fail to do this, or if it appear to the satisfaction of the jury that the accused, at the time of the alleged burglarious breaking and entering, intended to seek or obtain the sexual connection by the milder means of solicitation, entreaty, and the like, or in any other -way with the express consent or the silent acquiescence of such female, then the accused could not lawfully be found guilty of the intent to commit rape. It will therefore be for the jury to consider and determine in this case from all the evidence and circumstances proved, whether or not the prisoner, William Fisher, broke and entered .the said dwelling-house with the felonious intent then and there to have sexual connection with the said Maria Hunt by force and against her will. *316For if that was not the intent with which* he broke and entered the house, then he did not break and enter it with the intent to commit rape upon her, and therefore ought* not to be convicted under this indictment of that specific crime. If, however, the jury should be satisfied beyond a reasonable doubt from all the evidence that he so broke and entered it with that intent, then he should be convicted thereof.
In the case now before you the prisoner is indicted not for rape, but for the burglarious breaking and entering a certain dwelling-house with intent to commit rape. It is the specific, felonious intent to commit rape which constitutes the offense as charged in this indictment. Therefore the said intent to commit rape on the body of Maria Hunt is a material fact alleged by the State, and is as necessary to be proved by the prosecution, to the satisfaction of the jury beyond a reasonable doubt, as any other essential ingredient of the offense alleged in this indictment, in order to obtain the conviction of the accused in manner and form as he stands indicted. Such specific, felonious intent may be proved by direct evidence, such as the express confession or declaration of the accused that he committed the alleged burglarious breaking and entering with the intent charged. Such intent, or purpose of the accused’s mind may also be established by indirect or circumstantial evidence, that is, it may be inferred by the jury from the proven acts and conduct of the prisoner and the facts and circumstances attending them, which fairly and reasonably indicate the alleged intent to commit a rape, where these are sufficient, viewed in connection with all the evidence in the case, to warrant such an inference and conclusion beyond a reasonable doubt.
Circumstantial evidence is receivable in both criminal and civil trials. It is adopted the more readily, on the one hand, in proportion to the difficulty in proving the fact in issue by direct evidence, and on the other because of the general ease with which it can be disproved, or with which other facts can be proved which are inconsistent with it, if it never really occurred.
But you must, nevertheless, remember that circumstantial evidence, to warrant a conviction, must be entirely satisfactory *317and of such significance, consistency and force as to produce conviction in the minds of the jury of the guilt of the accused beyond a reasonable doubt. As this Court has heretofore announced, the established rule on the subject is this : Where the evidence is circumstantial, the jury must be fully satisfied, not only that the circumstances proved are consistent with the prisoner’s having committed the act and with the intent charged as constituting the crime, but they must also be likewise satisfied that the facts are such as to be inconsistent with any other rational conclusion than that the accused is guilty of the alleged offense.
In instructing you as to proof of guilt beyond a reasonable doubt, we will repeat the language of this Court in another case: ‘ ‘ Proof beyond reasonable doubt does not mean that the guilt of the accused, or any other fact, shall be established with the absolute certainty of a mathematical demonstration. Matters of fact are required to be proved merely to a moral certainty. To require more in dealing with human conduct and the ordinary affairs of life would be impracticable and therefore unreasonable. It is sufficient that any disputed fact relating to this shall be established by that amount of competent or appropriate evidence which ordinarily satisfies an unprejudiced mind beyond a reasonable doubt. The circumstances which will amount to this degree of proof can never be previously defined. The only legal test of which they are susceptible is their sufficiency to satisfy the mind and conscience of a man of common sense and ordinary discretion, and so to convince him that he would act upon that conviction in matters of the highest concern and importance to his own interest.
‘1 Reasonable doubt in the legal sense, therefore, does not mean a vague, speculative or whimsical doubt or uncertainty, nor a merely possible doubt of the truth of the fact to be proved, but such a doubt only as intelligent, reasonable and impartial men may honestly entertain after a careful examination and conscientious consideration of all the evidence.”
In conclusion, gentlemen of the jury, we will merely add that you are the judges of the facts and of the credit due to the respective witnesses ; and it is your exclusive province, subject *318only to the law as announced to you by this Court, to determine, after a careful examination and conscientious consideration of all the evidence, whether or not William Fisher, the prisoner at the bar, has been proven, beyond a reasonable doubt, to be guilty of the alleged burglary with the intent to rape the said Maria Hunt, as charged in the indictment, or of any other offense.
If, after such examination and consideration of all the evidence submitted on both sides in this case, you should be satisfied beyond a reasonable doubt that the prisoner is guilty in manner and form as he stands indicted, then you should render your verdict accordingly. If, however, you shall be so satisfied that he is guilty of the alleged breaking and entering of the dwelling-house, but not guilty of the alleged intent to rape, as charged in the indictment, then you should acquit him of the said intent to rape, and find him not guilty in manner and form as he stands indicted, but guilty of the breaking and entering alone, as you may lawfully do, under the provisions of the statute in that behalf, if the evidence shall warrant such finding. (Sec 2, Chapter 547, Volume 16, Laws of Delaware—Revised Code, 941.) But if you shall not be satisfied, beyond a reasonable doubt, after such examination and consideration of the evidence, that the prisoner is guilty either in manner, and form as he stands indicted, or of the breaking and entering alone, then you should acquit him and render a general verdict of not guilty.
With these instruction for your guidance and assistance in the discharge of your serious and responsible duty, the case is now submitted to you for your verdict. ’ ’
(Eater the jury was brought into the court room for further instructions) :
Grubb, J:—
Gentlemen of the jury, you have presented the following question to this Court: “To the Honorable Judges: The jury want to know if this man is found guilty in the manner and form as he is indicted will the penalty be death, as the act was not attempted.”
*319We give this answer to your inquiry: If you shall find that William Fisher, the prisoner, is guilty in manner and form as he stands indicted, the penalty prescribed by the statute under which the indictment has been foimd will be death, whether the alleged intent to rape was executed or not.
Verdict: “Guilty with a recommendation to the Court for mercy. ” | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487253/ | Dore, C. J:—
Under the circumstances of this case, the Court do not think this testimony is admissible.
The witness Harriet Johnson testified to the following conversation with the deceased shortly after the flames were extinguished, viz: “She said to me, ‘Oh, Aunt Harriet, I’m going to die; I’m going to die.’ I said, ‘No, I guess not Fannie; pray;-' and she said, ‘Oh, Aunt Harriet, I can’t pray.’ ’’
*322The State then offered to prove certain statements made by the deceased (as dying declarations) explaining how the occurrence happened.
Objected to by counsel for defendant. Objection overruled.
The witness then continued:
“I said, ‘Fannie, how did this happen ?’ and she said, ‘Bert throwed the lamp at my head and I dodged it and the lamp fell down the steps,, and he shoved me down.' ”
The witness Martha Duckery was recalled by the State to prove, as dying declarations, certain statements made by the deceased to the witness after the deceased had told Harriet Johnson that she was going to die.
Objected to by counsel for defendant.
Dore, C. J:—
The rule as to the admissibility of dying declarations is very clearly stated in Section 158 of 1 Greenleaf on Evidence. “It is essential to the admissibility of these declarations, and is a preliminary fact to be proved by the party offering them in evidence, that they were made under a sense of impending death; but it is not necessary that they should be stated, at the time to me so made. It is enough, if it satisfactorily appear in any mode, that they were made under that sanction; whether it be directly proved by the express language of the declarant, or be inferred from his evident danger, or the opinions of the medical or other attendants, stated to him, or from his conduct, or other circumstances of the case, all of which are resorted to, in order to ascertain the state of the declarant’s mind.”
Here is an offer of a statement as a dying declaration under these circumstances: the' decedent had previously made the declaration to a witness, according to the testimony of that witness, that she was going to die, and reiterated it. Afterwards, according to the testimony we already have before us, within thirteen minutes she repeats to this witness the declaration previously made that she was going to die. Under those circumstances that would clearly bring this within the rule that admits it as a dying declaration. The ground I put it on is this: That a *323declaration was made by the decedent to Mrs. Johnson that she was going to die, and within thirteen minutes another declaration was made, according to this witness, that she was about to die, and between those two declarations comes in this statement.
Grubb, J.:—
I concur with the Chief Justice. It is necessary for the State, before they can produce evidence which they evidently intend to attempt to produce, that they show that the declarations of Fannie Kelly were made when she was under the apprehension of impending death. It is, therefore, only necessary for you to show the circumstances which warrant us in believing that she was then under the apprehension of impending death. This witness, upon my question, has stated that at the time she heard Fannie Kelly make this declaration that Fannie was in great agony, having been on fire and that while she was in great agony resulting from her being on fire she declared that she was going to die. Under these circumstances, I concur with the Chief Justice that she is undoubtedly entitled to state what Fannie Kelly said under proof of her belief that her death was impending and imminent.
Spruance, J.,
dissented on the ground that the witness had stated in reply to a question asked by him, that the alleged statements of the deceased were made by her before she said she was going to die.
The defendant’s counsel excepted.
Walter Witsil, State Detective, was called to the stand by the State to prove certain admissions made by the defendant in the corridor of the prison in the City Hall shortly after his arrest and in the presence of several police officers. After testifying that there was nothing in the way of an inducement or reward held out to the prisoner nor threats made, the State asked the witness the following questions : “When you asked him how the woman came to her death and if he threw the lamp at her, what did he say ? ’ ’
Objected to by counsel for defendant on the ground that the circumstances in the case—the defendant being in custody, in a *324prison, and surrounded by the police officers—were enough to amount to an inducement.
Bran vs. U. S., 168, U. S. 532.
Dore, C. Jv
We think that under the proof in this case, there is nothing to show any threat or any inducement of reward of any kind. The case of Bran vs. U. S.. 168, U. S. 532, cited by the counsel for the defendant, is an exceptional one, but it recognizes the general rule that to exclude the statements or admissions it must be shown that they were made either under the influence of fear of punishment or of the hope of reward.
The objection is overruled.
The Court charged the jury upon the various propositions of law raised by the prayers of the respective counsel, as follows :
Dore, C. J:—
Gentlemen of the jury: In this case, the
State has relieved you from the necessity of passing upon the different degrees of homicide. For although the indictment is for murder of the first degree, the State asks for a verdict of manslaughter only. You, therefore, are to determine whether the prisoner, Albert Trusty, is guilty of manslaughter or not guilty.
Manslaughter is “the unlawful killing of another, without malice, either express or implied;” and is divided into two classes, voluntary and involuntary.
Voluntary manslaughter is where one kills another in the heat of blood, and this usually arises from fighting or from provocation.
Involuntary manslaughter is where one doing an unlaivful act not felonious, nor tending to great bodily harm, or doing a lawful act, without proper caution, or requisite skill, undesignedly kills another.
In order to warrant a verdict for manslaughter, it is incumbent on the State to satisfy you beyond a reasonable doubt, that Fannie Kelly died from injuries received at the hands of Albert Trusty, in the manner set forth in the indictment, and that such injuries were unlawfully inflicted by Trusty.
*325If, from the testimony, you should be satisfied that her death resulted from injuries received from him, you must further find that such injuries .were unlawfully, inflicted before you may convict of the crime charged. The determination of this question involves the careful and conscientious consideration by you, of all the circumstances of the case as disclosed by the testimony.
Should you find that Fannie Kelly laid her hands upon, or made an assault upon Trusty and in warding off that assault, or in relieving himself from an attack made upon him by her, he merely pushed her away from him, using therein only such force as was reasonably necessary to effect that purpose, and that from such pushing Fannie fell or was knocked down stairs in her fall overturning the lamp, thus setting her clothes on fire, and thereby receiving the injuries from which she died, your verdict should be not guilty. For Trusty, in that case, had a right to use so much force as was necessary to relieve him from contact with her. Her death in that case would be the result of an accident arising from lawful causes.
On the other hand should you find that he wilfully or in the heat of passion used unreasonable or excessive force or violence, and therefrom she so' fell and received the injuries from which she died, your verdict should be guilty; as such unreasonable or excessive force or violence was unlawful.
It is well settled, that mere words or gestures, however opprobrious, irritating and insulting they may be, will not justify an assault. Therefore, if you should find that, provoked by her words or gestures only, the prisoner pushed Fannie over the lamp, or threw the lamp at her, thereby causing the burns which resulted in her death, he would be guilty of manslaughter. In such case it would be immaterial, whether she was drunk or sober, or how profane the language may have been, as they alone would constitute no sufficient provocation in law to justify his act in so pushing her or throwing the lamp at her.
Every one is presumed to be innocent of crime until proved to be guilty. Therefore you should bear in mind the ‘ ‘ rule of criminal law, that the guilt of the accused must be fully proved. The persuasion of guilt ought to amount to such moral certainty, *326as to convince the minds of reasonable men beyond all reasonable doubt.” ( 3 Greenleaf s Evidence, Sec. 29).
Should you entertain any such reasonable doubt, it should inure to the acquittal of the prisoner.
The rule governing the weight of dying declarations as evidence, upon which we have been asked to charge you, is well expressed in Section 162, 1 Greenleaf on Evidence: ‘ ‘These declarations, when deliberately made, under a solemn and religious sense of impending dissolution, and concerning circumstances, in respect of which the deceased was not likely to have been mistaken, are entitled to great weight, if precisely indentified, yet it is always to be recollected that the accused has not the power of cross-examination■—a power quite as essential to the eliciting of all the truth, as the obligation of an oath can be; and that where the witness has not a deep and strong sense of accountability to his Maker, and an enlightened conscience the passion of anger and the feelings of revenge may, as they have not unfrequently been found to do, affect the truth and accuracy of his statements, especially as the salutary and restraining fear of punishment for perjury is in such cases withdrawn. And it is further to be considered, that the particulars of the violence to which the deceased has spoken were in general likely to have occurred under circumstances of confusion and surprise, calculated to prevent their being accurately observed, and leading both to mistakes as to the identity of persons, and to the omission of facts essentially important to the completeness and truth of the narrative.”
Governing yourselves exclusively by the evidence in this cause, under the law as the Court has thus laid it down, the one question for you to determine thereunder is, whether the prisoner be guilty of manslaughter or not guilty. The form of your verdict should be not guilty in manner and form as he stands indicted, but guilty of manslaughter only; if you determine that he is guilty. Otherwise your verdict should be simply not guilty.
The jury disagreed. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487254/ | Lore, C. J.:
The case of State vs. Bradley, Houst., Crim. Cases, 164, is an indictment for burning a barn, and there the tenant in possession is entitled to compensation money. The language of the Court can only be applied to that case. As a matter of course, the property must be laid in the tenant in possession in a case of that kind, because he was the person who was entitled to whatever compensation their might be. That was the case of a variance also between the allegations in the indictment. It is laid down by Greenleaf that the ownership of the house must be laid in some other person than the person himself.
This indictment distinctly sets out that this house which was alleged to have been set on fire by the person, was in the possession of Lafferty, the prosecuting witness, as tenant; and we think there is enough in it to sustain the indictment. We refuse to quash the indictment.
Note—Lore, C. J., charged the jury. After remaining out over night, the jury reported that they could not agree and were thereupon discharged. The prisoner was subsequently indicted at the same term for manslaughter and pleaded guilty. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487255/ | Lore, C. J.:
The majority of the Court think that this is not a disqualification. If it be so, then every juror who did not want to sit upon a case could intimate in some way or other that you had better not take him, and we would never get these cases tried, as it is an exceedingly unpleasant thing to sit in judgment upon a human life. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487296/ | Pennewill, C. J.,
charging the jury:
Gentlemen of the jury:—John Harmon, the prisoner, is charged with the crime of murder of the first degree. It is contended by the state that the prisoner on the fourth day of July last in the Town- of Réhoboth, in this county, without cause, justification or excuse, cut and stabbed one Thomas Rickits in a quarrel or fight resulting from a game of crap, and that as a result of said cutting Rickits died some days thereafter of tetanus or lockjaw.
[1] We may say in this connection that if the lockjaw which it is alleged was the direct cause of Rickits’ death resulted from the knife wounds inflicted by the prisoner, then the death was caused by said wounds.
The prisoner does not deny that he cut the deceased, or that he inflicted the alleged mortal womid, but he claims that he did the cutting in defense of his life, or to escape great bodily harm, from an assault which Rickits was at the time committing upon the prisoner with a knife, and from which the prisoner claims he could not escape.
(The court then defined the two degrees of murder, malice express and implied, manslaughter, and self-defense, as announced in the case of State v. Brooks, 3 Boyce, 203, 84 Atl. 225.)
(In respect to threats alleged to have been made by the deceased against the prisoner, the court said):
[2] In determining whether the prisoner was acting in self-defense when he cut Rickits, you may consider any threats shown by the evidence to have been made by Rickits against the prisoner and known to the prisoner before the cutting. But you should not consider any threats that were not communicated to the prisoner before he did the cutting, because threats are admissible in evidence only on the theory that they were operating upon the mind of the prisoner and causing him to fear the deceased and apprehend injury from him at the time the prisoner used his knife.
[3] And we may also say that no previous threats made by the deceased against the prisoner would justify the cutting by the latter unless in the judgment of the jury he had reasonable, cause *298to believe, and did believe, at the time he cut the deceased that he was in imminent danger of death or great bodily harm, and that there were no reasonable means of avoiding the danger by escape or retreat. . .
Verdict, not guilty. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487297/ | Pennewill, C. J.,
charging the jury:
Gentlemen of the jury:—The prisoner, Peter Krakus, alias Peter Melba, is charged in this indictment with murder of the first degree.
It is claimed by the state that the prisoner on Saturday, March sixth of the present year, at Sixth and Market Streets in this city, without excuse or justification, deliberately, designedly and with express malice aforethought, shot and killed Francis X. Tierney, a police officer of this city, while he was attempting, in the discharge of his duty, to arrest the prisoner. It is further claimed by the state that the prisoner had several times shot Sharpless, another police officer, at or immediately before Tierney attempted to make the arrest, and that no shot was fired at *329the prisoner by either officer, or any one else, before the officers were shot.
The defendant, by his counsel, does not contend that he is not guilty of any crime, but claims that he is not guilty of any crime greater than murder of the second degree.
It will not be necessary, therefore, for the court to define and explain to you any crimes other than murder of the first and second degree.
[1, 2] The only thing you are here to try, the prisoner’s counsel claims, is whether the prisoner is guilty of murder of the first or second degree. But before defining the two degrees of murder, we may say, that homicide is the killing of one human being by another, and felonious homicide includes both murder of the first and second degree. Malice is an essential ingredient of murder of both degrees; and without malice there can be no murder either of the first or second degree.
Malice is not easily defined. It is a condition of the mind or heart, and in legal contemplation is not restricted to spite or malevolence towards the particular person slain, but also includes that general malignity and reckless disregard of human life which proceed from a heart void of a just sense of social duty and fatally bent on mischief.
[3, 4] Murder of the first degree is where the killing was done with express malice aforethought. To constitute this crime the malice must be what the law terms express malice. Express malice aforethought exists where one person kills another with a sedate, deliberate mind and formed design, which formed design may be manifested in many ways, as, for instance, by lying in wait for the deceased, by a former grudge, ill will, spite, hatred, or malevolence towards the deceased, or any other circumstances which disclose the formed design, purpose or intention of the accused towards his victim at the time the crime was committed. The deliberate selection and use of a deadly weapon is a circumstance, which in the absence of satisfactory evidence to the contrary, indicates the existence, in the mind of the person committing the act, of a deliberate formed design to kill.
If the jury are satisfied from the evidence that the prisone *330when he .killed the deceased, deliberately intended so to do, the length of time that said intention existed is immaterial. If a design or intention to take life be but the conception of a moment, it is sufficient, for if the slayer had time for thought, and thinking did intend to kill, it is just the same in legal contemplation as if he had intended it for a length of time, and killing under such circumstances would be deliberate and premeditated.
[5, 6] Murder of the second degree is where the crime is committed with implied malice; that is, where the malice is not express, as in murder of the first degree, but is an inference or conclusion of law from facts actually proved. It is where there is no deliberate mind or formed design to take life, but where the killing was done without justification or excuse, and without provocation, or without sufficient provocation to reduce the offense to manslaughter. For example, where the killing was committed without design and premeditation, but under the influence of á wicked and depraved heart, or with a cruel and reckless disregard of human life, the law implies malice.
[7] A police officer of the City of Wilmington is a peace officer of this state, and it is well settled that a peace officer such as a county constable or city policeman may arrest a person without a warrant for an offense committed in the presence and view of such officer, for which he would have" a right to make the arrest with a warrant if committed out of his presence.
[8] When a party resists an officer who is making a lawful arrest and slays the officer in unlawful defense or resistance, it is murder, and if done with express malice aforethought, it is murder of the first degree.
[9] With regard to a known public officer it is not necessary for him to state his character and authority before making the arrest. The laying of hands on the- defendant is an arrest. Every one is bound to know the character of an officer who is acting lawfully within his proper jurisdiction, arid every citizen is bound to submit peaceably to such officer.
[10] If the officer in making a lawful arrest be resisted he may use such force as the circumstances reasonably require, in *331order to make the arrest, to prevent an escape, or for the purpose of protecting himself from bodily harm.
[11] If the prisoner unlawfully shot officer Sharpless at the time that officer was attempting to effect a lawful arrest, then such shooting constituted a felony, and, if committed in the presence of Tierney, it justified Tierney in attempting to arrest the prisoner; and Tierney was justified in using such force as was necessary to secure and detain the offender, overcome his resistance and prevent his escape.
In considering the evidence with a view to determine whether the prisoner, is guilty of murder of the first degree, you must be guided by the legal definitions and nature of these two degrees of murder, and bear in mind the distinction between malice express and malice implied, as these have been explained to you.
[12] Now, gentlemen of the jury, we have no further instructions to give you except to say, as we usually say in a criminal case, that in order to convict the prisoner the state must prove his guilt beyond a reasonable doubt. If, after carefully and conscientiously considering and weighing all the evidence in the case, you should entertain a reasonable doubt of the prisoner’s guilt, that doubt must inure to his benefit, and your verdict should be not guilty. But such a doubt must not be a mere fanciful, vague or speculative doubt, but a reasonable, substantial doubt, remaining in your minds after a careful consideration of all the evidence, and such a doubt as reasonable, fair-minded and conscientious men would feel constrained to entertain under all the facts and circumstances of the case.
Under this indictment, you may find the prisoner guilty in manner and form as he stands indicted—that is, guilty of murder in the first degree—or guilty of murder in the second degree, as in your judgment the evidence shall warrant.
Verdict, guilty of murder in the first degree.
Whereupon counsel for the prisoner moved for a new trial and in arrest of judgment. The prisoner was remanded until Friday, the twenty-fifth of March. On that day the motion was *332abandoned, and the Attorney General moved for sentence. Thereupon the court, by Pennewill, C. J., said:
Peter Krakus, alias Peter Melba, stand up.
Peter Krakus, alias Peter Melba, you were indicted by the grand jury of this county for murder of the first degree.
Upon that indictment you had a fair and impartial trial. Your counsel with great fidelity and ability, presented to the court and jury every fact and argument which in his judgment were available for your defense. The jury, nevertheless, rendered a verdict of guilty; and it therefore becomes the solemn duty of this court to pronounce the sentence of the law upon you for the commission of the heinous crime for which you were indicted.
Have you anything to say why the court should not now pronounce the sentence of the law upon you?
The Prisoner: I have nothing to say.
Pennewill, C. J.:—The duty the court must now perform is most painful and distressing, but it is a duty that is imposed by the law, and we cannot avoid it.
The sentence of the law, as considered by the court, is that you, Peter Krakus, alias Peter Melba, be now taken from the bar of this court to the New Castle County Workhouse, the public prison of this county, the place from which you came, and be there safely and securely kept in custody until Friday, the fourteenth day of May, in the year of our Lord 1915, and on that day, between the hours of ten o’clock in the morning and three o’clock in the afternoon, you be taken to some convenient place of private execution within the precincts of said prison inclosure, and that you be then and there hanged by the neck until you be dead; and may God have'mercy on your soul.
You are now committed to the custody of the board of trustees of the New Castle County Workhouse until this sentence is carried into execution. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487299/ | Pbnnewill, C. J.:
[1] The statute unquestionably makes the wife in a criminal action against her husband a competent witness and makes her testimony competent testimony. It is unnecessary for us to decide now whether the wife might claim her privilege and decline to testify, but we are clearly of the *110opinion that the husband in such an action cannot, under a claim of privilege, prevent the wife from testifying. We therefore overrule the objection.
Mr. Layton:—! would like to have the witness asked if she would testify were she permitted to decline to testify.
Mr. Reinhardt:—I am not at all clear that she is entitled to decline.
Pennewill, C. J.:
Without deciding, either expressly or by implication, whether or not she might be compelled to testify against her husband, we will permit you to ask her whether she is willing to testify in this case against her husband.
The witness, among other questions, was asked:
“Q. Did anybody make you come or did you come of your own free will? A. My own free will. Q. You are here testifying because you are willing to testify against your husband in this case? A. Yes, sir."
The Attorney General thereupon proceeded with the examination.
Pennewill, C. J.,
after charging the jury upon the law as in State v. Prettyman, 6 Boyce, 452, 100 Atl. 477, said:
[2] It is the duty of the court to call your attention to a statute of this state (Laws 1917, c. 266) that was enacted and approved at the last session of the Legislature, and whch is in the following language:
“That in all cases where the penalty for crime prescribed by the laws of the state of Delaware is death, if the jury shall, at the time of rendering their verdict recommend the defendant to the mercy of the court, the court may, if it seems proper to do so, impose, the sentence of life imprisonment instead of death.”
This statute does not mean that the jury shall recommend the defendant to the mercy of the court in every case, but only where the facts and circumstances disclosed by the evidence warrant such recommendation.
Verdict, guilty in manner and form as indicted, with recommendation to the mercy of the court.
*111In imposing sentence the Chief Justice said:
Edward Jaroslowski, you have had a fair trial, and in your defense your counsel has done everything that could possibly have been done for you. But notwithstanding his efforts the jury found you guilty of murder in the first degree and in rendering their verdict recommended you to the mercy of the court. Because of such recommendation, and the testimony in the case, it seems proper to the court to impose the sentence of life imprisonment instead of death, by virtue of a statute of this state recently passed. The sentence of the court is, etc. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487300/ | Pennewill, C. J.,
after charging the jury upon the law of homicide as in State v. Russo, 1 Boyce, 538, 77 Atl. 743, and after calling theii attention to chapter 266, vol. 29, Laws of Delaware, as in State v. Jaroslowski, ante, 103 Atl. 657, further instructed the jury:
[1, 3] While the jury are the judges of the weight and value of the testimony, we may say that ordinarily positive testimony is of more value than mere negative testimony. For example, the testimony of a witness who swears that he saw the act committed is to be given more weight than the testimony of another witness who swears that he was present and did not see the commission of the act.
But circumstances may be shown which make such negative testimony strong affirmative evidence, and it is for the jury to say whether in the particular case such circumstances have been shown.
[4] Where there is conflict 'in the testimony, it is the duty of the jury to reconcile it, if they can, and, if they cannot do so, they should accept such testimony as they consider under the circumstances most worthy of credit, having regard to the intelligence or ignorance of the witnesses, their interest or bias, if any *381is shown, their bearing or manner in giving their testimony, their opportunity of observing and knowing the things respecting which they testified, and any other facts or circumstances that indicate the reliability or unreliability of their testimony.
Verdict, guilty of murder of the second degree. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487303/ | *545The state introduced evidence to show that Z., a police officer of the city of Wilmington, went to the home of the accused to arrest him. The accused resisted and in doing so pushed the officer back to a couch from which he picked up a revolver and shot the officer, killing him instantly.
[1] At the trial, G., also a policeman, was called by the state to testify to the searching of defendant’s house immediately after the murder and the finding therein of various articles of personal property, together with admissions of the accused that the articles were stolen by him. Counsel for the accused objected.
The state contended that evidence was admissible to show motive of accused in resisting arrest and killing the officer. Citing 6 Ency. on Evidence, 725, 732, 734; 2 Whart. Crim. Ev. 1689, § 899; 68 S. W. 267; 35 L. R. A. (N. S.) 530.
Counsel for accused replied that the circumstances of the killing having been shown by direct evidence, testimony of other crimes committed by the accused was inadmissible.
Pennewill, C. J.:
Upon the offer of the state to show that immediately after the shooting there was found in the house property which the accused admitted was stolen by him, we admit the testimony, as tending to show motive.
Pennewill, C. J.,
charging the jury:
The defendant is charged in the indictment with murder of the first degree.
• The state contends that the defendant 'on the thirteenth day of November of the present year between the hours of ten and eleven o’clock in themoming, at his home, 818 E.'Sixth Street in this city, without excuse, justification, or provocation, deliberately, designedly, and with express malice aforethought shot and killed a police officer, Thomas Zebley, while attempting to arrest the defendant for suspected felony.
[2] In this case, you may find the prisoner guilty of murder of the first degree, as charged in the indictment, guilty of murder of the second degree, guilty of manslaughter, or not guilty, as the evidence in your judgment shall warrant.
*546It becomes the duty of the court, therefore, to define for you, as clearly as we can, murder of the first degree, murder of the second degree, and manslaughter. (Which the court did as in State v. Russo, 1 Boyce, 538, 77 Atl. 743.)
[3] In every criminal case, it is incumbent on the state to prove the guilt of the prisoner beyond a reasonable doubt, and, if upon the whole case there remains in your minds a reasonable doubt of the guilt of the prisoner growing out of the evidence, or founded on the want of complete evidence, and such as would sway the mind of a reasonable man and prevent his judgment from coming to a satisfactory conclusion of his guilt, it is a principle of law that the prisoner shall have the benefit of such doubt.
But the defendant contends that in no event can he be convicted of a higher crime than manslaughter because, the deceased officer having no warrant authorizing him to take the defendant, he had no authority under the laws of this state to arrest him and was, therefore, a trespasser in the prisoner’s home; that the prisoner in such case had a right to resist the officer to the extent of preventing his arrest, and if in such resistance the officer was killed "without malice on the prisoner’s part he could be guilty of nothing more than manslaughter.
The state contends that the deceased officer had authority to arrest the defendant and exercised his authority in a lawful manner; that he was seeking to arrest the defendant for the commission of a felony, to "wit, larceny, which he had reasonable grounds to suspect the defendant had committed; that he entered the prisoner’s home in a peaceable manner, after knocking at the door and receiving no response, and used no more force in attempting to make the arrest than was reasonably necessary to accomplish his purpose; that the deceased was dressed in his policeman’s uniform and took the defendant by the arm saying, “I want you,” wdiich was equivalent to saying, “You are under arrest.”
In support of its contention, the state invokes the common law rule which makes it lawful for a peace officer to make an arrest for felony wdthout a warrant.
The state also cited a decision in this state in which the court said:
*547“A peace officer * * * has a right to arrest, even without warrant, a person concerned in a breach of the peace, or other crime; or when he has reasonable ground to suspect the party of such offense.” State v. Brown, 5 1lar. 505.
The court are of the opinion that the common law rule above stated which has been followed in some states without statutory enactment, and notably in Massachusetts, is the reasonable rule,. and the one that would most effectually protect peace officers, who are entitled to the greatest protection, and best conserve the public security.
The common law rule does not in our opinion conflict with any decision in this state when the facts of the cases are considered. The cases relied upon by the defendant to support his contention that the deceased officer had no authority to make the arrest because he had no warrant, are the following: State v. Oliver, 2 Houst. 605; State v. Ward, 5 Har. 496 (500); State v. List, Houst. Cr. Cas. 143.
In none of those cases was it shown that the person seeking to make the arrest had reasonable grounds to believe that a felony had been committed. In one of the cases the officer who had been deputized to make the arrest sought to deputize another, and the court held the authority bad.
In another the offense for which the person was sought to be arrested was not a felony, but a misdemeanor. In the third case, it was held that the lawful authority to arrest was exercised in an unlawful manner.
[4] So it appears that the question we are now discussing is distinctly presented to the court for the first time in this state; and we hold, that if an officer has reasonable cause to suspect that a person has committed a felony he has authority to arrest him without a warrant, and such person has no right to resist the officer if the latter uses no greater force than is reasonably necessary to make the arrest.
[5] And so we say, that if you believe from the testimony that officer Zebley at the time he attempted to make the arrest had good grounds to suspect that the defendant had committed a felony, he had authority to make the arrest and for that purpose *548had the right to enter the prisoner’s home, in a peaceable manner, and use so much force to effect the arrest as was reasonably necessary, and mider such circumstances the defendant had no right to resist the officer, provided he had good reason to know he was a peace officer and was given to understand he was under arrest.
Verdict guilty of murder of the first degree. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487304/ | Conrad, J.
(charging the jury). The indictment in this case charges that Ernest Thomas, the accused, on the 22d day of July of this year, in Blackbird hundred, in this county, violently and feloniously did make an assault upon one, Emma Talley, and her, the said Emma Talley, did violently, forcibly, and against her will, feloniously ravish and carnally know.
The offense charged is that which is commonly known as rape. Rape in this state has been held to be the carnal knowledge of a woman by force and against her will. Force, either actual or presumptive, is, in legal contemplation, an indispensable element of rape. Upon proof of carnal penetration of a female of the age of consent, that is, of seven years of age or more, the burden is upon the state to prove to the satisfaction of the jury, beyond a reasonable doubt, that the penetration was consummated by force and against the will of the prosecuting witness, or by putting her in fear and terror, before a conviction can be had. When the fact appears that sexual connection has been had against the consent of the woman, the law implies force.
It is the law of this state that, in prosecutions for rape, it is not necessary to prove the actual emissio seminis, in order to constitute a carnal knowledge. The carnal knowledge is deemed complete upon proof of an actual penetravit. But while it is not necessary under the law for the state to prove more than an actual penetravit, and while the slightest penetration is sufficient, yet it must be shown beyond a reasonable doubt that there was an actual penetration, at least proof of some degree of entrance of the male organ within the private parts of the female. And it must be also proved to the satisfaction of the jury beyond a reasonable doubt that such penetration was made without the consent of the female.
If you believe from the evidence in this case beyond a reasonable doubt that accused did have sexual intercourse with the prosecuting witness, and that such intercourse was had by force and against her will, your verdict should be guilty.
We feel it our duty to call to your attention two statutes respecting the jury’s recommendation of an accused to the mercy *105of the court." One statute applies to any defendant tried for a capital offense. There is another statute, almost identical in language, which applies specifically to a defendant tried for rape. We will read for your instruction both of these statutes, and wish you to listen very attentively.
The statute which applies to any defendant tried for a capital offense is found in volume 29, Laws of Delaware, chapter 266, page 856, approved March 15, A. D. 1917, and is as follows:
“ That in all cases where the penalty for crime prescribed by the laws of the state of Delaware is death, if the jury shall, at the time of rendering their verdict, recommend the defendant to the mercy of the court, the court may, if it seems proper to do so, impose the sentence of life imprisonment instead of death.”
The statute which applies specifically to a defendant tried for rape is found in volume 26, Laws of Delaware, chapter 270, page 733, amending chapter 127, Rev. Code 10893 (Code 1915, § 4706), and is as follows:
“ Whoever shall commit the crime of rape or who shall carnally know and abuse a female child under the age of seven years, shall be deemed guilty of felony and shall suffer death; provided, however, that if the jury, at the time of rendering their verdict, shall recommend the defendant to mercy, the Court may, if it seems proper to do so, impose the sentence of life imprisonment instead of death.”
You will no.te that the two are similar so far as the duty of the jury is concerned, and when reasonably construed mean that where the jury are satisfied of the prisoner’s guilt they may recommend him to the mercy of the court when the evidence convinces them that mercy ought to be shown the prisoner. They do not mean that there should be a recommendation in every case. If there is nothing shown in the case that appeals to the jury in the prisoner’s behalf and convinces them that he is entitled to mercy, there should be no recommendation.
Verdict, guilty. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487305/ | Pennewill, C. J.
(delivering the opinion of the court). Objection is made to the second and fourth counts on the ground that they aver only conclusions of law, and do not set out any facts that inform the defendant of what he must meet at the trial. Relying on the case of State v. Donovan, 5 Boyce, 40,90 Atl. 220, it is contended that it is not enough to charge the offense in the lan*120guage of the statute when the elements of the offense are not set out in the statute.
But it will 'bé observed that in the Donovan Case, the defendant was charged with an attempt to commit an offense, arid in the present case with a substantive and completed offense, viz. driving an automobile without giving reasonable warning. We think there is a well recognized distinction between the two cases in respect to the facts necessary to be averred in the indictment. After all, the essential requirement is that the indictment shall plainly and fully inform the defendant “of the nature and cause of the accusations against him,” and we are clear that such information is given by the second count. The offense charged is driving an automobile without giving reasonable warning, etc., and that is what the defendant must be prepared to meet; and that is what he can meet by showing that he gave some warning, any warning that the jury believe was reasonable under the circumstances.
In the Donoyan Case the court very properly said an averment that substantially follows the language of the statute is not sufficient when the elements of the crime are not supplied by the statute. In simply charging an attempt to commit a crime the elements of the crime are not disclosed, but in the present case every fact necessary to constitute the offense is set out in the statue and in the indictment which follows the statute. It certainly is not necessary that the indictment should negative any warning that might be given by the driver of an automobile. The averment that he gave no reasonable warning is in the opinion of the court sufficient because it clearly and sufficiently informs the defendant that he must be prepared to show that he gave some warning that was reasonable under the circumstances. The present case we think comes more within the principle declared in the case of State v. Burris, 6 Boyce, 169, 97 Atl. 428, in which the court said:
“But generally it is sufficient to charge an offense in the words of the statute, when the offense is thereby described with reasonable certainty."
In respect to the objection to the fourth count we are of the opinion that the language of the indictment, to wit, “ was engaged in the operation of a motor vehicle at an unreasonable rate *121of speed, to wit: at a rate of speed which then and there did endanger the safety of persons in or near said highway” (Rev. Code 1915, § 246), does not clearly and plainly inform the defendant of the nature and cause of the accusations against him.
To give the defendant the information needed to prepare his defense we think the indictment should show conditions existing at the time of the accident that made the speed at which the defendant was driving unreasonable.
The motion of the defendant is refused as to the second count, and sustained as to the fourth count. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487306/ | Pennewill, C. J.
(charging the jury). The defendant, John J. McIvor, is charged in this case with the crime of manslaughter. It is alleged in the indictment that on the 25th day of March of the present year, the defendant was running an automobile on the Philadelphia Pike in an unlawful m'anner; and while so doing, at a point on said pike north of Myrtle avenue, the automobile struck one Raymond B. Kelly and so injured him that he died a few days thereafter, as a result of his injuries. .
The defendant is charged with driving his automobile unlaw*126fully at the time of the accident: (1) Because he ran at a greater rate of speed than that allowed by the statute. (2) Because he was running on the wrong side of the road at and just before the accident. (3) Because he was driving his automobile at an unreasonable rate of speed without having regard to the traffic and so as to endanger the safety of any person or injure the property of any person on the highway.
The defendant denies that he was driving his automobile at the time of the accident at an unlawful rate-of speed or in an unlawful manner or so as to endanger the property or lives of others on the highway, and claims that the accident occurred because the deceased so suddenly appeared between the automobile and a large truck that was passing at the time that the defendant could not avoid hitting him although he applied his brakes and did all he could to stop his car in time. His defense, therefore, is that the accident occurred through no fault of his but entirely by misadventure.
The indictment being for manslaughter, it is necessary for us to define as clearly as we can what constitutes that crime.
Manslaughter is termed homicide, and is so called because it is the killing of a human being; but it is not malicious homicide, and is therefore unlike murder, which contains malice. It is the unlawful killing of another, without malice, express or implied, and is either voluntary or involuntary.
Voluntary manslaughter is where one kills another in the heat of blood, and usually occurs in fighting or under great provocation. This may be termed the common kind of manslaughter and is probably somewhat familiar to you.
Involuntary manslaughter, which is less common and perhaps less familiar, is where a person, in committing an unlawful act, not felonious or tending to great bodily harm, or in committing a lawful act without proper caution or requisite skill, unguardedly, or undesignedly kills another. Manslaughter may arise, as you see, from an unlawful act, or from a lawful act done without proper caution or skill.
So you can understand what the indictment means by the *127charge that the defendant is guilty of manslaughter because he killed Raymond B. Kelly while running his car at a greater rate of speed than the law allows, or in the performance of the lawful act of running his car within the speed limit, but without proper caution and care, and in disregard of the safety of others.
Homicide by misadventure is the accidental killing of another where the slayer is doing a lawful act unaccompanied by any criminally careless or reckless conduct.
It is unlawful in this state to run an automobile upon any public highway, where the buildings are of greater distance apart than 100 feet, at a greater rate of speed than 25 miles an hour, or, as stated in the indictment and the statute, at a greater rate of speed than a mile in 2 minutes and 24 seconds. It is also unlawful to run an automobile at a higher rate of speed than one mile in-5 minutes while passing another motor vehicle.
[-5] Such being the law, we say to you that any one who, while driving his automobile in violation of the statute, kills another by striking him with his car, is prima facie guilty of negligence, and such act will make the driver criminally liable and guilty of manslaughter, if it is clearly shown by the evidence that such unlawful speed was the cause of the death. But even though the jury should not be satisfied that the driver was running his car in violation of the statute, he would, nevertheless, be guilty of manslaughter if the death was caused by gross negligence on his part; that is, by a wanton, careless and reckless disregard of the rights and safety of others.
And we further instruct you that if the death resulted from the unlawful rate of speed, or from the careless and reckless driving of the car, the fact that the killing was unintentional on the defendant’s part does not excuse him. It makes no difference how unintentional it may have been, if the death was caused by the defendant’s criminal gross negligence. As we have already told you, involuntary manslaughter exists when a person, in committing an unlawful act, or in committing a lawful act without proper caution or skill, undesignedly kills another. That is the definition of manslaughter.
*128It is the duty o'f the driver of an automobile on the public highr way to run not only at a rate of speed permissible under the statute, but at such speed as an ordinarily prudent and careful man would use under the circumstances, having regard at all times to the danger of the situation and the probability of injuring others. The statute governing the speed of automobiles provides that nothing therein contained—
"shall permit any person to drive a motor vehicle at a greater speed than is reasonable, having regard to the traffic, or so as to endanger the safety of any person or injure the property of any person.”
We may say in this connection that a traveler on foot has the same right to the use of the public highway as an automobile or any other vehicle. But in using such highway all persons, pedestrians and drivers of automobiles alike, are bound to the exercise of reasonable care to prevent accidents, that is, such care as is reasonable and proper under the circumstances.
The defendant has asked the court to charge you that a person’s own memory of what he did or did not do, is ordinarily presumed to be more trustworthy than that of amere observer; that the actor (meaning the driver of an automobile) usually knows better than the observer what he did or did not do, and his testimony is generally entitled to greater weight on that account. We decline to so charge, but say to you that the jury must be the judges of the reliability of the witnesses and of the value and weight of their testimony, having regard, among other things, to their opportunities for seeing, knowing and remembering the things about which they testified.
Evidence of good character of the accused is to be taken in connection with all the other evidence and given such weight, under all the facts and circumstances, as the jury think it is entitled to.
In conclusion we say: If you believe from the testimony that at the time of the accident the defendant was driving his car in violation of the law, and that such act was the cause of the death of Raymond B. Kelly, your verdict should be guilty. And even if you do not believe that the defendant, at the time of the accident, was running his car in violation of the speed statute, but *129are satisfied that the death was caused by gross negligence on the part of the defendant, your verdict should be guilty. If you are not satisfied that the defendant is guilty of manslaughter, but believe that he is, under the evidence, guilty of an assault, you may find him guilty of an assault only.
In order to convict the prisoner, it is incumbent upon the state to prove beyond a reasonable doubt every material ingredient of the crime charged. If, therefore, after carefully considering all the evidence in the case, you should entertain a reasonable doubt of his guilt, your verdict should be not guilty,* * *
Verdict guilty. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487307/ | Mr. Reinhardt: One Lemuel Price is now in the dock, and I would move for his resentence under the judgment pronounced by this court on or about the 2d day of December, 1919.
*155Pennewill, C. J.: Lemuel Price, stand up. Lemuel Price, on the 1st and 2d days of December, 1919, you were tried in this court for the murder of Thomas L. Zebley, and the jury found you guilty of murder in the first degree. Whereupon, thereafter, you were sentened to be hanged on the 9th day of January, 1920. Before the date of execution arrived, you escaped from the workhouse of this county, and were recently recaptured. Have you anything now to say why execution should not be awarded on the judgment rendered against you at your said trial, and why you should not be now resentenced thereon?
The Prisoner: Well, I would say, I ask the court to have mercy. Of course, I didn’t kill this man intentionally at the time.
Pennewill, C. J.: Is that all you have to say?
The Prisoner: Yes, sir.
Pennewill, C. J.: The sentence of the law, as considered by the court, is that you, Lemuel Price, be now taken from the bar of this court to the New Castle County Workhouse, the public prison of this county, the place from which you came, to be there safely and securely kept in custody until Friday, the 3d day of December, in the year of our Lord 1920, and on that day, between the hours of 10 o’clock in the morning and 3 o’clock in the afternoon, you be taken to some convenient place of private execution within the precincts of said prison inclosure, and that you be then and there hanged by the neck until you be dead; and may God have mercy on your soul. You are now committed to the custody of the board of trustees of the New Castle County Workhouse until this sentence is carried into execution. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487308/ | Pennewill, C. J.,
charging the jury:
The indictment in this case being for manslaughter, it is necessary for us to define as clearly as we can what constitutes that crime.
Manslaughter is termed homicide and is so called because it is the killing of a human being; but it is not malicious homicide, and is, therefore, unlike murder, which contains malice. It is the unlawful killing of another, without malice, express or implied, and is either.voluntary or involuntary.
Voluntary manslaughter is where one kills another in the heat of blood, and usually occurs in fighting or under great provocation. This may be termed the common kind of manslaughter and is probably somewhat familiar to you.
Involuntary manslaughter, which is less common and perhaps less familiar, is where a person in committing an unlawful act, not felonious or tending to great bodily harm, or in committing a lawful act without proper caution or requisite skill, unguardedly or undesignedly kills another. Involuntary manslaughter may arise, as you see, from an unlawful act, or from á lawful act done without proper caution or skill. State v. Long, 7 Boyce 397, 108 Atl. 36.
So you can understand what the state means by the charge that the defendant is guilty of involuntary manslaughter because *236he killed Martha E. Vandyke in committing the unlawful act of running his car at a greater speed than the law allows, or in the performance of the lawful act of running his car within the speed limit, but without proper caution and care, and in disregard of the safety of others.
Homicide by misadventure is the accidental killing of another where the slayer is doing a lawful act unaccompanied by any criminally careless or reckless conduct.
We may say, and it is not disputed, that it is unlawful under the laws of this state for any person to operate or drive an automobile at a rate of speed exceeding one mile in four minutes on a public street or highway where the buildings are less than an average distance apart of one hundred feet; or at a speed exceeding one mile in eight minutes at the intersection of one public street or highway with another public street or highway. Laws of Delaware, vol. 28, p. 43. (a)
Such being the law, we say to you that any one who, while driving his automobile at a higher rate of speed than the law allows, kills another by striking him with his car, is prima facie guilty of negligence, and such act will make the driver criminally liable and guilty of manslaughter, if it is clearly shown by the evidence that such unlawful speed was the cause of the death. But even though the jury should not be satisfied that the driver was running his oar at a higher rate of speed than the law allows, he would, nevertheless, be guilty of manslaughter if the death was caused by gross negligence on his part, that is, by a wanton, careless and reckless disregard of the rights and safety of others.
The state claims that the defendant, at the time his automobile struck and caused the death of Martha E. Vandyke, at the intersection of Fourth street and Franklin street in this city, was running on Fourth street at a speed of at least twenty miles an hour, and at such a speed that the deceased, who had alighted from a trolley car and was crossing Fourth street, could not by the exercise of reasonable care on her part avoid being struck.
The defendant claims that he was, at the time, operating his *237automobile, in which there were three other young men, at a slow rate of speed, and with requisite care. He insists that he was keeping a proper lookout, that he blew his horn about a half block before he reached the crossing, that he had the car under control and did all that he could do, by applying his brakes, to stop his car before striking the deceased, whom he did not see until she came around the rear end of the trolley car and was in front of his automobile and not more than ten feet away; that another automobile that was standing at the curb near the crossing prevented him from operating his own automobile in such a manner that he might have avoided striking the deceased.
The state denies that the deceased walked around the rear end of the trolley car, and claims that she walked from the front door of the trolley car across the street to the place where she was struck; and also denies that there was at the time any automobile standing at the curb and near the crossing.
A traveller on foot has the same right to the use of a public highway as an automobile or other vehicle, but in using a public street or highway, pedestrians and drivers of automobiles alike are bound to the exercise of reasonable care to prevent accidents, that is, such care as is reasonable and proper under the circumstances. They are required to use their senses to avoid danger so far as can be in the exercise of due care.
Where a person has, by his driving of an automobile in a wilful, careless, reckless and negligent manner, or at an unlawful rate of speed, as defined by the statute, caused the death of another, the negligence of such decedent is held, under ordinary circumstances, not to relieve the driver from criminal liability for his act. The conduct of the deceased, however, is material in a prosecution of this nature, to the extent that it bears upon the negligence or wrongful conduct of the accused. Huddy on Automobiles (6th Ed.), § 765.
It is the duty of a pedestrian, in attempting to cross a public street, to use his senses and exercise due care in looking to see if an automobile is approaching. But the pedestrian has the right to assume that an approaching automobile will not be driven at an unlawful rate of speed, or in a grossly negligent manner; and *238if the unlawful speed or gross negligence of the driver is the direct cause of the accident, the failure of the pedestrian to correctly judge bis ability to safely cross the street will not excuse or exonerate the driver.
Homicide by misadventure is, as we have said, the accidental killing of another where the slayer is doing a lawful act. unaccompanied by any criminally careless or reckless conduct. If, therefore, the jury believe from the evidence that the defendant used reasonable care in operating his automobile, under the circumstances, and that the death of Martha E. Vandyke was caused by misadventure, and not because of the unlawful act or gross negligence of the defendant, he would be entitled to acquittal.
The testimony of the witnesses, its weight and effect, is entirely for the consideration of the jury, but we may say that the testimony of witnesses who testify without qualification that they heard a signal of warning given, is usually of much more weight than that of those who merely say they did not hear it.
In order to find a verdict of guilty, the jury must be satisfied that an unlawful rate of speed, or gross negligence on the part of the defendant in driving the automobile, was the direct cause of the death of Martha E. Vandyke.
In conclusion we say that if you believe from the testimony that at the time of the accident the defendant was driving his automobile in violation of the statute that governs the speed of automobiles, and that such act was the direct and proximate cause of the death of Martha E. Vandyke, your verdict should be guilty. And if you do not believe that the defendant, at the time of the accident, was running his automobile in violation of the speed statute, but are satisfied that her death was caused by gross negligence on the part of the defendant, your verdict should be guilty. If you. are not satisfied that the defendant is guilty of manslaughter, but believe that he is, under the evidence, guilty of an assault, you may find him guilty of an assault only.
(The court also charged as to the presumption of innocence and reasonable doubt.)
For a prosecution for manslaughter under Chap. 10, Vol. 33, Laws of Del., see State v. Dean, infra, p. 290 | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487315/ | Richards, J.,
in charging the jury, refused defendant’s request and stated that it was for them to determine whether the defendant was innocent or guilty, and, if guilty, whether he had committed murder in the first or second degree. State v. Boice, Houst. Cr. Cas. 355. He, also, defined murder of both degrees.
In connection with murder of the second degree, he instructed the jury that implied or constructive malice was an inference or conclusion of law from the facts found by the jury; and among these, the actual intention of the prisoner at the time of the commission of the fatal act became an important and essential fact, for though he may not have intended to do any great personal harm to the deceased, yet, if he was then engaged in the perpetration of some other felonious or unlawful act from which the law would imply malice, such as an attempt to rob him, he was guilty of murder in the second degree. State v. Boice, Houst. Cr. Cas. 355, *238359, 360; State v. Rhodes, Houst. Cr. Cas. 476, 498; State v. Thomas, Houst. Cr. Cas. 511, 524; State v. Brown, Houst. Cr. Cas. 539, 551; State v. Dugan, Houst. Cr. Cas. 563, 575; State v. Jones, 2 Penn. 573, 47 A. 1006; State v. Brinte & Jiner, 4 Penn. 551, 562, 58 A. 258; Greenleaf on Evidence, vol. 3, §§ 128, 145.
Note. For cases of mere unlawful or reckless acts, not felonious, resulting in death, and held to constitute manslaughter, see State v. Brown, I Houst. C. C. 539, 555, and other cases cited in the above opinion. State v. Goodley, 9 Houst. 484; State v. Reese, 2 Boyce 437, and State v. Naylor, 5 Boyce 99, were also manslaughter cases, but they all involved the statue making a person guilty of manslaughter if death resulted from the intentional pointing of a gun. See, also, State v. McIvor, 1 W. W. Harr. (31 Del.) 123; State v. Long, 7 Boyce 397; State v. Dean, 2 W. W. Harr. (32 Del.) 290; State v. Disalvo, 2 W. W. Harr. (32 Del.) 232, all of which were cases of death resulting from reckless or unlawful acts in the driving of automobiles. | 01-04-2023 | 11-18-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8487316/ | Pennewill, C. J.:
The issue is as to the mental condition of the defendant at the time he committed the act, and the question is whether it is permissible for him to show anything that brought about that condition.
Mr. Southerland: But this question is not permissible as the defendant, Higgins, has just testified that the last time this woman came to see him at his place of business was prior to May 16, 1926, and, therefore, at least a month before he committed the act for which he is being tried.
If evidence of this character can be produced under the plea of showing mental condition, it throws the doors wide open to collateral issues.
Pennewill, C. J.:
Considering the real issue in this case, and the evidence before us, we regard the testimony now sought to be introduced by the defendant, as indicated by the immediate question, as inadmissible. | 01-04-2023 | 11-18-2022 |
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