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https://www.courtlistener.com/api/rest/v3/opinions/8489009/ | FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION
ALEXANDER L. PASKAY, Chief Judge.
THIS IS a Chapter 11 business reorganization case and the above-captioned adversary proceeding was commenced by a complaint filed by Maas Brothers, Inc. (Maas) against Frank A. Vincent and Kitty A. Vincent, his wife, (Vincents), the Debtors involved in a Chapter 11 case. Maas first sought a modification of the automatic stay and in the alternative, an order prohibiting or conditioning the use of its collateral and to provide adequate protection if the Debt*551ors are permitted to retain and use the collateral. The Vincents filed their answer to the original complaint and their original Answer basically admitted most and denied some of the allegations set forth in the complaint.
On November 13, 1980, this Court granted leave to the Vincents to file a counterclaim who filed their counterclaim in due course. Count I of the counterclaim is based on an alleged breach of implied warranty of merchantability by Maas. The claim set forth in Count II is based on § 672.313 of the Florida Statutes and claims a breach of an express warranty. The Vin-cents prayed for a money judgment against Maas for the damages they allegedly suffered as the result of the breaches claimed by them in Count I and Count II of the counterclaim.
On December 1,1980, Maas filed a pleading entitled “Answer” rather than a reply which set forth certain defenses denoted as affirmative defenses, which are not, in fact, really affirmative defenses within the definition of that term.
On December 16,1980, this Court entered an Order, based on a stipulation of the parties, and vacated the automatic stay and permitted Maas to proceed to enforce its lien claim against its collateral unless the Vincents pay $978 to Maas within 30 days from the date of the entry of the order, which amount was found to be the value of the collateral. The Vincents failed to make this payment and Maas repossessed the collateral involved in this controversy, a wall-to-wall carpet and some draperies with the normal accessory items of the drapery.
The parties thereafter focused their attention to the issues raised by the counterclaim and continued their skirmishes during the discovery process. The matter was finally set down for final evidentiary hearing on the remaining issues at which time the following facts were established and which may be summarized as follows:
Sometime prior to June of 1978, an interi- or decorator, an employee of Maas, came to the home of the Vincents’ for the purpose of discussing a possible sale of carpet and draperies. During the initial discussion, the representative of Maas voiced her concern about the large windows and indicated that lining would be in order to minimize sun damage to the draperies. Shortly thereafter, the Vincents decided to make the purchase and bought the carpet which was on sale at that time, reduced from $21 to $15 per square yard.
The purchase price for the carpeting, installed, was $2,114.53 and the draperies, installed, were $3,186.35. Shortly after the installation of the carpeting, the Vincents complained to Maas that the padding was not proper. In response to the complaint, Maas promptly caused a removal of the improper padding and re-installed the carpet.
Although the Vincents claim that within 6 months they noticed fading of the drapes and matting of the carpet, especially in the traffic pattern, and they attempted to obtain satisfaction from Maas, this Court is satisfied that they had not lodged a complaint with Maas until April, 1980, or a year and a half after the purchase. The Vin-cents claim that they repeatedly called the interior decorator who sold them the carpeting and draperies, and she never returned their calls and the person who answered the telephone of the decorator, according to the Vincents, was a person by the name of Mrs. Hoskins. This Court is satisfied that during the years of 1978 up to the present, Maas did not have an employee by that name, either in its Customer Service Department or in its Credit Department. What is clear, however, is that during this time, Maas had an employee named Pat Haskins who was employed by the collection department and repeatedly attempted to collect an overdue balance on the Vincent account during the spring of 1980.
The record further reveals that the employees of Maas in the collection department contacted the Vincents as early as April of 1979, without being able to collect the outstanding balance. Between March of 1979 and April of 1980, there were numerous contacts between the Vincents and employees of Maas who tried to collect the *552past due account. At no time did the Vin-cents voice any complaint and mention any defect of the carpeting and draperies (Counter Df’s Exh. # 1). The evidence further reveals that all complaints received by Maas, as a matter of general company policy, are immediately referred to the Customer Service Department who sets up a file on the matter and promptly investigates the consumer’s complaint. There is no record in the Customer Service Department of any complaint of the Vincents until April of 1980, which was received through a telephone call from Pat Haskins, a collector of Maas.
There is no question that the carpeting is badly soiled and the drapes have sun streaks on them. According to the testimony of an expert, presented by Maas, the carpeting was not properly cared for and stated that if the detergent or shampoo used for cleaning was not completely removed, this would cause matting of the carpet. The expert also stated that if the carpet is cleaned by using soap and brush method, it would grind in the dirt rather than removing it from the carpet. It is without dispute that Mr. Vincent did rent cleaning equipment and used the soap and brush method. It is also without dispute that the Vincents have two dogs kept in the house and the carpeting, according to the expert’s visual inspection, shows extensive urine stains throughout the installation. It is admitted by the Vincents that they have had a difficult time with one of their dogs ever since a member of the family died to whom the dog was strongly attached. The evidence further reveals that the brown vertical streaks on the drapes were confined to the folds of the drapes which were exposed to the exterior of the residence.
No expert testimony was presented in support of the Debtor’s counterclaim. Neither was any evidence presented in support of the claim of a breach of express warranty based on Fla.Stat. § 672.313. For this reason, this Court directed a dismissal of the claim set forth in Count II.
This leaves for consideration the claim set forth in Count I of the counterclaim which is based on the breach of an implied warranty of merchantability of the carpeting and draperies.
Section 672.314 of the Florida Statutes makes every seller of goods who is a merchant with respect to such goods, an implied warrantor that the goods are merchantable unless excluded or modified. Chapter 672.314(2) defines the term “merchantability” and states that it includes an implied warranty that the goods are fit to use for their normal services or acceptable in the trade and are of fair average quality. To assert a cause of action for breach of implied warranty, the buyer must prove that there is an implied warranty; a breach of the warranty and damages resulting as a proximate cause of the breach. See, Burbage v. Atlantic Mobilehome Suppliers Corp., 21 N.C.App. 615, 205 S.E.2d 622 (1974); Dusenberg & King, Bender’s U.C.C. Service, Sales and Bulk Transfers, § 7.01[4]; Lucas v. Firestone Tire and Rubber Co., 458 F.2d 495 (5th Cir. 1972); McCarthy v. Florida Ladder Co., 295 So.2d 707 (Fla. 2d DCA 1974).
By virtue of an express provision of the UCC, as adopted in this State, Fla. Stat. § 672.607(4), the burden is on the buyer to establish any breach with respect to the goods accepted. While it is true that a buyer of goods may recover on a claim for breach of implied warranty by proving the breach through direct or circumstantial evidence and it is not necessary to produce evidence by a qualified expert, it is clear that the buyer has a burden to show that there are existing circumstances which tend to exclude all reasonable inferences except defectiveness. The damages which a buyer may recover if breach is established, are equal to the difference at the time and place of the acceptance of the goods between the actual value of the goods accepted and the value they would have had if they had been as warranted, less any proper deductions. Smart Chevrolet Co. v. Davis, 262 Ark. 500, 558 S.W.2d 147 (1977). Recovery would not be permitted where the difference in value had not been shown. For a similar result, see also Chaney v. General *553Motors Acceptance Corporation, 349 So.2d 519 (1977 Miss.). See also Curtis v. Fordham Chrysler Plymouth, Inc., 81 Misc.2d 566, 364 N.Y.S. 767 (Civ.Ct.1975); 67 Am. Jur.2d Sales, § 741.
Lastly, it is equally clear that the buyer who asserts a claim for breach of implied warranty must, within a reasonable time after he has discovered or should have discovered the breach, notify the seller of the breach, otherwise he is barred from any remedy. Fla.Stat. § 672.607(3)(a).
Considering the foregoing, it is evident that the Vincents have failed to establish their right to recovery. First, the Vin-cents failed to establish that the carpeting and draperies were not merchantable within the meaning of § 672.314 of the Florida Statutes. The only thing the Vincents established is that the carpeting was soiled and matted and some of the strands were untwisted. However, there is no evidence in this record to show that it was a manufacturing defect and was caused by any inherent defect in the carpet. Next as to the draperies, there is no evidence, except there are vertical streaks on the drapes, but no evidence to establish that it was caused by inherent defects in manufacturing or below standard quality of the fabric.
Most importantly, however, it is clear that the Vincents did not notify Maas within a reasonable time as required by Fla.Stat. § 672.607(3) and contrary to the contention, this Court concludes that there was no complaint lodged with Maas concerning the quality of the carpeting and draperies until a year and a half after the purchase and this is certainly not a reasonable time.
Lastly, this record is totally devoid of any evidence of damages suffered by the Vincents as the result of the alleged breach of warranty by Maas.
A separate final judgment will be entered in accordance with the foregoing. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489010/ | FINDINGS OF FACT AND CONCLUSIONS OF LAW
JOSEPH A. GASSEN, Bankruptcy Judge.
This adversary proceeding arises out of a $4.5 million secured loan made by plaintiff BarclaysAmerican/Business Credit, Inc. to co-defendant United Coal Resources (“UCR”) in September, 1979. The loan proceeds were used to pay part of a $12.5 million purchase price for certain assets owned by co-defendant Solomon & Teslo-vich (“S&T”). The remaining cash to close the transaction between UCR and S&T was presented in the form of a $5 million cash*561iers check issued by the Aeiola Bank and Trust Company, which instrument was subsequently dishonored. The legal issues arising out of said dishonor are the subject of the companion adversary proceeding (Adversary Case No. 80-0332-BKC-JAG) consolidated with this cause for purposes of trial only.
At trial, plaintiff presented judicial admissions and other evidence establishing that it has a duly perfected first priority security interest in all of the collateral described in plaintiffs loan and security agreement with UCR (the “collateral”). Plaintiff also offered uncontested evidence establishing that the net realizable value of the collateral only slightly exceeded the amount owing to plaintiff when this adversary proceeding was commenced. S&T has remained in possession of the collateral, and without contractual obligation to do so, S&T has made thirteen regular payments under UCR’s indebtedness to plaintiff. S&T has also apparently cooperated with plaintiff in permitting it to inspect the collateral and in insuring the collateral under a policy naming plaintiff as loss payee. However, the collateral is coal mining equipment and rolling stock which depreciates in value, and S&T stopped making payments after November, 1980.
UCR has neither assets to subject to a replacement lien nor cash flow to fund a plan of periodic payments, and accordingly, it had relied on the contention that plaintiff’s claim is adequately secured by its lien on the collateral. However, plaintiff has established that after consideration of selling expenses, the equity cushion in this case is minimal. This cushion is deteriorating as the collateral depreciates and the interest arrearages accumulate. Further, although S&T has cooperated with plaintiff thus far, it has not executed an agreement to maintain or insure the collateral and allow plaintiff to inspect the collateral and the results of its operations. Plaintiff is not receiving the benefit of its bargain with UCR in this situation. Therefore, continuing the automatic stay in this cause will entail some risk to plaintiff’s secured claim, as compared with an immediate liquidation.
S&T has proposed in its briefs and during oral argument to make periodic payments to plaintiff, and to agree to the terms of plaintiff’s loan documents with respect to maintaining and insuring and permitting inspection of the collateral and its business records.
The court finds that plaintiff’s secured claim will be adequately protected for ninety days if it receives the payments and benefits set forth in paragraph 5 of the separate Final Judgment entered this date. The court will not modify the automatic stay for ninety days except as otherwise provided in the Final Judgment.
The court will retain jurisdiction over this cause to enforce its Judgment and to consider any further applications for adequate protection from plaintiff. A separate Final Judgment as required by B.R. 921(a) is being entered this date.
FINAL JUDGMENT
This cause having come before the court at trial and the court having been fully apprised in the premises, it is hereby
ORDERED and ADJUDGED that:
1. The court’s Findings of Fact and Conclusions of Law of even date herewith are incorporated by reference into this Final Judgment.
2. Plaintiff has a duly perfected first priority security interest in all of the collateral (the “collateral”) described in its general loan and security agreement with United Coal Resources (Plaintiff’s Exhibit No. 4).
3. Defendants have no counterclaims, off-sets, or valid defenses with respect to plaintiff’s secured claim.
4. Plaintiff will not be adequately protected unless it receives the periodic payments set forth in paragraph 5(a) and compliance by Solomon and Teslovich with the provisions of paragraph 5(b) of this Final Judgment.
5. The automatic stay provided under Bankruptcy Code § 362 shall be vacated as against plaintiff unless (a) plaintiff receives *562payments of $175,000, $175,000 and $175,000 on April 10, May 1, and June 1, 1981, respectively, each of which payments shall be applied as follows: $76,250 to principal payments due April, May and June, 1981 and the balance first to accrued interest and then to arrearages in principal payments; and (b) Solomon & Teslovich complies with the loan requirements that borrower maintain and insure the collateral, accounts to plaintiff for the proceeds of any sale thereof, and permits plaintiff to inspect the collateral and its business records relating thereto.
6. If either (i) Solomon & Teslovich fails to comply with the provisions of paragraph 5(b) of this Final Judgment, or (ii) any payment required to be made under paragraph 5(a) of this Final Judgment is not received by plaintiff within ten days after the same is due, then plaintiff may avail itself of the default remedies described in paragraph 8 hereof.
7. United Coal Resources is directed to issue a notice to its creditors forthwith, stating that Solomon & Teslovich will be granted a lien in the assets conveyed by Solomon & Teslovich to United Coal Resources, junior only to the lien of plaintiff, BarclaysAmerican/Busines Credit, Inc. in said assets. The lien granted Solomon & Teslovich shall attach to all such assets heretofore conveyed by Solomon & Teslo-vich to United Coal Resources, whether or not pledged to plaintiff, BarclaysAmeri-can/Business Credit, Inc. Such lien shall secure any and all payments made by Solomon and Teslovich under paragraph 5 of this Final- Judgment. If, and only if, a party in interest shall object in writing filed and served on or before April 10, 1981 which shall be specified in the aforesaid notice to creditors, to the granting of such lien to Solomon & Teslovich, then and in that event, a hearing shall be held before this court on Thursday, April 16, 1981, at 2:00 p. m., in Courtroom No. 1410, Federal Building, 51 S.W. First Avenue, Miami, Florida, at which time the Court shall hear and consider any such objection.
8. In the event of noncompliance with the terms of this Final Judgment, plaintiff may submit to the court for entry an order to show cause why the automatic stay should not be modified forthwith or the collateral expeditiously sold.
9. The Court hereby retains jurisdiction over the parties and the subject matter of this action to enforce the terms of this Final Judgment, and to consider any further applications for ádequate protection made by plaintiff. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489013/ | FINDINGS AND CONCLUSIONS
JOSEPH A. GASSEN, Bankruptcy Judge.
This adversary proceeding was tried on the complaint of Florida National Bank of Miami to determine the validity, priority and amount of lien and for turnover of funds, (C.P. No. 1) and on the trustee’s answer (C.P. No. 4). The debtor-corporation operated a nursing home and plaintiff seeks funds received by the trustee from the State of Florida, Department of Health and Rehabilitative Services, as reimbursement for services performed prior to the filing of the bankruptcy, claiming a security interest in those funds.
. The United States intervened, filing its Answer and Complaint in Intervention asserting the priority of certain tax liens over the security interest of Florida National Bank (C.P. No. 16). At trial the government conceded that its tax liens would be subordinate to the bank’s security interest if it were valid and perfected, but joined the trustee in contesting the complaint. The amounts of the tax liens with their respective dates of tax assessments as set forth on Intervenor’s Exhibits Nos. 1 and 2, admitted without objection and uncontro-verted, are:
3/17/80 $ 1,888.31
3/17/80 $ 28,152.72
12/10/79 $ 276.60
6/11/80 $ 37,752.70
6/11/80 $ 45,618.87
Total $ 113,689.20
In its operation of the nursing home, the debtor entered into a loan agreement with the bank on January 13, 1978, obtaining a $100,000 line of credit (Plaintiff’s Exhibit No. 1). At that time a security agreement was éxecuted, giving the bank a security interest in existing and future accounts receivable and contract rights, and all proceeds thereof (Plaintiff’s Exhibit No. 4). A UCC financing statement was filed on January 20,1978 (Plaintiff’s Composite Exhibit No. 5). The financing statement covered “accounts receivable and contract rights now existing or hereafter acquired” but the proceeds coverage box was not checked off. On March 30, 1978, the line of credit under the same security agreement and financing statement was increased to $175,000 (Plaintiff’s Exhibit No. 2). A series of advances and repayments were made over a period of approximately two and one-half years, with the last advance having been made by the bank on August 7,1979 (Plaintiff’s Composite Exhibit No. 7).
On June 30,1980, plaintiff and two other creditors filed an involuntary bankruptcy petition against the debtor. An interim trustee was appointed on July 2, 1980, and the order for relief was entered on August 25, 1980. The outstanding balance of the debt on June 30, 1980 was $130,000.
After the involuntary petition was filed, the nursing home continued to be operated by the trustee for a short period of time before termination of his operation of the home. In July and August, 1980, the trustee received checks from the State of Florida, Department of Health and Rehabilitative Services, as reimbursement for services provided to Medicaid patients both before and after the petition was filed. However, services of a value in excess of $130,000 had been rendered prior to the filing of the petition, and accounts receivable for that amount existed on the date of filing. The bank had never required that the debtor deposit its Medicaid reimbursements in a separate cash collateral account, and the trustee deposited the funds he received in a general operating account for the nursing home.
During this proceeding, the plaintiff bank elected to have $30,000 of its debt in the principal amount of $130,000 treated as unsecured. The parties stipulated that an *582interest computation on the $100,000 and plaintiffs application for attorneys’ fees, would be jointly submitted after trial. In this action, plaintiff asserts that its security interest covers all Medicaid reimbursement funds received by the trustee for services rendered prior to the filing of the petition, and it seeks a return of those funds to the extent of its debt, including the principal amount, interest and attorneys’ fees.
Defendant asserts 11 U.S.C. § 552 as a defense to the validity of plaintiff’s security interest as applied to the Medicaid funds received by the trustee. Section 552 provides, in pertinent part:
(a) Except as provided in subsection (b) of this section, property acquired by the estate or by the debtor after the commencement of the case is not subject to any lien resulting from any security agreement entered into by the debtor before the commencement of the case.
(b) ... if the debtor and a secured party enter into a security agreement before the commencement, of the case and if the security interest created by such security agreement extends to property of the debtor acquired before the commencement of the case and to proceeds ... of such property, then such security interest extends to such proceeds ... acquired by the estate after the commencement of the case to the extent provided by such security agreement and by applicable nonbankruptcy law except to the extent that the court, after notice and a hearing and based on the equities of the case, orders otherwise.
Article 9 of the Uniform Commercial Code permits creditors to take security interests in “after-acquired property”, that is, property acquired by the debtor after creation of the debt which is secured by such collateral. The legislative history of the Bankruptcy Code demonstrates that the purpose of § 552 is to prevent the attachment, under such a clause, of a creditor’s pre-petition security interest to entirely new property acquired by the estate or by the debtor in bankruptcy. (House Report No. 95-595, 95th Cong., 1st Sess. (1977) 376-377; Senate Report No. 95-989, 95th Cong., 2d Sess. (1978) 91, U.S.Code Cong. & Admin.News 1978, p. 5787.) Had the bank, as permitted by its security agreement, asserted a security interest in accounts receivable which accrued while the trustee operated the nursing home, those accounts would have fallen squarely within the intended Congressional prohibition of § 522(a).
“Proceeds” under the UCC are a particular type of collateral, and are not to be confused with after-acquired property. The distinction is preserved by § 552(b), which excepts proceeds from the effect of § 552(a). Subsection (b) is consistent with the overall treatment of security interests under the Bankruptcy Code. It essentially retains the priorities in proceeds as set forth in the UCC, even for proceeds which were received after commencement of the case.1
At the time the debtor and Florida National Bank executed their security agreement the term “proceeds” was defined to include “whatever is received when collateral or proceeds is sold, exchanged, collected or otherwise disposed of”. Fla.Stats. § 679.306(1) (1978) (emphasis added). The checks received by the trustee for Medicaid reimbursement were in collection of the bank’s accounts receivable collateral, and were thus proceeds, and subject to § 522(b).2 Barnett Bank of Pensacola v. Fletcher, 290 So.2d 533 (Fla. 1st D.C.A. 1974).
*583The parties do not dispute that under applicable nonbankruptcy law, (as mandated by § 552(b)) a valid, but unperfected, security interest is subordinate to the rights of a trustee or a lien creditor in the collateral. Fla.Stats. § 679.301. The issue here, then, is whether the bank's security interest in these proceeds was perfected.3 The court holds that under Florida law the security interest was not perfected.
Fla.Stats. § 679.306(3) governs perfection for proceeds. Under the 1962 version of the Uniform Commercial Code, if a security interest in the original collateral was properly perfected, a secured creditor nevertheless was required to file a financing statement specifically covering proceeds, or perfect its security interest in proceeds within ten days of their receipt by the debtor. Under the 1972 version, where a secured creditor has perfected its security interest in the original collateral the proceeds are automatically perfected, with certain exceptions not applicable here. The Florida National Bank had perfected its security interest in the accounts receivable by filing a financing statement, but did not file a financing statement covering proceeds, and did not perfect its security interest in proceeds within ten days of their receipt by the trustee. Thus, if the 1962 version is applicable, the bank’s security interest in the Medicaid funds is not perfected, while its security interest is perfected if the 1972 draft applies.
Florida had adopted the 1962 Uniform Commercial Code, and that version of Fla. Stats. § 679.306(3) was in effect at the time the security agreement was entered into between the debtor and the bank. In 1979 the Florida legislature made amendments to the Florida UCC, essentially adopting the 1972 uniform act. The effective date of the Florida amendments was January 1, 1980. All payments and disbursements under the loan secured by the accounts receivable occurred prior to January 1, 1980; only the petition in bankruptcy and this adversary proceeding to détermine validity and priority of the bank’s lien occurred after that date.
Along with the 1972 substantive amendments, Florida adopted most of the UCC transition provisions set forth in Chapter 11 of the official draft.4 The most comprehensive transition provision is Fla.Stats. § 680.-101(2), corresponding to the uniform act § 11-103. It provides:
Transactions validly entered into ... before the effective date of this act ... and the rights, duties, and interests flowing from such transactions remain valid after [the effective date] and may be terminated, completed, consummated, or enforced as required or permitted by this act....
The effect of this transition provision is distinctly different from the prior version, (applicable to the transition from pre-UCC to UCC law,) which provided that the earlier law would generally control. However, on the face of this section, it is not apparent that it operates to make the new law applicable for § 679.306(3). Other transition sections deal more particularly with security interests which were perfected under the old statute, but would not be perfected under the new, but no section deals with the reverse situation, as created by the amendment to § 679.306(3).
There is no accessible legislative report or commentary to assist in interpreting or gauging the breadth of § 680.101(2), and the rules of UCC construction of § 671.102 are not particularly helpful in interpreting this transition provision. Examining the general terms used in the section, it first appears that the bank’s action is one to “enforce” its rights, and is thus covered by the section. But the section preliminarily *584refers to transactions “validly entered into” and the “rights, duties, and interests flowing from such transactions”. Since the bank’s security interest in proceeds was not perfected under the old law, no rights arose for it to enforce under the new one. The amendment to § 679.306(3) effects great changes in the substantive rights of the parties, and such changes should not be merely inferred. But of most significance is the fact that § 11-104 of the uniform act, covering this precise situation, was not enacted by the Florida legislature. Section 11-104 provides:
A security interest for the perfection of which filing or the taking of possession was required under [old UCC] and which attached prior to the effective date of [new UCC] but was not perfected shall be deemed perfected on the effective date of [new UCC] if [new UCC] permits perfection without filing or authorizes filing in the office or offices where a prior ineffective filing was made.
This is the only provision of UCC Chapter 11 which was entirely omitted from the Florida amendments to Chapter 680, and it must therefore be assumed that it was the intention of the legislature not to automatically perfect (upon the effective date of the amendments) unperfected pre-amendment security interests in proceeds.
It should be noted that Fla.Stats. § 680.-111, (UCC § 11-108) creates a presumption that the amendments to the UCC are merely declaratory of prior law unless a change in law has clearly been made. A comment in the Sponsors’ Notes to the 1979 amendment of § 679.306 raises a false question of whether the amendment might not have been merely declaratory. The pertinent paragraph states:
Subsection (3) is amended to clarify that a secured party’s right to proceeds is automatic unless otherwise agreed. There are certain limitations, however. Specifically, where the filing as to the original collateral is an inappropriate means of perfection as to the proceeds or is made at a place that is inappropriate as to the proceeds, perfection as to the original collateral perfects an interest in the proceeds for only 10 days. Cross-hatching the “proceeds” box on UCC-l’s will not, therefore, be dispositive of the secured party’s rights in the proceeds.
If the phrase “right to proceeds” in this Note refers to perfection rather than creation of a security interest, as it appears to do, the Note is simply wrong. The amendment to § 679.306(3) '’ould not “clarify” that a secured party’s rignt to proceeds is “automatic”. Whatever the sponsor’s belief as to the state of Florida law in 1979, the section to be amended showed on its face that a secured party’s right to proceeds was not automatic. Case law in Florida, as well as other states, has so held. Barnett Bank of Tallahassee v. Applegate, 379 So.2d 1284 (Fla. 1st D.C.A. 1979). See also the reporter’s notes to the official text of the UCC, demonstrating such to be the intention of the drafters of the uniform act. The underlying purpose of making the law uniform among the various jurisdictions, codified by Florida in Fla.Stats. § 671.102(2)(c), also supports the position that perfection of proceeds under the prior Florida law was not automatic beyond ten days.
The language and tone of the quoted section of the Florida Sponsor’s Note echoes a reporter’s note to the uniform act which shows reasons for each change made by the drafters of the 1972 version of the UCC. The uniform act comment, however, refers to creation of a security interest, not perfection. As set forth in the appendix to the official text of the 1972 Uniform Commercial Code it states:
Heretofore an apparent inconsistency and ambiguity has existed between the last sentence of Section 9-203(l)(b) of the 1962 Code, which indicated that a claim to proceeds had to be an express term of a security agreement, and Section 9-306(2), which indicated that a right to proceeds was automatic without reference to a term of a security agreement. This ambiguity has been clarified in favor of an automatic right to proceeds, on the theory that this is the intent of the parties, unless otherwise agreed.
*585Confusion may have arisen because of the ambiguity of the phrase “right to proceeds”. The phrase could refer to the right of a secured creditor vis-a-vis the debtor, (creation of a security interest,) as used in the official comment, or to the right of a secured creditor vis-a-vis other lien creditors, {perfection and priority of the security interest,) as apparently intended in the Florida Sponsor’s Note. In the Florida UCC as well as the 1962 uniform version there was indeed an apparent inconsistency regarding the creation of a security interest in proceeds which was “clarified” by the amendments adopted in 1979. There was no lack of clarity regarding perfection under the prior Florida law, however. The bank here, of course, had identified proceeds as collateral in its security agreement, and had failed only to include proceeds on the financing statement, as was necessary for perfection prior to the amendments.
Thus, the 1979 amendment to § 679.306(3) was not merely declaratory of prior law. Under the Florida statutes as they existed at the time of the transactions in this case the bank’s security interest in the payments received by the trustee from the State of Florida was not perfected, and the new provisions, according to which that security interest would be perfected, are not applicable. The bank therefore lacks priority, and there is no basis for the trustee to turn over to the bank those funds. The bank will be treated as an unsecured creditor for the full amount of its claim.
As required by Bankruptcy Rule 921(a), a separate Judgment incorporating these Findings and Conclusions is being entered this date.
. Subsection 552(b), does provide that the court, “based on the equities of the case”, may order “otherwise”, but the legislative history indicates that this is to make provision for an increase in the value of collateral created by the estate at the estate’s expense, and which thus depletes the fund available for general unsecured creditors.
. House Report No. 95-595 states that “proceeds” in § 552 of the Bankruptcy Code is not limited to the UCC definition of proceeds but includes any property into which property subject to the security interest is converted. However, the checks received by the trustee here do fall within the narrower UCC definition.
. Fla.Stats. § 679.306(4) limits the extent of an otherwise perfected security interest in proceeds, following insolvency. Because of the conclusion reached by this court on the preliminary issue of perfection, it is not necessary to apply § 679.306(4).
. Provisions for the transition from prior state law to the UCC were included in Chapter 10 of the uniform act. Those provisions were adopted in Fla.Stats., Chapter 680. The UCC Chapter 11 provisions were then added to Chapter 680, and prior inconsistent sections were either repealed or amended. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489014/ | MEMORANDUM DECISION
PEDER K. ECKER, Bankruptcy Judge.
Vernon Dean Lind and Gloria Jean Lind, hereinafter Debtors, filed a joint petition for an order for relief in a business Chapter 13 bankruptcy. A hearing was commenced on confirmation of the proposed Chapter 13 Plan. Rick A. Yarnall, hereinafter Trustee, objected to confirmation of the Plan pursuant to 11 U.S.C. § 1325(a)(4). 11 U.S.C. § 1325(a)(4) provides:
“(a) The court shall confirm a plan if— (4) the value, as of the effective date of the plan, of property to be distributed under the plan on account of cash allowed unsecured claim is not less than the amount that would be paid on such claim if the estate of the debtor were liquidated under chapter 7 of this title on such date.”
Debtors’ Chapter 13 Plan provides no dividend to unsecured creditors. The Trustee contends that a liquidation of Debtors’ assets would provide a dividend to unsecured creditors in a Chapter 7 bankruptcy. In response, James A. Craig, hereinafter Debtors’ Attorney, claimed that creditors would not receive a dividend in a Chapter 7 liquidation because the majority of Debtors’ assets are exempt under South Dakota exemption statutes. At this time the confirmation hearing was continued to enable Debtors’ Attorney to file with this Bankruptcy Court a Modified Chapter 13 Plan and Chapter 7 Schedules B-2 and B-4. Schedule B-2 is a list of what Debtors’ personal property would be in a Chapter 7 bankruptcy. Schedule B-4 is a list of property claimed as exempt in a Chapter 7 bankruptcy.
The Trustee filed an “Objection to Claimed Exempt Property”. Debtors’ Attorney scheduled a hearing with this Bankruptcy Court to resolve the Trustee’s objections to claimed exempt property. This Bankruptcy Court held a hearing on the Trustee’s objections to Debtors’ claimed exempt property. At the hearing this Bankruptcy Court heard oral arguments and received evidence from Counsel. At the conclusion of the hearing, this Bankruptcy Court took the matter under advisement.
FINDINGS OF FACT
Debtors are husband and wife and have filed their Chapter 13 petitions jointly. Mr. Lind is a self-employed drywaller. Mrs. Lind operates a foster care home for elderly women. Testimony suggested that four elderly ladies are dependent upon Mrs. Lind for their care. The dispute between the parties concerns Debtors’-personal property used at the foster care home. Debtors’ Schedule B-4 lists household furnishings and a 1973 Chevy van as being used in the services at the foster care home. The household furniture consists of the usual furnishings for a living room, three bedrooms, dining room, kitchen and a basement laundry.
The appraised fair market value of the personal property used in the foster care home is unsettled. Debtors’ Exhibit # 1 is an appraisal by Terry Wingler of Wingler’s Auctioneering Co. This appraisal concludes that the fair market value of the household furnishings is $3,314.50. Mr. Wingler’s appraisal does not include the 1973 Chevy van.
In Debtors’ Schedule B-4 they list the value of the claimed exempt household furnishings to be $2,172.50. The value of the 1973 Chevy van is scheduled by Debtors at $800.00.
11 U.S.C. § 522(b) provides that a debtor may exempt from property of the estate *613property that is specified under 11 U.S.C. § 522(d) unless the state law of the debtor’s domicile provides otherwise. As of July 1, 1980, South Dakota residents are not entitled to the federal exemptions provided in 11 U.S.C. § 522(d) pursuant to S.D.C.L. 43-45-13. This statute provides:
“In accordance with the provisions of § 522(b) of the Bankruptcy Code of 1978 (11 U.S.C. § 522(b)), residents of this state are not entitled to the federal exemptions provided in § 522(d) of the Bankruptcy Code of 1978 (11 U.S.C. § 522(d)), exemptions which this state specifically does not authorize. Nothing herein affects the exemptions given to residents of this state by the state Constitution and the South Dakota statutes.”
Debtors are claiming the household furnishings of the foster care home as exempt pursuant to S.D.C.L. 43-15-5(4).
S.D.C.L. 43-45-5 is an alternative property exemption statute. S.D.C.L. 43-45-5 provides in part, as is pertinent to this case, that:
“Instead of the exemptions of personal property granted in § 43-45-4, the debt- or, if the head of a family, may select and choose the following property, which shall then be exempt, namely: ... (4) The tools and implements of any mechanic, whether a minor or of age, used and kept for the purpose of carrying on his trade or business, and in addition thereto, stock in trade not exceeding two hundred dollars in value;”.
DEBTORS’ ARGUMENTS
The crux of the Debtors’ argument is that this Bankruptcy Court take a liberal construction of South Dakota’s alternative exemption statute. Debtors assert that S.D.C.L. 2-14-6 and 2-14-12 are authority for a liberal construction. S.D.C.L. 2-14-6 provides:
“Words used in the singular number include the plural, and the plural, the singular except where a contrary intention plainly appears.”
S.D.C.L. 2 — 14—12 provides:
“The rule of the common law that statutes in derogation thereof are to be strictly construed has no application to the code of laws enacted by S.D.C.L. 2-16-13. Such code establishes the law of this state respecting the subjects to which it relates and its provisions and all proceedings under it are to be liberally construed with a view to effect its objects and to promote justice.”
As further authority, Debtors claim that South Dakota’s Supreme Court has applied this liberal rule of construction to the Homestead Act in the case of Kingman v. O’Callaghan (1894) 4 S.D. 628, 57 N.W. 912.
Debtors’ request for a liberal construction of S.D.C.L. 43-45-5 is three-fold. The first request of this Bankruptcy Court is that it construe the word “mechanic” in the plural so as to give effect to the word “any” immediately preceding the word. This interpretation would allow the head of a family to decide whether a family will claim the additional property exemptions provided by S.D.C.L. 43-45-4 or the alternative property exemptions provided by S.D.C.L. 43-45-5. Once that decision has been made, each “mechanic” in the family would be entitled to claim their tools as exempt.
The second request of Debtors is that this Bankruptcy Court construe the word “mechanic” to include Mrs. Lind’s occupation, elderly care services. Debtors refer this Bankruptcy Court to Webster’s New World Dictionary, Second College Edition, for a definition of “mechanic”. Webster’s defines “mechanic” as “2. A manual laborer.” Debtors maintain that many in today’s “women’s movement” would assert that the tasks of clothing, feeding and caring for four elderly ladies involved every bit as much “manual labor” as is involved in any other “mechanic’s” duties.
Debtors’ third request is that this Bankruptcy Court liberally construe S.D.C.L. 43-45-5 as it deals with the word “dollars”. Debtors urge this Bankruptcy Court to take judicial notice that S.D.C.L. 43-45-5 was enacted by our legislature in 1939, some 41 years ago. Debtors maintain that the 1939 alternative property exemptions as provid*614ed by statute have deteriorated due to inflation and poor economic conditions. Debtors contend their Exhibit # 3, an October, 1980, Consumer Price Index, illustrates the value of the dollar has declined at a steady rate. Debtors claim it can be concluded from the 1980 Consumer Price Index that the $200.00 total exemption should now be valued at $1,050.00.
In summary, Debtors argue that the effect of inflation on our exemption statutes inhibits the purpose of bankruptcy, which is to give a debtor a “fresh start” and a new economic life.
TRUSTEE’S ARGUMENTS
The Trustee objects to Debtors’ claimed exempt property for the following reasons:
1.) Because S.D.C.L. 43-45-5 provides: “the debtor, if the head of a family,” may choose the alternative property exemptions. The Trustee contends that Mrs. Lind chose the alternative property exemptions for her business and Mr. Lind for his.
2.) Because the value of the claimed exempt property exceeds the $200.00 limitation of S.D.C.L. 43-45-5(4).
3.) Because S.D.C.L. 43-45-5(4) provides only one mechanic may claim the alternative property exemption.
4.) Because caring for elderly women in a foster care home does not fit the definition of “mechanic”.
5.) Because household furnishings in a foster care home does not fit the definition of “The tools and implements of any mechanic.”
ISSUES
1.) Whether a debtor who is the head of a household may choose alternative property exemptions pursuant to S.D.C.L. 43-45-5(4) for the spouse’s business when both debtors are self-employed and have jointly filed for relief in a business Chapter 13 bankruptcy.
2.) Whether the $200.00 limitation in S.D. C.L. 43-45-5(4) pertains to the clause “stock in trade not exceeding two hundred dollars in value” or “The tools and implements of any mechanic.”
3.) Whether the clause “any mechanic” in S.D.C.L. 43-45-5(4) pertains to “one mechanic” or “more than one mechanic”.
4.) Whether caring for elderly women in a foster care home fits the definition of “mechanic” as the word is used in S.D.C.L. 43-45-5(4).
5.) Whether household furnishings in a foster care home fits the definition of “The tools and implements of any mechanic” as the clause is used in S.D.C.L. 43-45-5(4).
ISSUE — 1
The Trustee contends that S.D. C.L. 43-45-5(4) provides that only a debtor who is the head of a household may claim the tools of a trade of a mechanic. The Trustee maintains that Mrs. Lind is claiming tools of her trade and Mr. Lind for his. This Bankruptcy Court finds that when both debtors are self-employed and have jointly filed for relief in a business Chapter 13 bankruptcy, a debtor who is the head of the household may choose alternative property exemptions for both spouses’ businesses. This finding furthers the purpose of the South .Dakota exemption statutes, which is to protect a debtor and his family by providing a debtor with enough property for rehabilitation. This Court’s finding advances the philosophy behind bankruptcy, which is to give a debtor a “fresh start” and a new economic life. In today’s economy, many families need two incomes to support themselves. This Bankruptcy Court finds inequitable, sexually biased and discriminatory any interpretation of S.D.C.L. 43 — 45— 5(4) that would strip away a spouse’s tools of a trade needed to support a family. For the above mentioned reasons, this Bankruptcy Court overrules the Trustee’s first objection.
ISSUE — 2
Debtors contend this Bankruptcy Court should apply a liberal construction to the $200.00 limitation in S.D.C.L. 43-45-5(4) that would take into account an inflation factor. This Bankruptcy Court finds that *615such a liberal construction would involve the invasion of a legislative function and therefore dismisses Debtors’ third contention.
This Bankruptcy Court agrees with Debtors’ Attorney that South Dakota’s exemption statutes need updating. This Bankruptcy Court has studied South Dakota’s exemption statutes, and it is the Court’s conclusion that they are: archaic, sexist, violate equal protection, and discriminate against single people. Even though Debtors’ arguments have merit, this Bankruptcy Court will not violate the separation of powers provided by our Constitution and invade a legislative prerogative.
The Trustee’s objection as it pertains to the $200.00 limitation in S.D.C.L. 43-45-5(4) is that the $200.00 limitation applies both to the tools of a mechanic and his stock in trade. Therefore, the Trustee maintains Debtors can only claim $200.00 worth of personal property in their businesses. This Bankruptcy Court finds the Trustee has incorrectly interpreted S.D.C.L. 43-45-5(4) and dismisses the Trustee’s objection.
Since the parties to the case have not argued an acceptable interpretation of S.D.C.L. 43-45-5(4), this Bankruptcy Court will adopt its own interpretation in order to resolve the dispute between the parties. This Bankruptcy Court finds that the language of S.D.C.L. 43 — 45—5(4) does not provide a dollar limitation on the “tools and implements of any mechanic, whether a minor or of age, used and kept for the purpose of carrying on his trade or business.” Furthermore, this Bankruptcy Court finds the $200.00 limitation applies only to a debtor’s stock in trade, as being intended by the legislature to be separated by the comma in the statute from “tools and implements”.
This Court’s interpretation advances the philosophy behind the South Dakota and all exemption statutes. Exemption statutes are enacted to protect a family from becoming destitute. By allowing debtors the tools of their trade, they still have a way of providing for their families and the means for working their way out of an economic crisis which necessitated the claim of exemptions from creditor process, be it bankruptcy proceedings or other,
ISSUE-3
Debtors argue that this Bankruptcy Court should adopt a liberal construction of S.D.C.L. 43-45-5(4). In particular, Debtors’ Attorney requests this Bankruptcy Court to construe the word “mechanic” in the plural so as to give effect to the word “any” immediately preceding the word “mechanic” in S.D.C.L. 43-45-5(4). The Trustee objects to Debtors’ interpretation and maintains that mechanic should be interpreted in the singular.
This Bankruptcy Court finds that the clause “any mechanic” refers to more than one mechanic. This interpretation follows S.D.C.L. 2-14-6 which provides:
“Words used in the singular number include the plural, and the plural, the singular except where a contrary intention plainly appears.”
This Bankruptcy Court cannot find any hint of a contrary intention provided in S.D.C.L. 43-45-5(4). The Trustee’s objection is overruled.
ISSUE-4
Debtors request this Bankruptcy Court construe the word “mechanic” to include a person who cares for elderly women in a foster care home. The Trustee maintains that “mechanic”, as the term is used in S.D.C.L. 43 — 45-5(4), does not fit Mrs. Lind’s occupation.
This Bankruptcy Court finds that the obvious legislative intent regarding the term “mechanic” includes anyone who provides a service to others. In light of this Bankruptcy Court’s definition of mechanic, this Bankruptcy Court finds that the word “mechanic” includes a person who cares for elderly women in a foster care home because it involves providing a service to others.
*616ISSUE — 5
Debtors request this Bankruptcy Court find that “household furnishings” in a foster care home are “The tools and implements of any mechanic” as the clause is used in S.D.C.L. 43-45-5(4).
This Bankruptcy Court has already decided that Mrs. Lind is a mechanic when she is involved in operating a foster care service to the elderly. Therefore, this Bankruptcy Court finds that it logically follows that the household furnishings of a foster care service could be her tools of the trade upon an adequate showing by Debtor that all household furnishings are being used in the Debtor’s business.
Because there has not been evidence presented that a 1973 Chevy van is necessary for caring for elderly women in a foster care home, this Bankruptcy Court finds this motor vehicle is not a tool of the trade of Mrs. Lind.
CONCLUSION
First, this Bankruptcy Court holds that S.D.C.L. 43-45-5(4) is interpreted to provide that when both debtors are self-employed and have jointly filed for relief in a business Chapter 13 bankruptcy, a debtor who is the head of the household may choose alternative property exemptions for both spouses’ businesses under South Dakota exemption statutes.
Second, this Bankruptcy Court holds that S.D.C.L. 43-45-5(4) does not provide a dollar limitation on the “tools and implements of any mechanic, whether a minor or of age, used and kept for the purpose of carrying on his trade or business.” Furthermore, this Bankruptcy Court holds the $200.00 limitation applies only to a debtor’s stock in trade.
Third, this Bankruptcy Court holds that the clause “any mechanic” in S.D.C.L. 43-45-5(4) refers to more than one mechanic.
Fourth, this Bankruptcy Court holds that the term “mechanic” includes anyone who provides a service to others.
Fifth, this Bankruptcy Court holds that household furnishings in a foster care home are “The tools and implements of any mechanic.”
This Decision does not decide whether specific items of claimed exempt property fall within the allowable exemptions as decided herein.
This Decision shall constitute Findings of Fact and Conclusions of Law with Debtors’ Attorney directed to supply an Order consistent herewith. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489015/ | MEMORANDUM DECISION
THOMAS C. BRITTON, Bankruptcy Judge.
The plaintiff creditor seeks modification of the automatic stay under 11 U.S.C. § 362(d). (C.P. No. 1). The debtor in this chapter 11 case has answered and has counterclaimed for compensatory and punitive damages of $500,000 on grounds which remain unclear. (C.P. No. 7). The matter was tried on April 3. This order incorporates findings and conclusions as authorized by B.R. 752(a).
In December, 1978, the debtor received a Cadillac lathe and a Rusch band saw under *631a lease from a third party, Florida Pacific S.P.A., a partnership. Florida Pacific has previously purchased the equipment from a fourth party, Mercury Manufacturing Inc. In that transaction, Mercury received a security agreement from Florida Pacific. Mercury’s lien was duly perfected during December, 1978. Mercury’s lien was assigned to the plaintiff who provided the financing for the purchase of the equipment. The defendant-debtor remains in possession of the two items.
The security agreement held by the plaintiff has been in default since January 15, 1980 and the account presently owing to plaintiff is $192,698. It is undisputed that the debtor is unable to cure the default or otherwise provide adequate protection to the plaintiff.
The defense centers around the fact that the same individual, John Williamson, was the president of Mercury and a partner of Florida Pacific at all times material to these transactions and the security agreement which plaintiff relies upon was executed by Williamson on behalf of both parties. Williamson also obtained a one-third interest in the debtor corporation in exchange for his providing the two items in question, together with a third machine tool no longer in the debtor’s possession. All payments made during the two years before default were made by Florida Pacific and the debtor made no payments and had no dealings directly with the plaintiff. The debtor complains that it has been defrauded by Williamson. Although the debtor concedes that its lease of the equipment from Florida Pacific, which gives full notice of the lien, was signed by its president, who knew that he was signing a lease with Williamson for the equipment, the paper he signed was then blank and he did not see the entire lease agreement nor even the signature of Florida Pacific at the time he executed the agreement on behalf of the debtor. It is undisputed that plaintiff is a holder in due course of its assignments to all the benefits of the lease. It is elementary that the alteration of an instrument, even though both fraudulent and material, affords no defense as to a holder in due course. U.C.C. § 3-407; § 673.3-407, Florida Statutes.
It is equally elementary that a party who by his negligence contributes to the alteration or forgery of an instrument in commerce is estopped from denying liability as against a holder in due course. U.C.C. § 3-406; § 673.3-406, Florida Statutes, provides:
“Any person who by his negligence substantially contributes to a material alteration of the instrument or to the making of an unauthorized signature is precluded from asserting the alteration or lack of authority against a holder in due course or against a drawee or other payor who pays the instrument in good faith and in accordance with the reasonable commercial standards of the drawee’s or payor’s business.”
The debtor’s asserted defense is simply unavailable against the plaintiff.
The debtor also seeks comfort from the fact that the serial numbers on the two machines have been removed. I find from the evidence before me that the two machines admittedly in the debtor’s possession are in fact the two machines under lien to the plaintiff and it becomes irrelevant who removed the serial numbers.
The debtor sought and obtained a continuance of this trial once on account of its inability to obtain Williamson’s presence at this trial originally scheduled. At the second setting of this trial, I believe that the debtor abandoned its motion for continuance even though Williamson was again absent. If I am mistaken, the motion for continuance is denied. It has not been suggested to me how Williamson’s further testimony would materially affect this case. His testimony in deposition form is a part of this record.
The complaint prays, in the alternative, that the debtor be ordered to deliver possession of the two machines to the plaintiff. The evidence clearly entitles plaintiff to a judgment for that relief. As is required by B.R. 921(a), a separate judgment will be entered to that effect. Costs will be taxed on motion. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489018/ | FINDING AS TO DISCHARGEABILITY OF A DEBT
H. F. WHITE, Bankruptcy Judge.
Associates Financial Services Company of Ohio, Inc., hereinafter referred to as “Creditor” filed a complaint against Randy Michael Lane and Leeotia Magdaline Lane, husband and wife, hereinafter referred to as “Debtors”, for determination of dis-chargeability of a debt. Creditor alleges that a loan was obtained by the debtors by the furnishing of a false financial statement, and that the debt is non-dischargea-ble as provided for under 11 U.S.C. 523(a)(2)(B) of the Bankruptcy Code. The debtors denied said allegations and the matter was duly set for trial.
The Court considered the evidence and testimony, and having an opportunity to observe the witnesses, does hereby make the following Findings of Fact.
FINDINGS OF FACT
1) The debtors are husband and wife, ages 24 with a tenth grade education and 23 with a ninth grade education respectively.
2) Debtor, Randy Michael Lane, served four (4) years in the Marine Corps.
3) There is one child of said marriage.
4) The debtors did formerly have an account with creditor, which was paid as agreed, and did receive a letter approximately thirty (30) days prior to making an application for the loan at issue herein that their credit was good and the company was willing to make them a loan.
5) On or about March 10, 1980, debtors did communicate by phone with the creditor and furnished the information set forth in plaintiff’s exhibit A.
6) That on or about March 13, 1980, the debtors appeared at the office of said creditor and signed plaintiff’s exhibit B and wrote in the word “no” in response to the inquiry “Do you owe any other debts?” on the statement of financial condition. The *702debtor’s wife, signed the statement under the direction of her husband.
7) The debtor, Randy Michael Lane, admits that he knew that he owed additional debts totaling approximately Five Thousand Seven Hundred Thirty Six Dollars ($5,736.00) as shown in plaintiff’s exhibit D and that he did knowingly fail to inform said creditor on March 10, 1980 and to list said creditors on plaintiff’s exhibit B.
8) The debtor, Randy Michael Lane, at the time of obtaining the loan, had a net weekly income of approximately Three Hundred Twenty Dollars ($320.00) and his wife had a job working in a Lawson’s store which she had for one week and which paid her approximately Three Dollars and Twenty Cents ($3.20) per hour.
9) The purpose of the loan was to obtain money to buy furniture and drapes for their new home, the purchase of which was financed by Cardinal Savings & Loan Company.
10) The debtors were obligated to the Second National Bank of Ravenna on a 1976 Nova with a balance due of approximately Nine Hundred Forty Five Dollars ($945.00).
11) The creditor indicated that it would approve the Eight Hundred Dollar ($800.00) loan provided the debtors furnish evidence that the car loan through Second National Bank of Ravenna had been paid off.
12) The debtors did obtain their income tax refund for the year 1979 with which they paid off their mortgage on the car, and then the creditor extended the loan. The principal balance of the loan was Eight Hundred One Dollars and Twenty Cents ($801.20) although the amount financed amounted to Eight Hundred Eighty Nine Dollars and Eighty Five Cents ($889.85) as credit life and accident insurance were added on to the transaction. Finance charges in the amount of Four Hundred Six Dollars and Eighty Eight Cents ($406.88) were charged on the loan.
13) The Court finds that the net income of the debtors had been reduced by fifty percent (50%) because of economic circumstances beyond their control. Had this not occurred, they would have been able to make the payments to the creditor as agreed.
14)The Court finds that had the debtors, instead of paying off their car, used the income tax refund check to make the purchases which they made from the loan obtained from the creditor, it would have been unnecessary to obtain the loan from the creditor and it would have obviously saved them money as they would not have been required to obtain credit accident and health insurance and pay the financing charge of 26.3% per annum on said loan nor were there any savings under the Rule of 78 in paying off the Second National Bank installment loan.
ISSUE
Has the creditor sustained its burden of proof under 11 U.S.C. 523(a)(2)(B)?
LAW
To except a debt from discharge under Section 523(a)(2)(B) of the Bankruptcy Code, the creditor must show that the debt- or, to obtain money, property, services, or an extension, renewal, or refinance of credit from the creditor, used a written statement that was materially false respecting the debtor’s financial condition on which the creditor reasonably relied and which the debtor caused to be made or published with the intent to deceive.
The evidence is clear in this particular case that the information set forth in plaintiff’s exhibit A was furnished by the debtor and he knew it was false. However, this information was furnished by telephone and not in the handwriting of the debtors. Therefore, the Court by law can only consider plaintiff’s exhibit B which was executed by debtors on March 13, 1981 at the time the loan was consummated. 11 U.S.C. 523(a)(2)(B).
By the testimony of the manager of the company, credit is extended based upon the character, the credit history, the capability of the borrower to repay the loan and the *703debt ratio. The credit evaluation is set forth in plaintiff’s exhibit A — debtors were given a credit evaluation score of two hundred seventeen (217) points: 46 points for time at home address, 35 points for own/rent, 43 points time with employer, 48 points financial institution reference, 31 points for previous credit reference with the creditor and 14 points for the worst credit reference.
The purpose of the loan was set forth in plaintiff’s exhibit A to buy a stove from a friend and drapes for the house for the sum of Eight Hundred Dollars ($800.00). It is significant to this Court that at the time of making the loan the debtors had monthly installment obligations of Five Hundred Forty Two Dollars ($542.00) and were about to become obligated on an indebtedness to Cardinal Savings & Loan in the amount of Forty Five Thousand Dollars ($45,000.00) which was incurred on April 4, 1980, less than three (3) weeks after the loan in question was made. As plaintiff’s exhibit A indicated, debtors were buying a home.
Therefore, it is significant to this Court that creditor’s manager who, though not interviewing the debtor, did review plaintiff’s exhibits A & B and who had been a branch manager since August, 1979 for the creditor and had three (3) years prior experience working for a bank, would have known that the obligation the debtors were about to assume on the purchase of a new house would have substantially altered their debt ratio although it was not reflected in earlier financial statements.
The Court also notes that this loan was unnecessary and economically disadvantageous to the debtors and very advantageous to the creditor. The negotiation of the loan was not in the best interest of the debtors as they had sufficient funds from their tax refund to make the purchases they made with the loan. Instead of requiring the debtors to pay off their car loan to Second National Bank of Ravenna, the creditor could have advised the debtors to use their income tax refund to purchase the drapes for the house and the stove, and thus avoid the insurance charges of Eighty Eight Dollars and Sixty Five Cents ($88.65) and additional finance charges of Four Hundred Six Dollars and Eighty Eight Cents ($406.88). It is obvious to this Court that due to the debtors’ limited financial education they did not realize that they were incurring an additional debt of Four Hundred Ninety Five Dollars and Fifty Three Cents ($495.53) to obtain a loan of Eight Hundred One Dollars and Twenty Cents ($801.20), and that since they already had obligated themselves on the loan for the purchase of the car, it would have been economic logic to use the income tax refund to make the purchases they desired. The only party who would be disadvantaged by such a transaction would have been the creditor finance company as failure to make the loan would not have been in the creditors’ best interest.
This Court finds that the debtor did give false financial information to the creditor by failing to list all his debts, but that the creditor did not reasonably rely on the false statement. Under Rule 407 of the Bankruptcy Rules of Procedure, the creditor, as the party asserting the claim of nondis-chargeability, has the burden of establishing all the elements of Section 523(a)(2)(B) by clear and convincing evidence. Subsection (iii) of Section 523(a)(2XB) requires that the creditor not only prove that it relied on the debtor’s false written statement, but that the creditor’s reliance was reasonable.
It appears to this Court that the creditor relied on past dealings with the debtors in deciding whether to grant the debtors the loan at issue herein. Creditor’s prior loan with the debtors was paid in full by the debtors as agreed. Creditor, by letter, expressed its willingness to make the loan at issue thirty (30) days before the debtors made out their application for said loan. Therefore, it appears that the creditor did not rely on the debtors’ financial statement, but instead relied on the good past dealing with the debtors, his current income and their eagerness to make this loan based upon interest they would earn under the Small Loan Act of Ohio.
The purpose of the exception to discharge set forth in 11 U.S.C. 523(a)(2XB) is to protect creditors who are actually misled by fraudulent statements of debtors. Creditor, *704herein, was not misled into extending debtors credit by debtors’ failure to list all their debts. This Court notes that the statement of financial condition form used by the creditor has only half a line to list liabilities after the inquiry “Do you owe any other debts?”.
The question is, whether faced with the knowledge the creditor had, was reliance on the statement given reasonable. See Matter of Redford, 7 B.R. 322 (Bkrtcy.M.D.Ga.1980). Creditor, herein, had information other than the financial statement available, such as debtors’ credit evaluation, debtors’ credit history with creditor, and debtors’ monthly income versus monthly expenses, on which to base its decision of whether to grant credit. As indicated in Finding of Fact No. 13, the debtor’s current net income per week was reduced by approximately fifty percent (50%) because of cutbacks in his work by the company and has continued up to the date of the trial.
It is the conclusion of this Court that the creditor has not sustained its burden of establishing all the elements of 11 U.S.C. 523(a)(2)(B) by clear and convincing evidence and therefore the creditor’s debt is dischargeable. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489019/ | CHERCHEZ LA FEMME
(Look For The Woman) PRELIMINARY
LEONARD C. GARTNER, Bankruptcy Judge.
It is a little difficult to discern from a reading of the complaint exactly what relief the plaintiff is requesting, but the thrust seems to be that it wants the real estate which was bought some years ago in the name of Terri Shnider, the spouse, placed as property of the debtor’s estate. The basis for that demand seems to be that since the wife is non-income producing commercially or industrially, to place title to real estate in her with money earned by the husband simply because he owes present and potential debts, is in fraud of creditors. No attitude could be so unworthy toward a *706wife. The value of the contribution of a wife to a family overshadows in most instances, as here, completely the income role that the husband plays, and this Court does not look with favor upon the sustained attempt to downgrade her. She certainly earns her right to own property.
DECISION
Overall, this cause came on to be heard upon the complaint filed by Bankers Life and Casualty Company (hereinafter, Bankers) on October 8, 1980 to set aside fraudulent conveyances, as therein alleged; upon the answer of the debtor filed on October 16, 1980, as therein alleged; and upon the memoranda, evidence and testimony presented to the Court.
It is alleged that the debtor, Herbert Shnider, with the intent to hinder, delay and defraud his creditors, made conveyances or transfers of monies to his wife without fair consideration at times when debtor was allegedly insolvent and indebted to Bankers. In particular, the Shnider’s purchase of a home in 1976 and the placing of such property in Terri Shnider’s name was allegedly a fraudulent transfer.
In a prior suit brought by the trustee to deny debtor’s discharge under 11 U.S.C. § 727, the debtor prevailed, as the element of an actual intent to defraud was not proven. (See Trustee Action, Adversary Case No. 1-80-296). Herein, plaintiff’s complaint does not inform the Court under which section of the Bankruptcy Code it is proceeding. Only the Ohio law of fraudulent conveyances is cited. In any event, both the state and federal law require the finding of an actual fraudulent intent. This burden of proof has not been met by the plaintiff as the following facts reveal.
Herbert and Terri Shnider married in 1974. From that time to the present, all checking accounts, savings accounts and assets of the marriage were placed in the wife’s name. This was a consistent and continued pattern of conduct and was not in contemplation of bankruptcy which was to occur six years later. In March, 1975, after having left employment with Bankers, debtor received notice of “advanced commissions” that he allegedly owed to plaintiff. Debtor disputed and denied this claim until, upon advice of counsel, he did not respond to a motion for summary judgment because of his impending bankruptcy resulting from an unfortunate business venture. Summary judgment was entered against the debtor on July 11, 1980. Debtor filed bankruptcy on August 9, 1980.
The clear and convincing evidence standard set by In Re Campbell, No. 56,018 (S.D. Ohio, 1972) has not been met as to the issue of actual fraudulent intent which is a required element to avoid a conveyance. See, In Re Castillo, 7 B.R. 135 (Bkrtcy. S.D.N.Y. 1980); Matter of Laughlin, 7 B.R. 924 (Bkrtcy. W.D.Mo. 1981). The claim of Bankers was not undisputed and not reduced to judgment until four years after the purchase of the Shnider home. All undisputed debts were being paid until the failing of the business venture.
Therefore, plaintiff’s claim is denied and the Complaint dismissed.
SO ORDERED. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482801/ | Third District Court of Appeal
State of Florida
Opinion filed November 10, 2022.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D21-2439
Lower Tribunal Nos. F16-10266, F-16-21913, and F19-20005A
________________
Christopher Coley,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Ellen Sue
Venzer, Judge.
Carlos J. Martinez, Public Defender, and Shannon Hemmendinger,
Assistant Public Defender, for appellant.
Ashley Moody, Attorney General, and Ivy R. Ginsberg, Assistant
Attorney General, for appellee.
Before FERNANDEZ, C.J., and LINDSEY, and LOBREE, JJ.
FERNANDEZ, C.J.
Appellant Christopher Coley appeals the trial court’s order denying
Coley’s motion to withdraw plea. Upon review of the record, and the State’s
concession that Coley’s appeal has merit, we reverse the order denying the
motion to withdraw plea and remand with instructions for the trial court to
appoint conflict-free counsel to represent Coley on the motion.
We review an order denying a motion to withdraw plea for abuse of
discretion. Woodly v. State, 937 So. 2d 193, 196 (Fla. 4th DCA 2006).
On November 30, 2021, the trial court scheduled an evidentiary
hearing on the motion to withdraw plea with the understanding that Coley
would be representing himself. On December 1, 2021, the day of the hearing,
the State cross-examined Coley and called defense counsel to testify against
Coley. In return, Coley questioned defense counsel and challenged defense
counsel’s statements consistent with the allegations of the motion. Following
the evidentiary hearing, the trial court denied the motion to withdraw plea.
The State concedes that when it became clear that Coley and his trial
counsel had taken adversarial positions as to Coley’s plea, the court was
required to appoint conflict free counsel. See Padgett v. State, 743 So. 2d
70, 73 (Fla. 4th DCA 1999); Angeles v. State, 279 So. 3d 836, 837 (Fla. 2d
DCA 2019) (“When a defendant files a facially sufficient motion setting forth
2
an adversarial relationship with counsel, the court is required to appoint
conflict-free counsel unless the record conclusively refutes the motion’s
allegations.”); Krautheim v. State, 38 So. 3d 802, 805 (Fla. 2d DCA 2010)
(“[O]nce it becomes clear that a defendant and his counsel are in an
adversarial relationship with respect to the defendant’s entry of his plea, the
defendant is entitled to the appointment of conflict-free counsel to represent
him and assist him with respect to his motion to withdraw plea.”); Jones v.
State, 827 So. 2d 1086, 1087 (Fla. 1st DCA 2002) (finding an adversarial
relationship may be established by record evidence that counsel may be
called as a witness at a later hearing).
We reverse the order denying the motion to withdraw plea and remand
with instructions for the trial court to appoint conflict-free counsel to represent
Coley on the motion.
Reversed and remanded with instructions.
3 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482799/ | Third District Court of Appeal
State of Florida
Opinion filed November 10, 2022.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D21-1545
Lower Tribunal No. 19-35962
________________
Dr. James Eric McDonough,
Appellant,
vs.
City of Homestead, et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Pedro P.
Echarte, Jr., Judge.
Dr. James Eric McDonough, in proper person.
Weiss Serota Helfman Cole & Bierman, P.L., and Edward G. Guedes
and Samuel I. Zeskind (Fort Lauderdale), for appellee City of Homestead.
Before LOGUE, HENDON and GORDO, JJ.
PER CURIAM.
Affirmed. See Fla. Agency for Health Care Admin. v. Zuckerman
Spaeder, LLP, 221 So. 3d 1260, 1263 (Fla. 1st DCA 2017) (“The proper
standard utilized in reviewing a trial court’s decision on a petition for writ of
mandamus is abuse of discretion.”); Florida Holding 4800, LLC v. Lauderhill
Lending, LLC, 275 So. 3d 183, 187 (Fla. 4th DCA 2019) (“[A] party cannot
successfully complain about an error for which he or she is responsible or of
rulings that he or she has invited the trial court to make.” (quoting Millsaps
v. Kaltenbach, 152 So. 3d 803, 805 (Fla. 4th DCA 2014))); Vidal v.
Liquidation Props., Inc., 104 So. 3d 1274, 1276 (Fla. 4th DCA 2013) (finding
that if an “issue was waived, it cannot be grounds for reversal on appeal”).
2 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482802/ | Third District Court of Appeal
State of Florida
Opinion filed November 10, 2022.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D22-604
Lower Tribunal No. 19-15393
________________
C.J., the Father,
Appellant,
vs.
Department of Children and Families, et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Scott M.
Bernstein, Judge.
Law Offices of Roger Ally, P.A., and Roger Ally (Hollywood), for
appellant.
Allison J. McCabe (Port Orange) and Sara Elizabeth Goldfarb
(Tallahassee), for appellee Guardian ad Litem; Karla Perkins, for appellee
Department of Children and Families.
Before FERNANDEZ, C.J., and GORDO, and LOBREE, JJ.
PER CURIAM.
Affirmed. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482803/ | Third District Court of Appeal
State of Florida
Opinion filed November 10, 2022.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D21-2265
Lower Tribunal No. 19-3099-CC
________________
British Moss,
Appellant,
vs.
SafePoint Insurance Company,
Appellee.
An Appeal from the County Court for Miami-Dade County, Maria D.
Ortiz, Judge.
British Moss, in proper person.
Bickford & Chidnese, LLP, Patrick M. Chidnese and Frieda C. Lindroth
(Tampa), for appellee.
Before FERNANDEZ, C.J., and EMAS, and BOKOR, JJ.
PER CURIAM.
Affirmed on the authority of Florida Rule of Appellate Procedure
9.315(a) Fla. R. App. P. 9.315(a) (“After service of the initial brief ... the court
may summarily affirm the order to be reviewed if the court finds that no
preliminary basis for reversal has been demonstrated.”).
2 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482807/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/10/2022 08:05 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.
- 793 -
Nebraska Supreme Court Advance Sheets
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.
- 794 -
Nebraska Supreme Court Advance Sheets
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.
- 795 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
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.
- 796 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
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
- 798 -
Nebraska Supreme Court Advance Sheets
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.
- 799 -
Nebraska Supreme Court Advance Sheets
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
- 800 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
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
- 801 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
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
- 802 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
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.
- 803 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
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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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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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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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 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482809/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/10/2022 08:05 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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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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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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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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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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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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(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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[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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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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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 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482806/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/10/2022 08:05 AM CST
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STATE V. TRAIL
Cite as 312 Neb. 843
State of Nebraska, appellee, v.
Aubrey C. Trail, appellant.
___ N.W.2d ___
Filed November 10, 2022. No. S-21-557.
1. Pleadings: Parties: Judgments: Appeal and Error. A denial of a
motion to sever will not be reversed unless clear prejudice and an
abuse of discretion are shown, and an appellate court will find such an
abuse only where the denial caused the defendant substantial prejudice
amounting to a miscarriage of justice.
2. Trial: Witnesses. It is for the trial court to determine the extent to which
a sequestration order will be applied in a given case.
3. Motions for Mistrial: Appeal and Error. An appellate court will not
disturb a trial court’s decision whether to grant a motion for mistrial
unless the court has abused its discretion.
4. Criminal Law: Motions for New Trial: Appeal and Error. In a crimi-
nal case, a motion for new trial is addressed to the discretion of the trial
court, and unless an abuse of discretion is shown, the trial court’s deter-
mination will not be disturbed.
5. Constitutional Law: Statutes: Appeal and Error. The constitutionality
of a statute presents a question of law, which an appellate court indepen-
dently reviews.
6. Sentences: Death Penalty: Aggravating and Mitigating Circum
stances: Appeal and Error. In reviewing a sentence of death, the
Nebraska Supreme Court conducts a de novo review of the record to
determine whether the aggravating and mitigating circumstances support
the imposition of the death penalty.
7. Constitutional Law: Criminal Law: Jury Trials. The Sixth Amendment
secures to criminal defendants the right to be tried by an impartial jury
drawn from sources reflecting a fair cross-section of the community.
8. Constitutional Law: Juror Qualifications. The fair-cross-section
venire requirement is not explicit in the text of the Sixth Amendment,
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Cite as 312 Neb. 843
but is derived from the traditional understanding of how an impartial
jury is assembled.
9. ____: ____. The representativeness constitutionally required at the
venire stage can be disrupted at the jury-panel stage to serve a State’s
legitimate interest.
10. Death Penalty: Juror Qualifications. An adequate voir dire where
jurors are directly involved in sentencing in a capital case entails the
opportunity to inquire into whether the views on the death penalty
would disqualify prospective jurors from sitting.
11. Juror Qualifications. Groups defined solely in terms of shared attitudes
that would prevent or substantially impair members of the group from
performing one of their duties as jurors are not distinctive groups for
fair-cross-section purposes.
12. Constitutional Law: Juror Qualifications: Proof. In order to establish
a prima facie violation of the fair-cross-section requirement under the
Sixth Amendment, a defendant must show (1) that the group alleged
to be excluded is a “distinctive” group in the community, (2) that the
representation of this group in venires from which juries are selected is
not fair and reasonable in relation to the number of such persons in the
community, and (3) that this underrepresentation is due to systematic
exclusion of the group in the jury selection process.
13. Juries. An impartial jury is nothing more than jurors who will conscien-
tiously apply the law and find the facts.
14. Death Penalty: Juror Qualifications. Beliefs with respect to the death
penalty are within the individual’s control. Death qualification does not
create an appearance of unfairness, as it only results in the removal for
cause of those jurors who are unwilling to temporarily set aside their
own beliefs in deference to the rule of law.
15. Death Penalty: Juries: Proof. The State has a legitimate interest in
avoiding the burden of presenting the same evidence to different juries
for the guilt phase and the aggravation phase of trial.
16. Constitutional Law: Death Penalty: Juries. The State does not violate
the Sixth Amendment right to an impartial jury by death qualifying the
jury before a trial wherein it has alleged an aggravator that, if found by
the jury, will make the defendant eligible for the death penalty.
17. Equal Protection: Statutes. When a classification created by state
action does not jeopardize the exercise of a fundamental right or catego-
rize because of an inherently suspect characteristic, the Equal Protection
Clause requires only that the classification rationally further a legitimate
state interest.
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Cite as 312 Neb. 843
18. Constitutional Law: Death Penalty. The Eighth Amendment and arti-
cle I, §§ 9 and 15, of the Nebraska Constitution are not violated by death
qualification in a capital case.
19. Constitutional Law: Trial: Joinder. There is no constitutional right to
a separate trial.
20. Trial: Joinder: Appeal and Error. Whether offenses were properly
joined involves a two-stage analysis: (1) whether the offenses were suf-
ficiently related to be joinable and (2) whether the joinder was prejudi-
cial to the defendant.
21. Trial: Joinder: Proof: Appeal and Error. A defendant appealing the
denial of a motion to sever has the burden to show compelling, specific,
and actual prejudice.
22. Trial: Joinder. Severe prejudice occurs when a defendant is deprived
of an appreciable chance for an acquittal, a chance that the defendant
would have had in a severed trial.
23. ____: ____. Prejudice from joinder cannot be shown if evidence of
one charge would have been admissible in a separate trial of another
charge.
24. Conspiracy: Hearsay. The coconspirator exception to the hearsay rule
is applicable regardless of whether a conspiracy has been charged in the
information or not.
25. ____: ____. Under the coconspirator exception to the hearsay rule, the
declarant conspirator who partners with others in the commission of a
crime is considered the agent of his or her fellow conspirators, and the
commonality of interests gives some assurance that the statements are
reliable.
26. Conspiracy: Hearsay: Evidence. Whether or not a conspiracy has
been charged in the information, before the trier of fact may consider
testimony under the coconspirator exception to the hearsay rule, a prima
facie case establishing the existence of the conspiracy must be shown by
independent evidence, to prevent the danger of hearsay evidence being
lifted by its own bootstraps.
27. Trial: Witnesses. The exclusion or sequestration of a witness is within
the discretion of the trial court.
28. Trial: Witnesses: Appeal and Error. The denial of a sequestration
motion will not be overturned absent evidence of prejudice to the
defendant.
29. Criminal Law: Motions for Mistrial. A mistrial is properly granted in
a criminal case where an event occurs during the course of trial which
is of such a nature that its damaging effect cannot be removed by proper
admonition or instruction to the jury and thus prevents a fair trial.
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30. Motions for Mistrial: Proof: Appeal and Error. To prove error predi-
cated on the failure to grant a mistrial, the defendant must prove the
alleged error actually prejudiced him or her, rather than creating only
the possibility of prejudice.
31. Jurors: Jury Instructions: Presumptions. Absent evidence to the con-
trary, the legal system presumes that jurors, to the extent they are able,
will comply with curative instructions and judicial admonitions.
32. Motions for New Trial: Statutes. A motion for a new trial is a statutory
remedy and can be granted by a court of law only upon the grounds, or
some of them, provided for by the statutes.
33. Motions for New Trial: Proof. The asserted ground for a new trial must
affect adversely the substantial rights of the defendant, and it must be
shown that the defendant was prejudiced thereby.
34. Courts: Motions for Mistrial: Motions for New Trial: Appeal and
Error. A trial court is vested with considerable discretion in passing on
motions for mistrial and for a new trial, and an appellate court will not
disturb a trial court’s decision whether to grant a motion for mistrial or
a motion for new trial unless the court has abused its discretion.
35. Appeal and Error. It is an abuse of discretion to make an error of law
or clear errors of factual determination.
36. Judges: Witnesses: Appeal and Error. The trial judge is better situated
than a reviewing court to pass on questions of witness credibility and the
surrounding circumstances and atmosphere of the trial.
37. Motions for Mistrial. As a general matter, a defendant is not permitted
to profit from the defendant’s own bad conduct by disrupting courtroom
proceedings and then urging disruption as a ground for mistrial.
38. Criminal Law: Motions for Mistrial. Disruptive acts of the defendant
are not irremediable simply because they reflect some attribute consist
ent with the charged crime.
39. Constitutional Law: Due Process: Criminal Law: Jury Trials: Proof.
The Sixth Amendment right to a speedy and public trial by an impartial
jury, in conjunction with the Due Process Clause, requires that each ele-
ment of a crime be proved to a jury beyond a reasonable doubt.
40. Constitutional Law: Statutes: Death Penalty: Aggravating and
Mitigating Circumstances: Jury Trials. Under a statutory scheme
in which the death penalty cannot not be imposed unless at least one
aggravating factor is found to exist beyond a reasonable doubt, the
Sixth Amendment requires the factual determination of the aggravating
factor be entrusted to the jury.
41. Constitutional Law: Death Penalty: Aggravating and Mitigating
Circumstances: Jury Trials. The Sixth Amendment requires only the
right to a jury determination of the death-eligibility finding of one or
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more aggravating circumstances and it does not apply to the selec-
tion decision.
42. ____: ____: ____: ____. In a capital sentencing proceeding, just as in
an ordinary sentencing proceeding, a jury is not constitutionally required
to weigh the aggravating and mitigating circumstances or to make the
ultimate sentencing decision within the relevant sentencing range.
43. ____: ____: ____: ____. Nebraska’s sentencing scheme does not vio-
late the Sixth Amendment right to a jury trial or article I, § 6, of the
Nebraska Constitution, by leaving to the three-judge panel the ultimate
life-or-death decision upon making the selection decisions of whether
the aggravating circumstances justify the death penalty and whether
sufficient mitigating circumstances exist that approach or exceed the
weight given to the aggravating circumstances.
44. Constitutional Law: Sentences. The Cruel and Unusual Punishment
Clause prohibits (1) barbaric punishments under all circumstances and
(2) punishments that are not graduated and proportioned to the offense.
45. Constitutional Law: Statutes: Death Penalty: Aggravating and
Mitigating Circumstances. Nebraska’s statutory scheme, delegating
to the three-judge panel determinations of whether the aggravating
circumstances justify the death penalty and whether sufficient miti-
gating circumstances exist that approach or exceed the weight given
to the aggravating circumstances, does not violate the 8th and 14th
Amendments to the U.S. Constitution or article I, § 9, of the Nebraska
Constitution.
46. Sentences: Death Penalty: Appeal and Error. Proportionality review
requires the Supreme Court to compare the aggravating and mitigating
circumstances with those present in other cases in which a district court
imposed the death penalty.
47. Death Penalty: Aggravating and Mitigating Circumstances. The bal-
ancing of aggravating circumstances against mitigating circumstances is
not merely a matter of number counting, but, rather, requires a careful
weighing and examination of the various factors.
48. ____: ____. The death penalty can be imposed when only one aggravat-
ing circumstance is present.
Appeal from the District Court for Saline County: Vicky L.
Johnson, Judge. Affirmed.
Benjamin H. Murray, of Murray Law, P.C., L.L.O., for
appellant.
Douglas J. Peterson, Attorney General, and James D. Smith,
Senior Assistant Attorney General, for appellee.
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Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
I. INTRODUCTION
The defendant was convicted by a jury of murder in the
first degree and criminal conspiracy to commit first degree
murder. He was also convicted, pursuant to a plea, of improper
disposal of human skeletal remains. A three-judge panel sen-
tenced the defendant to death. The defendant asserts on appeal
that the three-judge panel erred in determining the sentence
of death was not excessive or disproportionate to the penalty
imposed in similar cases. Alternatively, he argues Nebraska’s
death penalty scheme is unconstitutional because it allows
a panel of judges rather than a jury to make findings of
whether the aggravating circumstances justify the death pen-
alty and whether sufficient mitigating circumstances exist
which approach or exceed the weight given to the aggravating
circumstances. The defendant also challenges the constitution-
ality of death qualifying the potential jurors, arguing that it
creates a conviction-prone jury. Finally, the defendant chal-
lenges the denial of his pretrial motion to sever the conspiracy
and murder charges, the court’s release of the victim’s mother
from sequestration after she testified, the denial of his motion
for a mistrial after a verbal outburst and act of self-harm in
front of the jury, and the denial of a motion for a new trial
after evidence was submitted allegedly demonstrating the self-
harm would not have occurred but for the alleged misconduct
of jail staff. We affirm.
II. BACKGROUND
The State’s amended information charged Aubrey C. Trail
with one count of murder in the first degree, in violation of
Neb. Rev. Stat. § 28-303(1)(a) (Cum. Supp. 2020); one count
of improper disposal of human skeletal remains, in violation
of Neb. Rev. Stat. § 28-1301(2)(b) (Reissue 2016); and one
count of criminal conspiracy to commit first degree murder, in
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violation of Neb. Rev. Stat. § 28-202 (Cum. Supp. 2020). The
victim was Sydney Loofe (Sydney), who was 24 years old at
the time of her death on or about November 15, 2017.
The operative information gave notice that the State intended
to adduce evidence of the aggravating circumstances (1) that
the murder manifested exceptional depravity by ordinary stan-
dards of morality and intelligence and (2) that Trail has a
substantial prior history of serious assaultive or terrorizing
criminal activity. The State later removed the notice of second
aggravator.
As part of his trial strategy, Trail pled no contest to the
improper disposal of human skeletal remains. His plea was
accepted prior to the beginning of the jury trial on the remain-
ing two counts. The theory of the defense was that Trail was
involved in a consensual sexual relationship with a group of
women. This group always included Bailey Boswell, with
whom Trail lived. The group also at various points included
Ashley Hills, Anastasia Golyakova, and Kaitlyn Brandle. The
defense argued that because Hills and Golyakova had recently
left the group, Trail was hoping Sydney would become a new
member. According to the defense, Sydney was interested in
joining the group and was accidentally killed while the recipi-
ent of consensual erotic asphyxiation. Trail then panicked and
dismembered and disposed of Sydney’s remains.
1. Jury Selection
Before trial, defense counsel moved to “prevent death quali-
fication of the jury.” In the motion, defense counsel objected
to any mention—in the jury questionnaires, during jury selec-
tion, or during the trial of guilt or innocence—of the possible
sentences Trail might receive. Defense counsel asserted that
informing the jury of the possible penalty of death is unneces-
sary and results in excluding those jurors who cannot perform
their duties because of their beliefs on the death penalty.
According to defense counsel, this process results in those
charged with capital offenses being unjustifiably subjected to
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conviction-prone juries, which violates equal protection under
the 14th Amendment to the U.S. Constitution and article 1,
§ 3, of the Nebraska Constitution; the right under the 6th
Amendment to the U.S. Constitution to a fair and impartial
cross-section of jurors; and the right to heightened reliability
in capital cases as protected by the 8th Amendment to the
U.S. Constitution and article I, §§ 9 and 15, of the Nebraska
Constitution.
As is relevant to this appeal, defense counsel asserted that
“empirical research has demonstrated that the systematic
exclusion of jurors who have a moral objection to the death
penalty results in capital juries that tend to be . . . more
conviction-prone” and that these views are not representative
of a fair cross-section of the community. Further, asking jurors
about their views on the death penalty magnifies the effect of
conviction-prone beliefs. While defense counsel acknowledged
that the U.S. Supreme Court, in Lockhart v. McCree, 1 rejected
a claim that the process of death qualification violates the fair-
cross-section requirement of the Sixth Amendment and the
right to an impartial jury, defense counsel cited in the written
motion to various articles describing additional studies in the
30-plus years since McCree, indicating the process of death
qualification creates conviction-prone juries. No testimony or
other evidence was adduced in support of the motion.
Defense counsel stated that the justification for death quali-
fication presupposes a statutory scheme in which a single jury
determines both the guilt and the penalty. Defense counsel
argued that because in Nebraska, the jury does not deter-
mine the sentence in the penalty phase, informing the jury
of the possible sentence of death serves no legitimate pur-
pose. Accordingly, a potentially conviction-prone jury created
by death qualification cannot pass the heightened scrutiny
allegedly applicable to this conviction-prone classification
of jurors.
1
Lockhart v. McCree, 476 U.S. 162, 106 S. Ct. 1758, 90 L. Ed. 2d 137
(1986).
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The court overruled the motion and proceeded with voir
dire. During voir dire, defense counsel renewed the objection
to “the death qualification of each individual juror during jury
selection.” The renewed objection was overruled.
Juror questionnaires and the judge’s statement from the
bench during voir dire informed the potential jurors that
the charges Trail faced could result in the death penalty. The
judge explained that the sentence itself would be determined
by a panel of judges, but that if Trail were found guilty of first
degree murder, the jurors would be asked to listen to some
more evidence and determine if the State had proved addi-
tional elements, after which their duty would be done and the
matter would go to the panel of judges for sentencing.
During the jury selection process, jurors Nos. 104 and 126
stated in chambers that their views against the death penalty
would impair their ability to be fair and impartial. Both jurors
were struck for cause on the State’s motion. Defense counsel
did not object to them being excused.
Jurors Nos. 23, 60, 78, 245, 261, and 275 were struck for
cause on defense counsel’s motion because they indicated their
belief in Trail’s guilt would interfere with their ability to be
fair and impartial.
Jurors Nos. 108, 113, and 262 indicated they did not believe
in the death penalty but could perform their factfinding duties
in a fair and impartial manner. Jurors Nos. 113 and 262 were
subject to peremptory challenges, but juror No. 108 was not.
2. Motion to Sever Murder and
Conspiracy Charges
Defense counsel moved pursuant to Neb. Rev. Stat.
§ 29-2002 (Reissue 2016) to sever the trial on the murder
charge from the other charges. As relevant to this appeal,
defense counsel asserted joinder would prejudice Trail because
evidence admissible in support of the conspiracy charge would
not be admissible in support of the murder charge, if those
two charges were tried separately. Defense counsel explained
there would be no evidence proving the conspiracy that would
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be truly independent of the murder charge. Defense counsel
believed that, because of this, there could be no prima facie
case through independent evidence establishing the existence
of the underlying conspiracy, which is necessary to admit
testimony under the coconspirator exception to the hearsay
rule. The defense argued the State was trying to introduce
hearsay evidence to establish a conspiracy, with its more flex-
ible hearsay rules, and then use that conspiracy to permit the
introduction of otherwise inadmissible hearsay testimony into
evidence to support the murder charge.
The State responded it intended to establish, without “imper-
missible hearsay,” a prima facie case of conspiracy, before
attempting to introduce evidence under the coconspirator
exception to the hearsay rule. The evidence to establish the
conspiracy, explained the State, would primarily consist of
the testimony of Hills, Golyakova, and Brandle, all of whom
Trail had tried to convince to participate in a murder. The State
asserted their testimony would be admissible as evidence of
premeditation on the murder charge and would be introduced
into evidence even if the trial of the conspiracy count were not
joined with the murder count.
The court overruled the motion to sever. However, it warned
the State that “it needs to structure its case to avoid the boot-
strapping problems and that I will be keeping an eye on the
case as it proceeds.”
3. Sequestration and Release
of Sydney’s Mother
Before trial commenced, the court granted defense coun-
sel’s motion to sequester witnesses. Sydney’s mother was the
first witness to testify at trial. After being cross-examined
by defense counsel, the State asked that Sydney’s mother be
released from her subpoena. The State said it would waive
sequestration and would be willing to allow the defense to
call Sydney’s mother out of turn if it wished, so that Sydney’s
mother could be present to watch the remainder of the trial.
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Defense counsel objected. Following a discussion in cham-
bers that was not on record, the court pronounced that it was
releasing Sydney’s mother from sequestration but would allow
the defense to reopen its cross-examination if it wished to do
so. Sydney’s mother was not recalled to testify by either party
after being released from sequestration.
4. Evidence Adduced at Trial
At trial, evidence was adduced that Trail and Boswell moved
into a basement apartment in Wilber, Nebraska, in June 2017.
They had been in a romantic relationship since the summer of
2016. To make money, they sold stolen goods, including sales
at a local antiques market.
(a) Sydney’s Contact With Trail and
Boswell in November 2017
In November 2017, Boswell posed as “Audrey” on an online
dating application (dating app). Boswell began messaging with
Sydney on November 11 and learned that her family lived
hours away from where Sydney lived in Lincoln, Nebraska.
She also learned that Sydney worked as a store clerk at a
Lincoln hardware store. Sydney and Boswell arranged a first
date on November 14. Text messages between them are con-
sistent with arranging a first date. Neither Trail nor any other
third party is mentioned in the text messages.
Sydney initially delayed giving Boswell her address, but
upon further request on the evening of November 13, 2017,
provided it. Within 1 minute of obtaining the address, Boswell
conducted an internet search for its location. Within 5 minutes
of obtaining that information, Boswell made a reservation at a
hotel nearby.
Trail and Boswell checked into that hotel before the first
date. After a couple of hours on their first date, Boswell
returned Sydney home. Sydney did not go to the hotel. Boswell
joined Trail at the hotel, where they again spent the night.
Sydney had accepted a second date with Boswell to occur
on November 15, 2017. On the morning of November 15,
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Trail and Boswell left the hotel and went to a hardware store
where they purchased dropcloths, a hacksaw, blades, and
tin snips.
Cell phone location information indicated that around the
time Sydney would have left for work, Trail and Boswell
drove to the vicinity of Sydney’s apartment. Trail and Boswell
then took the same route Sydney took to work.
Shortly after Sydney started her shift, Trail entered Sydney’s
workplace alone. Video footage showed that as Sydney walked
toward her station at the “guard shack,” she crossed paths with
Trail, who was walking into the store. Trail did not interact
with Sydney, and she did not appear to recognize Trail. As
Sydney walked away, Trail turned around twice to watch her.
Trail then called Boswell. Trail proceeded into the hardware
store where he purchased a chemical drain cleaner and a
long cord.
Cell phone location information showed that Trail and
Boswell went back to their Wilber apartment while Sydney
was at work. While in Wilber, Boswell made two trips to local
stores. On the first trip, she purchased bleach and large trash
bags. Later, she purchased duct tape and roasting pans.
Throughout the day, Boswell texted Sydney to ask how
her day was going and communicate that she was looking
forward to their date. Sydney left work at the end of her shift
on November 15, 2017. Boswell left the Wilber apartment
around 6 p.m. and picked Sydney up at her apartment around
6:54 p.m.
Trail was at the Wilber apartment. Boswell called Trail
at 7:11 p.m. Cell phone location information indicated that
Sydney arrived at Trail and Boswell’s apartment at approxi-
mately 8 p.m. on November 15, 2017, and that both Trail and
Boswell were present at the apartment at that time. The cell
tower lost all signal from Sydney’s phone at 8:40 p.m.
A resident of the apartment building where Trail and Boswell
lived smelled bleach late that night. The smell of bleach was
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so strong that the following day, another resident of the build-
ing became ill from it.
Sydney did not report to work the next day. She was never
seen alive again.
(b) Disposal of Sydney’s Body
and Cause of Death
Cell phone location information indicated that Trail and
Boswell left their apartment the afternoon of November 16,
2017, and traveled to an area in Clay County. On December
4 and 5, after tracing Trail’s and Boswell’s cell phone loca-
tion information, most portions of Sydney’s body were found
in a ditch in the area Trail and Boswell had traveled to on
November 16. The remainder of Sydney’s body, including most
of her internal organs, was never found. Law enforcement also
found duct tape, tarps, a sauna suit with the crotch missing,
gloves, and various items of clothing in the vicinity.
Sydney’s body had been segmented into 14 parts and
placed into garbage bags. An autopsy revealed the manner of
death to be homicidal violence that included an element of
strangulation. The hyoid bone in the neck had been crushed,
there was a scleral hemorrhage in one of her eyes, and there
was petechiae, or “little hemorrhages,” throughout the face,
including in the eyelids and under the eyelids. Scleral hemor-
rhages and petechiae are due to an occlusion of blood flow
and consistent with either manual or ligature strangulation.
When asked whether these signs are “very common in stran-
gulation cases,” the expert responded, “Yes. Manual strangu-
lation, yes.”
Expert testimony introduced by the State reflected that stran-
gulation due to erotic asphyxiation is rare and that a fracture
of the hyoid bone, which resides deep in the neck tissue, is
very uncommon during erotic asphyxiation. Sydney’s body
also showed indications that around the time of death, she
experienced blunt force trauma. This included bruises on the
back of the head and down the middle of her back and a deep
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bruise into the muscle of her inner thigh. Around the time of
her death, Sydney also suffered a torn earlobe around a pierc-
ing site. Abraded contusions around Sydney’s wrists revealed
evidence of restraints.
The autopsy was complicated by the absence of most of the
organs of Sydney’s torso and abdomen, as well as the absence
of other body parts, such as the upper part of the trachea, wind-
pipe, larynx, and veins and arteries of the neck. These appeared
to have been removed post mortem by use of a sharp blade.
The pathologist did not believe the mutilation of Sydney’s
body was due to animal predation.
In an interview with law enforcement after he was appre-
hended, Trail spoke of draining Sydney’s blood from her body
and being “very thirsty that day.” Numerous superficial post
mortem shallow cuts were found on Sydney’s body. These
included cuts underlining and framing a tattoo on Sydney’s arm
reading, “Everything will be wonderful someday.”
(c) Hills’, Golyakova’s, and Brandle’s
Relationships With Trail and Boswell
From July to November 2017
Before they were called individually to testify, defense
counsel objected at trial to the introduction of the deposition
testimonies of Hills, Golyakova, and Brandle on the grounds
that the State had failed to establish a prima facie case of a
conspiracy through independent evidence. The State responded
that evidence had already been adduced of overt acts of the
conspiracy, such as online dating recruitment, the purchases
at the hardware store the day before the murder, staying at
the hotel, driving by Sydney’s apartment and observing her at
work, and the cell phone evidence linking Trail and Boswell
to Sydney’s murder. The State explained that Sydney’s murder
was part of an overarching conspiracy beginning in July 2017
to kill someone, and to continue killing.
The court ruled that the State had not yet established a prima
facie case for a conspiracy through independent evidence.
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After that ruling, the State introduced, without objection, phys-
ical evidence that Golyakova and Brandle had been inside the
Wilber apartment. The State also introduced the testimony of
law enforcement that its investigation had linked Golyakova
to several stays with Trail and Boswell at a hotel in Falls City,
Nebraska, between July and October 2017. The State then
adduced Hills’ testimony.
(i) Hills’ Testimony and Prima
Facie Case of Conspiracy
Without objection, Hills testified that she met Boswell
through an online dating app in July 2017 and that she met
Trail through Boswell. Boswell used an alias.
Trail told Hills that he could help her get revenge on
an abusive stepfather. He invited Hills to become 1 of 12
other women he claimed were associated with him, whom he
referred to intermittently as “his girls” and “witches.” Trail
showed Hills nude photographs of the alleged witches, but she
never met any of them. Boswell was the “queen witch.” Trail
claimed to be a vampire.
In August 2017, Hills was introduced to Golyakova as a per-
son who Trail said might become “one of us” as a “watcher.”
Trail told Hills that she could leave his “coven” at any point
until she took her first “soul,” which she understood meant to
kill someone and “take their last breath.”
Hills believed Trail. She continued to associate with Trail
and Boswell. She was sexually involved with both. Their
sexual activities involved erotic asphyxiation. Hills had to fol-
low various rules that Trail set for her behavior, such as having
to check in every 3 hours while away from the Wilber apart-
ment, remaining unclothed while in the apartment, and having
to ask permission to do anything, even to use the restroom or
get a drink of water. If she did not follow these rules or oth-
erwise misbehaved, she was physically punished by being hit,
whipped, or choked. Trail paid her an allowance. Hills also
assisted in selling antiques.
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Hills described a process she observed a few times where
Boswell would start talking to a woman she met through a
dating app and then hand off the communication with that
woman to Trail. If the woman wanted to talk on the phone,
Trail would give the phone to Boswell after giving her a sum-
mary of prior text communications.
Hills stated that in August 2017, while at a grocery store,
Boswell briefly met with a woman she had been communicat-
ing with in that manner. Boswell directed the woman to go
speak with Trail. Trail and the woman spoke for a while before
Trail, Boswell, and Hills left the store. Hills testified that Trail
asked her afterward if she wanted that woman to be her “first
kill.” While Hills responded in the affirmative, she was told a
couple of weeks later that the woman had traveled to California
to visit family. Trail told Hills they “would either save her for
another time or find someone else.”
Trail, Boswell, Hills, and Golyakova went on a vacation
together that August. Shortly thereafter, Trail stated that he
wanted to kill Golyakova. Trail explained Golyakova was too
nice and “didn’t have the evil in her.” A plan was discussed to
do so, but never executed. Trail threatened Hills that he would
kill her family if she ever disclosed his plans.
Hills stated that Trail often spoke of torturing and killing
someone and said that causing pain to someone would make
the killer more powerful. Trail was aroused by the idea of
watching her and Boswell torture someone. He told Hills he
wanted the idea of torturing someone to be arousing for her
and Boswell too. Trail asked Hills to think about ways she
would torture her victim.
In September 2017, Hills told Boswell she wanted out.
Among other reasons, she did not want to kill Golyakova. Hills
moved to another town and had only sporadic contact with
Trail and Boswell thereafter.
During a break in Hills’ testimony, the court found in cham-
bers that the State had provided sufficient evidence to prove a
prima facie case of conspiracy and that “it may now get into
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the statements of . . . Boswell.” Defense counsel asked if “when
we start getting into the hearsay,” it could have a continuing
objection after making the first objection. The court granted the
continuing hearsay objection, which defense counsel explained
would be for any statements attributable to Boswell.
Hills resumed her testimony. She stated that Trail once
showed her Boswell’s “killing bag.” He had pulled out a ham-
mer, some pliers, and a sauna suit from the bag and showed
them to her. Trail told Hills she would get her own killing bag
“when it was time.” Trail said the sauna suit was so that they
would not get blood on themselves.
(ii) Golyakova
Golyakova testified at trial that in the late summer of 2017,
she met Boswell through a dating app. Boswell initially used
an alias. She was later introduced to Trail by Boswell, who
explained they were in an “open relationship.” She even
tually entered into a relationship with Trail and Boswell that
was somewhat similar to Hills’, but Boswell was in charge of
punishing her. Also, erotic asphyxiation was apparently not
involved. Golyakova soon told them she was not comfortable
with some of the rules, after which she no longer had to fol-
low them. Golyakova did household chores and assisted in the
antiques enterprise. Golyakova testified that she liked the idea
of someone taking care of her.
Trail spoke to Golyakova about having a coven and spe-
cial powers, but she did not believe him. Golyakova testi-
fied that Trail and Boswell eventually started talking to her
about whether she would be willing to torture and kill some-
one. They told her they wanted to make videos of people
being tortured, which they could sell. Trail and Boswell told
Golyakova that they could make $1 million, split it, and go
their separate ways. They sometimes also discussed murder-
ing someone in a certain manner, “like for sacrifices or some-
thing.” Trail and Boswell assured Golyakova that their victim
would be someone who had done bad things. Golyakova said
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she was not comfortable hurting anyone, and she left the
group in October.
(iii) Brandle
Brandle testified at trial that she met Boswell through a
dating app in October 2017. Boswell used an alias. Brandle
entered into a relationship with Boswell similar to the others,
except she was more focused on having a romantic relation-
ship with Boswell and did not want anything from Trail. She
understood that she was entering into a dominant-submissive
relationship and that Trail was part of a “package deal,” but
testified that there was no mention of choking. She had not
been in a dominant-submissive relationship before, but she
wanted to be with Boswell and decided to “give it a shot.” She
did not get directly involved in their antiques enterprise.
Brandle said there was some discussion of witches. Trail
told her that she was Boswell’s “familiar” and that they had
known each other in past lives. Trail also mentioned having
a coven of witches that she would meet someday. Trail told
Brandle she could ask for one wish, but she “would have to
pay the price.” Brandle explained that she was skeptical and
did not pursue that line of discussion. She was never told what
the “price” would be.
On November 13, 2017, Boswell complained about another
woman she claimed was stalking her and asked Brandle if
she would ever “kill for her.” During intercourse, while Trail
watched, Boswell asked Brandle if there was anyone she
“wanted to kill.” Boswell also asked Brandle to describe ways
someone could torture someone else. When the intercourse
became uncomfortable and Brandle wanted to stop, Trail told
her that it would stop if Brandle told Boswell what she wanted
to hear. Brandle testified that she tried to describe “torture
techniques” from the “Renaissance era” that she recalled learn-
ing about in school.
Brandle suffered an asthma attack and went back to her
home in Omaha, Nebraska. On the morning of November
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15, 2017, while Boswell was in the hardware store, Boswell
texted Brandle that she would be busy for the next couple
of days.
Brandle testified that she did not see Trail or Boswell again
until the afternoon of November 17, 2017. Brandle described
that on November 17, Trail and Boswell seemed quieter and
more tense than usual. Trail and Boswell picked Brandle up,
and they went to a hotel casino. Boswell showed Brandle a pic-
ture of a young woman whom she identified as her stalker and
asked Brandle to participate in her murder. Brandle initially
declined, but she accepted the proposition after Trail made
various threatening statements.
After participating in arrangements to leave Boswell’s car in
a store parking lot and taking a cab back to the hotel with the
idea that they would be using Brandle’s car for the supposed
murder they were planning, Trail told Brandle she did not
have to worry about participating anymore, because she had
already proved her loyalty. Trail and Boswell then convinced
Brandle to drive them across Nebraska for a supposed drug
deal. Brandle testified that Trail and Boswell continued to seem
tense and appeared to have quiet arguments.
Brandle testified that eventually either Trail or Boswell
suggested they were going to find someone to torture and
kill, as a way to make money. On November 21, 2017, during
intercourse at a hotel room, Boswell again asked Brandle to
talk about how people could be tortured. Brandle talked about
the same historical torture methods she had the previous time.
Boswell talked about dismembering people.
On November 22, 2017, Trail and Boswell had Brandle
drive them to Kearney, Nebraska. Trail and Boswell explained
they intended to find, as a victim, an exchange student who
was still around during the Thanksgiving holiday. Their
thinking, Brandle explained, was that such a victim would
be unlikely to be immediately missed. The idea was that
Boswell and Brandle would torture and murder the victim
while Trail watched. Brandle stated she tried to stay calm and
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cooperative because she believed that her family would be
hurt if she did not.
When a law enforcement officer left a voicemail on Brandle’s
phone and Trail was informed of that fact, they all left Kearney
without any further action toward attempting to identify a
potential murder victim. At that point, Trail and Boswell told
Brandle that a young woman was missing and that Boswell
was being falsely blamed because she was the last person seen
with the woman. Boswell cried and insisted she did not hurt
the missing woman.
Trail and Boswell eventually dropped Brandle off at a hotel
close to her home after Brandle learned from law enforce-
ment that her mother had filed a missing person report on
her. Brandle’s mother also informed her that her father was
gravely ill. Brandle told Trail and Boswell she wanted to
return home.
(d) Trail’s Testimony
Trail testified in his own defense. He stated at the outset
that he did not contest 85 percent of the prosecution’s case.
Trail said that in Trail and Boswell’s apartment, he and the
women he was involved with could talk about anything, “from
the mildest to the wildest” and “what you were is what you
were.” He and Boswell were not going to tell anyone they were
“wrong about anything.” He acknowledged “there was a lot of
talk in our house about killing people, torturing people.” Trail
claimed these were just fantasies.
Trail admitted that much, albeit not all, of his inspiration
in his discussions of these fantasies came from a book of fic-
tion about witchcraft where the characters torture people for
power. He did not believe this was true but thought the women
were interested in the discussions. Other discussions about
reincarnation and “spiritual” witches and vampires reflected
his personal beliefs.
Trail claimed that he met Sydney in the spring of 2017
while she was working at the hardware store and that
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Boswell met her about a week later. Trail described that
Sydney and Boswell developed a romantic relationship and
that Sydney was paid for participation in Trail’s illegal mon-
eymaking schemes. Sydney ended her arrangement with Trail
in September 2017.
Trail testified that in November 2017, Boswell asked Trail if
she could reach out to Sydney through the dating app she was
on. Sydney was upset when Boswell picked her up for their
first date and Sydney realized who her date was. But Boswell
convinced Sydney to consider “coming back and being with
us,” and they arranged a second date. Trail described the items
purchased on November 15 as intended for the repair and
cleaning of antiques.
According to Trail, Sydney went to the Wilber apartment on
the evening of November 15, 2017, to discuss the possibility
of rejoining the group. During that conversation, Trail asked
Sydney to either answer or turn off her phone. Sydney turned
off the phone.
Trail testified that Sydney eventually agreed to experiment
that night with erotic asphyxiation wherein Trail would hold
a cord connected to a ligature while Sydney and Boswell
engaged in sexual intercourse. And during these activities,
Sydney appeared to have a seizure, stopped breathing, and
died. Trail said he did not intend to kill Sydney. He explained
that doing so would be “counter-productive,” because he used
people for sex and to make money.
Trail testified he did not call an ambulance because he had
an extensive criminal history and had illegal drugs and stolen
goods in the apartment. He dismembered Sydney’s body as a
means of fitting it into a trunk to remove it from their apart-
ment without being noticed. He denied removing Sydney’s
internal organs. He dumped the trash bags containing Sydney’s
body in the location where they were eventually discovered by
law enforcement.
Trail described fleeing with Brandle’s assistance, claim-
ing that looking for an exchange student as a potential victim
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was simply part of a fantasy they never intended to act upon.
Likewise, he claimed the prior discussion with Hills about
killing the woman he met at a store was just a fantasy. In fact,
Trail claimed he told Hills the woman had moved to California
“[b]ecause the crazy bitch wanted to kill her.” He said he was
afraid she would actually do it and wanted to prevent that
from happening.
5. Courtroom Disruption
The trial lasted approximately 3 weeks. On the third day
of trial, around 10:30 a.m., after a witness was sworn in but
before she testified, Trail, seated at the counsel table, yelled,
“[Boswell] is innocent, and I curse you all.”
Immediately thereafter, Trail made a couple of slashing ges-
tures at his neck. Some blood was visible. Trail had secreted
a razor blade into the courtroom and had used it to inflict
wounds to his neck. The jury was immediately cleared from
the courtroom, and law enforcement and medical personnel
took over.
The judge told counsel that trial would be reconvened after
the jury was instructed to “disregard the outburst.” Defense
counsel moved for a mistrial, arguing the jury would be preju-
diced against Trail in determining the aggravator of having
a history of serious assaultive or terrorizing criminal activ-
ity. The court stated it would determine whether a mistrial
was warranted after individually interviewing the members of
the jury.
The court instructed the jury “to disregard the outburst that
you heard this morning and to not consider it in your delibera-
tions at the end of the trial.” Thereafter, each juror was indi-
vidually questioned by the trial judge in chambers with counsel
present. The court generally asked each juror if the juror had
heard the curative instruction and believed he or she could
remain fair and impartial and follow that instruction. Several
jurors were asked if the events of the day affected their ability
to remain a fair and impartial juror.
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Each juror assured the court that he or she could remain
fair and impartial. The court directed each juror to bring it
to the court’s attention if the juror later came to the conclu-
sion that the juror could no longer be fair and impartial. None
ever did.
The court overruled the motion for mistrial.
6. Motion for New Trial
The jury found Trail guilty of first degree murder and of
conspiracy to commit first degree murder. After the verdict,
defense counsel moved for a new trial on the grounds that
Trail was prevented from having a fair trial due to the court’s
rulings on several issues. However, Trail has only appealed
the denial of his motion as related to defense counsel’s
motion for mistrial following Trail’s verbal outburst and act
of self-harm.
With respect to Trail’s disruption in front of the jury, defense
counsel argued that, but for a lack of security measures, the
incident could have been prevented. This negligence, argued
defense counsel, “contributed to the severity of the event
and elevated it to the level that required a mistrial.” Defense
counsel also argued that the act of violence prejudiced the jury
against Trail inasmuch as it was contrary to the argument that
Trail was incapable of violence.
While the court’s ruling was pending, the State moved to
adduce additional evidence that it argued would show Trail’s
actions were calculated to disrupt the trial. The State asked
that the evidence be under seal, as it involved law enforcement
intelligence, courtroom security, and officer safety. Defense
counsel responded that he did not object and was tentatively
planning on offering the same or similar evidence as newly
discovered evidence in support of the motion for new trial. At a
later date, several exhibits were marked, offered, and received
under seal.
The court ultimately denied the motion for new trial, observ-
ing that Trail had not produced any evidence that the act of
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self-harm prejudiced him. The court found that the self-harm
was “a calculating gesture resulting in superficial cuts.”
7. Constitutionality of Panel Findings of
Sufficiency and Relative Weight of
Aggravating Circumstances
After the verdict, defense counsel waived Trail’s right to
a jury for the aggravation sentencing phase. Defense counsel
then moved to declare Nebraska’s death penalty statutes uncon-
stitutional, in violation of the Sixth and Eighth Amendments to
the U.S. Constitution and articles 1 through 6 of the Nebraska
Constitution. Defense counsel asserted that the sentencing pan-
el’s factual findings regarding the relative weight of the aggra-
vating and mitigating circumstances are facts increasing the
penalty for a crime beyond the prescribed statutory maximum
and must, therefore, be submitted to a jury. Defense counsel
also argued that Nebraska is an “outlier” by permitting the
determination of the death penalty to be made by a judicial
panel, rather than a jury, and that the “noticeable trend away
from judicial death sentencing” is strong evidence that soci-
ety does not regard such a procedure to be proper or humane.
Finally, according to defense counsel, a determination by a jury
of the relative weight of the aggravators and mitigators is nec-
essary to satisfy the Eighth Amendment’s heightened reliability
standards for capital punishment because the consensus of 12
jurors is less arbitrary and better expresses the conscience of
the community on the ultimate question of life or death. The
trial court treated the motion as a motion to quash and ulti-
mately found that it lacked merit and denied it.
8. Sentencing
Pursuant to Neb. Rev. Stat. § 29-2521(2) (Cum. Supp. 2020),
a sentencing hearing before a three-judge panel was held. The
panel found the State had proved beyond a reasonable doubt
the aggravating factor that the murder manifested exceptional
depravity by ordinary standards of morality and intelligence.
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This was supported by the fact that Sydney’s murder reflected
cold, calculated planning beyond the mere premeditation nec-
essary to support a conviction of first degree murder.
The panel also found to be present four out of the five factors
for a finding of exceptional depravity: (1) apparent relishing of
the murder by the killer, (2) infliction of gratuitous violence on
the victim, (3) needless mutilation of the victim, (4) senseless-
ness of the crime, or (5) helplessness of the victim. 2 The panel
explained that the mutilation of Sydney’s body made it impos-
sible to determine if Trail had inflicted upon Sydney gratuitous
violence beyond that necessary to inflict death, but all of the
other four factors were present. First, Trail’s actions before and
after the murder demonstrated he relished the act, having no
regard for Sydney’s life beyond his own pleasure. Second, the
needless mutilation of Sydney’s body demonstrated that Trail
had a mental state “senselessly bereft of any regard for human
life.” Third, noting that Sydney posed no threat to Trail and
Boswell, had no idea she was being led to an encounter with a
“man twice her size,” and was unable to defend herself or seek
help at the time of the murder, the panel found that Sydney
was a helpless victim. For similar reasons, the panel found that
her murder was completely unnecessary and senseless. Further,
the panel found that Trail had the capacity to appreciate the
wrongfulness of his conduct and to conform his conduct to
the requirements of the law.
The panel found no statutory mitigating factor or circum-
stances existed. The only statutory mitigating factor alleged by
Trail was that the “victim was a participant in the defendant’s
conduct or consented to the act,” as set forth in Neb. Rev. Stat.
§ 29-2523(2)(f) (Cum. Supp. 2020). The panel found this miti-
gating circumstance did not exist.
As a nonstatutory mitigating circumstance, the panel rec-
ognized Trail’s bad childhood and disadvantaged upbringing.
His parents left him when he was 2 years old, after which
2
State v. Palmer, 224 Neb. 282, 399 N.W.2d 706 (1986).
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time he lived for several years with grandparents who “had a
poor attitude toward the law.” When his mother later married,
Trail was adopted by his stepfather, who was abusive. Trail
spent his teenage years in troubled environments, including
a juvenile detention facility. He was incarcerated for the first
time at age 17 and has spent most of his life incarcerated or
on parole.
In weighing the aggravating circumstance against the exist-
ing nonstatutory mitigating factor, the panel found that—given
the degree of cold, calculated planning; the relishing of the
murder; and the mutilation of the victim, all demonstrating an
“extreme depravity in the mind of . . . Trail”—the aggravating
circumstance was entitled to great weight. The panel found
the weight of the nonstatutory mitigating circumstance of
Trail’s bad childhood and disadvantaged upbringing “does not
approach or exceed the weight of the overwhelming evidence
supporting the aggravating circumstance of exceptional deprav-
ity found in this case.”
Finally, the panel found in its review under Neb. Rev. Stat.
§ 29-2522(3) (Cum. Supp. 2020) that the sentence of death
would not be excessive or disproportionate to the penalty
imposed in similar cases, considering both the crime and the
defendant. It noted cases such as State v. Torres, 3 State v.
Joubert, 4 State v. Moore, 5 and State v. Williams. 6
For his conviction of first degree murder, the panel sen-
tenced Trail to death. The presiding judge sentenced Trail
to 2 years’ incarceration for the improper disposal of human
skeletal remains and to 50 years’ incarceration for conspiracy
to commit first degree murder, both to run consecutively
to the murder conviction. Trail, represented by trial coun-
sel, appeals.
3
State v. Torres, 283 Neb. 142, 812 N.W.2d 213 (2012).
4
State v. Joubert, 224 Neb. 411, 399 N.W.2d 237 (1986).
5
State v. Moore, 210 Neb. 457, 316 N.W.2d 33 (1982).
6
State v. Williams, 205 Neb. 56, 287 N.W.2d 18 (1979).
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III. ASSIGNMENTS OF ERROR
Trail assigns that the district court erred in (1) “death
qualifying” the jury; (2) denying his pretrial motion to sever;
(3) allowing an identified witness to remain in the courtroom
during trial, in violation of the court’s own sequestration
order; (4) denying his motion for mistrial; and (5) denying his
motion for new trial. He also assigns that the sentencing panel
erred when balancing the aggravating circumstances against
the mitigating circumstances and by concluding that his case
merits death when compared to similar cases. He asserts that
Nebraska’s death penalty statutory scheme violates the Sixth
and Eighth Amendments to the U.S. Constitution and articles
1 through 6 and 1 through 9 of the Nebraska Constitution,
because it permits judges, not juries, to make the factual find-
ings necessary to impose death sentences.
IV. STANDARD OF REVIEW
[1] A denial of a motion to sever will not be reversed unless
clear prejudice and an abuse of discretion are shown, and an
appellate court will find such an abuse only where the denial
caused the defendant substantial prejudice amounting to a mis-
carriage of justice. 7
[2] It is for the trial court to determine the extent to which a
sequestration order will be applied in a given case. 8
[3] An appellate court will not disturb a trial court’s deci-
sion whether to grant a motion for mistrial unless the court has
abused its discretion. 9
[4] In a criminal case, a motion for new trial is addressed
to the discretion of the trial court, and unless an abuse of
discretion is shown, the trial court’s determination will not be
disturbed. 10
7
State v. Henry, 292 Neb. 834, 875 N.W.2d 374 (2016).
8
State v. Swillie, 218 Neb. 551, 357 N.W.2d 212 (1984).
9
State v. Figures, 308 Neb. 801, 957 N.W.2d 161 (2021).
10
State v. Hairston, 298 Neb. 251, 904 N.W.2d 1 (2017).
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[5] The constitutionality of a statute presents a question of
law, which an appellate court independently reviews. 11
[6] In reviewing a sentence of death, the Nebraska Supreme
Court conducts a de novo review of the record to determine
whether the aggravating and mitigating circumstances support
the imposition of the death penalty. 12
V. ANALYSIS
On direct appeal, Trail challenges the denial of his pretrial
motions to prevent death qualification of the jury and to sever
the conspiracy and murder charges. He argues that the district
court erred during trial by releasing the victim’s mother from
sequestration after she testified and by denying his motion
for a mistrial based on his verbal outburst and self-harm. He
asserts that, after trial, the court erred in denying his motion
for a new trial based on that same incident. Finally, Trail
asserts the Nebraska death penalty statutes under which he
was sentenced are unconstitutional. Alternatively, he asserts
the three-judge panel erred in determining the sentence of
death was not excessive or disproportionate to the penalty
imposed in similar cases. We address each of these arguments
in turn.
1. Death Qualification
Trail argues the district court abused its discretion in inform-
ing the venire the death penalty was a potential sentence,
which led to questioning potential jurors about their ability to
remain fair and impartial despite their views on the death pen-
alty, which led to removing jurors for cause when they could
not remain fair and impartial. In other words, he challenges the
death qualification of the jury.
Trail asserts the exclusion of prospective jurors who were
opposed to capital punishment subjected him to a trial before
11
State v. Jenkins, 303 Neb. 676, 931 N.W.2d 851 (2019).
12
State v. Schroeder, 305 Neb. 527, 941 N.W.2d 445 (2020).
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a more “conviction-prone” 13 jury than he would have had
without death qualification. He does not necessarily take issue
with the premise that views on capital punishment can interfere
with certain potential jurors’ ability to perform their duties, but
claims death qualification is unnecessary in Nebraska because
jurors do not impose the sentence. He claims the jury can
remain unbiased without death qualification because “it is pos-
sible to keep the issue of the death penalty out of the jurors’
minds all together.” 14
While Trail acknowledges Neb. Rev. Stat. § 29-2006(3)
(Cum. Supp. 2020) states that having opinions “such as to pre-
clude [a juror] from finding the accused guilty of an offense
punishable with death” is good cause to challenge the juror,
he describes this as a “relic from a time period in Nebraska
history during which it was widely known that the penalty for
murder was a mandatory death sentence.” 15 Trail asserts unnec-
essary death qualification violates the heightened reliability
standard applicable to capital cases under the 8th Amendment
to the U.S. Constitution and article I, §§ 9 and 15, of the
Nebraska Constitution; equal protection principles embodied in
the 14th Amendment to the U.S. Constitution and article I, § 3,
of the Nebraska Constitution; and the 6th Amendment right to
a jury trial.
(a) Sixth Amendment
The Sixth Amendment provides in pertinent part: “In all
criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and
district wherein the crime shall have been committed . . . .”
The 6th Amendment is applicable to the States through the
14th Amendment.
13
Brief for appellant at 20.
14
Id. at 16.
15
Id. at 17-18.
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[7-9] The Sixth Amendment secures to criminal defendants
the right to be tried by an impartial jury drawn from sources
reflecting a fair cross-section of the community. 16 The fair-cross-
section venire requirement is not explicit in the text of the Sixth
Amendment, but is derived from the traditional understanding
of how an “impartial jury” is assembled. 17 The Constitution
presupposes that a jury selected from a fair cross-section of the
community is impartial. 18 The “‘representativeness’” constitu-
tionally required at the venire stage can be disrupted at the jury-
panel stage to serve a State’s “‘legitimate interest.’” 19
The U.S. Supreme Court has produced a body of case law
under the Sixth Amendment holding the State has a legitimate
interest in death qualifying juries that are directly involved in
capital sentencing. It has not addressed death qualification out-
side of that context.
The Court has expressly declined to conclude, as a matter of
judicial notice or on the records presented to it, that, in the con-
viction phase of trial, the exclusion of jurors opposed to capital
punishment results in an unrepresentative jury on the issue of
guilt or substantially increases the risk of conviction. 20 Even
assuming without deciding death qualification “‘slants’” 21 the
jury in favor of conviction, the Court has repeatedly held it
serves a proper purpose to exclude jurors whose views on capi-
tal punishment interfere with their ability to obey their oath
during the sentencing phase of trial. 22
16
Berghuis v. Smith, 559 U.S. 314, 130 S. Ct. 1382, 176 L. Ed. 2d 249
(2010).
17
Holland v. Illinois, 493 U.S. 474, 110 S. Ct. 803, 107 L. Ed. 2d 905
(1990).
18
Lockhart v. McCree, supra note 1.
19
Holland v. Illinois, supra note 17, 493 U.S. at 483.
20
Witherspoon v. Illinois, 391 U.S. 510, 88 S. Ct. 1770, 20 L. Ed. 2d 776
(1968).
21
Lockhart v. McCree, supra note 1, 476 U.S. at 179.
22
See Lockhart v. McCree, supra note 1.
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The Court has explained there must be a balance between
the interests of the defendant and of the State in a capital case.
While a criminal defendant has the right to an impartial jury
drawn from a venire that has not been “tilted” 23 in favor of
capital punishment by selective prosecutorial challenges for
cause, the State has a strong interest in having jurors who are
able to apply capital punishment within the framework state
law prescribes. To balance these interests, a juror who is sub-
stantially impaired in the ability to impose the death penalty
can be excused by the State for cause while a juror who is not
thereby substantially impaired cannot be excused for cause. 24
Similarly, a juror who is substantially impaired in the ability to
choose life imprisonment can be excused by the defendant for
cause, while a juror who is in favor of the death penalty but
who is not thereby substantially impaired cannot be excused
for cause. 25
[10] In order to meaningfully effectuate these constitutional
protections, there must be an adequate voir dire. 26 The U.S.
Supreme Court has held that in a capital case where the jury
is directly involved in sentencing, this entails the opportunity
to inquire into whether views on the death penalty would dis-
qualify prospective jurors from sitting. 27 General questions
as to prospective jurors’ ability to remain fair and impartial
and to follow the law are inadequate substitutes for more spe-
cific questions, when requested, as to whether the jurors are
“unalterably in favor of, or opposed to, the death penalty in
every case.” 28
23
Uttecht v. Brown, 551 U.S. 1, 9, 127 S. Ct. 2218, 167 L. Ed. 2d 1014
(2007).
24
Id.
25
See, Morgan v. Illinois, 504 U.S. 719, 112 S. Ct. 2222, 119 L. Ed. 2d 492
(1992); Ross v. Oklahoma, 487 U.S. 81, 108 S. Ct. 2273, 101 L. Ed. 2d 80
(1988).
26
See id. See, also, Lockhart v. McCree, supra note 1.
27
See Morgan v. Illinois, supra note 25.
28
Id., 504 U.S. at 735.
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In Lockhart v. McCree, 29 the Supreme Court held that even
though death qualification is more directly pertinent to the
penalty phase, it did not violate the Sixth Amendment to death
qualify a jury before the guilt phase of a capital trial. The
Court said in Witherspoon v. Illinois 30 that the State “crossed
the line of neutrality” by systematically excluding for cause
members of the venire who had general scruples against capital
punishment but who could nevertheless obey their oaths 31 and
said that culling all jurors “who harbor doubts about the wis-
dom of capital punishment,” but who were nevertheless capa-
ble of obeying their oath, produces a jury that does not “speak
for the community” and is “uncommonly willing to condemn
a man to die.” 32 The Court in McCree pointed out its state-
ments in Witherspoon were in the context of a system where
the jury had considerable discretion at sentencing. Regardless,
McCree explained a narrower elimination for cause of jurors
who are unable to apply the law to the facts because of their
beliefs on capital punishment does not similarly cross the line
of neutrality. 33
[11,12] Even assuming for purposes of its opinion that death-
qualified juries are “somewhat more ‘conviction-prone,’” 34 the
Court in McCree explained that “groups defined solely in terms
of shared attitudes that would prevent or substantially impair
members of the group from performing one of their duties as
jurors . . . are not ‘distinctive groups’ for fair-cross-section
29
Lockhart v. McCree, supra note 1.
30
Witherspoon v. Illinois, supra note 20.
31
Id., 391 U.S. at 520. See Adams v. Texas, 448 U.S. 38, 100 S. Ct. 2521, 65
L. Ed. 2d 581 (1980). See, also, Gray v. Mississippi, 481 U.S. 648, 107 S.
Ct. 2045, 95 L. Ed. 2d 622 (1987); Wainwright v. Witt, 469 U.S. 412, 105
S. Ct. 844, 83 L. Ed. 2d 841 (1985).
32
Id., 391 U.S. at 520, 521. See, also, Adams v. Texas, supra note 31; Gray
v. Mississippi, supra note 31; Wainwright v. Witt, supra note 31.
33
Lockhart v. McCree, supra note 1.
34
Id., 476 U.S. at 173.
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purposes.” 35 In order to establish a prima facie violation of the
fair-cross-section requirement under the Sixth Amendment, a
defendant must show (1) that the group alleged to be excluded
is a “distinctive” group in the community, (2) that the represen-
tation of this group in venires from which juries are selected
is not fair and reasonable in relation to the number of such
persons in the community, and (3) that this underrepresentation
is due to systematic exclusion of the group in the jury selec-
tion process. 36
[13,14] The Court reiterated an impartial jury is “nothing
more than jurors who will conscientiously apply the law and
find the facts.” 37 “[I]t is simply not possible to define jury
impartiality, for constitutional purposes, by reference to some
hypothetical mix of individual viewpoints.” 38 Also, the Court
noted the same allegedly conviction-prone individuals could
end up on the defendant’s jury through “‘luck of the draw.’”
It did not “understand the logic of the argument that a given
jury is unconstitutionally partial when it results from a state-
ordained process, yet impartial when exactly the same jury
results from mere chance.” 39 Beliefs with respect to the death
penalty, said the Court, are within the individual’s control.
Death qualification does not create an appearance of unfair-
ness, as it only results in the removal for cause of those jurors
who are unwilling “to temporarily set aside their own beliefs in
deference to the rule of law.” 40
Death qualification before the guilt phase, said the Court,
serves a legitimate state interest in obtaining a single jury
35
Id., 476 U.S. at 174.
36
Duren v. Missouri, 439 U.S. 357, 99 S. Ct. 664, 58 L. Ed. 2d 579 (1979).
37
Lockhart v. McCree, supra note 1, 476 U.S. at 178 (internal quotation
marks omitted).
38
Id., 476 U.S. at 183.
39
Id., 476 U.S. at 178.
40
Id.
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that can properly and impartially apply the law to the facts
of the case at both the guilt and sentencing phases of a
capital trial. 41 Given that much of the same evidence would
be presented at both phases of the capital trial, it served
the interests both of the prosecution and of the defense to
avoid the burden of having to present the evidence and tes-
timony twice. 42 This is balanced against the fact that there is
less concern during the conviction stage of the effect of an
imbalanced jury. The Court explained, “[J]ury discretion is
more channeled” in its more traditional role of finding the
facts and determining the guilt or innocence of a criminal
defendant. 43
In Buchanan v. Kentucky, 44 the Court extended its rationale
from McCree to hold that the constitutional rights of a non-
capital defendant were not violated by death qualification of
the jury before the guilt phase of a joint trial with a capital
codefendant. The Court said the state has a significant interest
in having a joint trial of defendants when the crimes charged
arise out of one chain of events. The joint trial may benefit
the noncapital defendant as well. 45 In joint trials, the “jury
obtains a more complete view of all the acts underlying the
charges than would be possible in separate trials” and “may
be able to arrive more reliably at its conclusions regarding
the guilt or innocence of a particular defendant and to assign
fairly the respective responsibilities of each defendant in the
sentencing.” 46 Furthermore, the State has a genuine interest in
avoiding the burden of presenting the same evidence to different
41
See Lockhart v. McCree, supra note 1.
42
See id.
43
Id., 476 U.S. at 183.
44
Buchanan v. Kentucky, 483 U.S. 402, 107 S. Ct. 2906, 97 L. Ed. 2d 336
(1987).
45
See id.
46
Id., 483 U.S. at 418.
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juries for different defendants charged with crimes arising from
the same events. 47
The Court said in Buchanan that these interests in a joint
trial, combined with the interest discussed in McCree in
having the same jury for the guilt and penalty phases of a
capital defendant’s trial, “argue[] strongly in favor of permit-
ting ‘death qualification’ of the jury.” 48 It also reiterated that
any concern about the possible effect of an allegedly imbal-
anced jury was not present because of the limited nature of
the jury’s discretion in the trial, which was generally more
“channeled than at a capital-sentencing proceeding.” 49 At sen-
tencing, under the statutory scheme at issue in Buchanan, the
jury’s sentence was limited to specific statutory sentences and
subject to review by the judge. In light of the presupposition in
Buchanan that jury members selected from a fair cross-section
of the community are impartial so long as they can properly
carry out their duties, as well as the State’s significant interests
in the joint trial, the Court held there was no violation of the
noncapital defendant’s 6th and 14th Amendments right to an
impartial jury.
Trail correctly points out that a panel of judges, rather than
the jury, decides the defendant’s punishment in capital cases
in Nebraska. 50 This has long been true. Accordingly, we have
acknowledged the death-qualification case law of the U.S.
Supreme Court is factually distinguishable; the juries in those
cases ultimately determined the sentence. 51 Nonetheless, we
have not been persuaded that this factual distinction is deter-
minative of Sixth Amendment challenges in capital cases in
Nebraska where juries have decided if any of the alleged
47
Id.
48
Id., 483 U.S. at 419-20.
49
Id., 483 U.S. at 420.
50
See 1973 Neb. Laws, L.B. 268.
51
See, State v. Bird Head, 225 Neb. 822, 408 N.W.2d 309 (1987); State v.
Burchett, 224 Neb. 444, 399 N.W.2d 258 (1986).
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aggravating circumstances were proved beyond a reasonable
doubt. 52 In this context, we have specifically rejected the
argument that it is unconstitutional to death qualify juries in
capital cases in Nebraska because those juries do not ultimately
decide if the sentence shall be life or death. 53 Instead, we have
repeatedly held under the Sixth Amendment that it is permis-
sible to determine during voir dire whether jurors’ views on
capital punishment would prevent or substantially impair their
ability to impartially apply the law to the evidence—and to
exclude them for that reason. 54
Our case law on death qualification has not explicitly
addressed the argument raised by Trail in this appeal that the
State lacks a legitimate interest in death qualifying the venire
because it can ensure jurors’ beliefs will not interfere with
their duties by never telling them they are sitting in a capital
case. This novel argument does not cause us to question our
prior holdings.
We cannot, as Trail implicitly suggests, presume potential
jurors come to the jury pool ignorant of the law. To the con-
trary, jurors, as citizens of this state, are presumably aware the
law provides for the death penalty as a possible punishment
for murder under certain circumstances. And the circumstances
making the death penalty a legal possibility are likely to
become apparent during the course of the State’s presentation
of the evidence at trial. While the jurors will not know with
certainty whether the State has in fact alleged an aggravator in
any given case, they will not have the level of ignorance Trail
believes possible.
52
See id. See, also, State v. Nesbitt, 264 Neb. 612, 650 N.W.2d 766 (2002);
State v. Bradley, 236 Neb. 371, 461 N.W.2d 524 (1990); State v. Hankins,
232 Neb. 608, 441 N.W.2d 854 (1989); State v. El-Tabech, 225 Neb. 395,
405 N.W.2d 585 (1987); State v. Peery, 223 Neb. 556, 391 N.W.2d 566
(1986); State v. Rust, 223 Neb. 150, 388 N.W.2d 483 (1986); State v.
Reeves, 216 Neb. 206, 344 N.W.2d 433 (1984); State v. Williams, supra
note 6.
53
Id.
54
See id.
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[15] Even if the jurors could be sufficiently ignorant of the
capital implications of a conviction at the guilt phase of trial,
once they are asked to determine if the State has proved an
aggravating circumstance beyond a reasonable doubt, any juror
knowledgeable of the law will understand it is a capital case.
And just as the U.S. Supreme Court has described the State’s
interest in having the same jury for the guilt and sentencing
phases and jointly trying a capital defendant and a noncapital
defendant in charges arising out of the same events, the State
has an interest in having the same jury determine both the
defendant’s guilt or innocence and the alleged aggravating
circumstances that, if found, will permit a three-judge panel
to impose the death penalty. The State has a legitimate inter-
est in avoiding the burden of presenting the same evidence to
different juries for the guilt phase and the aggravation phase
of trial. Thus, the State has an interest in determining at voir
dire whether any jurors will be unable to perform their duties
at the aggravation phase of the trial. In other words, the State
has a legitimate interest in death qualifying juries in capital
cases in Nebraska.
There is a presupposition that a jury selected from a fair
cross-section of the community is impartial despite a mix of
viewpoints. Groups defined by belief systems that substan-
tially impair persons from performing their duties as jurors are
not distinctive groups for fair-cross-section purposes. Even if
we assume the result of death qualification is a slightly more
conviction-prone jury, the State has a legitimate interest in
eliminating from the venire those jurors who cannot carry out
their duties because of their views. When the death penalty
cannot be imposed before the jury decides if an aggravating
circumstance exists, then the State has a reason to question
whether views on the death penalty will interfere with that
task, and to question the venire accordingly. Moreover, jurors’
discretion is much more channeled during the guilt and aggra-
vation stages of trial than at the ultimate sentencing hearing by
the three-judge panel.
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[16] We hold that the State does not violate the Sixth
Amendment right to an impartial jury by death qualifying the
jury before a trial wherein it has alleged an aggravator that,
if found by the jury, will make the defendant eligible for the
death penalty. Although Trail ultimately waived his right to a
jury determination of the alleged aggravator, he did so only
after the verdict and after the district court rejected his chal-
lenges to death qualification.
(b) Equal Protection
[17] We also disagree with Trail’s argument that death qual-
ification in Nebraska violates equal protection. The Nebraska
Constitution and the U.S. Constitution have identical require-
ments for equal protection challenges. 55 The Equal Protection
Clause of the 14th Amendment, § 1, mandates that no state
shall “deny to any person within its jurisdiction the equal
protection of the laws.” This clause does not forbid classifi-
cations; it simply keeps governmental decisionmakers from
treating differently persons who are in all relevant aspects
alike. 56 When a classification created by state action does not
jeopardize the exercise of a fundamental right or categorize
because of an inherently suspect characteristic, the Equal
Protection Clause requires only that the classification ratio-
nally further a legitimate state interest. 57 In equal protection
challenges, the burden is on a defendant to “‘prove the exis-
tence of purposeful discrimination.’” 58
Trail asserts death qualification creates a classification
between capital defendants and noncapital defendants when
it subjects capital defendants to allegedly conviction-prone
55
Citizens for Eq. Ed. v. Lyons-Decatur Sch. Dist., 274 Neb. 278, 739
N.W.2d 742 (2007).
56
Sherman T. v. Karyn N., 286 Neb. 468, 837 N.W.2d 746 (2013).
57
Citizens for Eq. Ed. v. Lyons-Decatur Sch. Dist., supra note 55.
58
Batson v. Kentucky, 476 U.S. 79, 93, 106 S. Ct. 1712, 90 L. Ed. 2d 69
(1986).
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juries that noncapital defendants do not have. He asserts that
because jurors can be kept in ignorance of the capital implica-
tions of their factfinding, such classification does not ratio-
nally further a legitimate state interest. Trail has not proved
purposeful discrimination.
We have already rejected Trail’s argument that the jury
can effectively be suspended in ignorance of the possibility
of the death penalty. And we note that in McCree, the U.S.
Supreme Court implicitly disagreed with the idea that the
death qualification of a jury is subject to heightened scrutiny. 59
The Court explicitly distinguished the exclusion of jurors who
have decided that their personal views would not allow them
to impose the death penalty from prior cases finding unconsti-
tutional the wholesale exclusion of individuals of a particular
skin color, ethnic heritage, or gender.
As discussed, the State is entitled to a jury that is capable
of performing its duties. Excluding prospective jurors based
on voluntary belief systems that render them unable to per-
form their duties does not create an appearance of unfairness.
For purposes of inquiry into views on capital punishment,
capital cases and noncapital cases are different. Views on
capital punishment are relevant to the ability of jurors to obey
their oaths in capital cases. We find no merit to Trail’s argu-
ment that death qualification of the jury violated his rights to
equal protection.
(c) Heightened Reliability Under Eighth Amendment
to U.S. Constitution and Article I, §§ 9 and 15,
of Nebraska Constitution
Trail makes one conclusory statement that death qualifica-
tion violates the heightened reliability required by the Eighth
Amendment to the U.S. Constitution and article I, §§ 9 and
15, of the Nebraska Constitution. Conclusory assertions unsup-
ported by coherent analytical argument fail to satisfy the
59
See Lockhart v. McCree, supra note 1.
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requirement of arguing an assigned error to obtain consider-
ation by an appellate court. 60
[18] In the absence of analytical support, we hold the
Eighth Amendment and article I, §§ 9 and 15, of the Nebraska
Constitution are not violated by death qualification in a
capital case. We note the U.S. Supreme Court’s opinion in
Witherspoon, which, as discussed, set constitutional limits on
excusing jurors for cause because of their beliefs on capital
punishment, was based in the Sixth Amendment and nowhere
implied the Eighth Amendment is implicated. 61 The Eighth
Amendment states: “Excessive bail shall not be required,
nor excessive fines imposed, nor cruel and unusual punish-
ments inflicted.” The 14th Amendment applies those restric-
tions to the States. 62 Under article I, § 9, of the Nebraska
Constitution:
All persons shall be bailable by sufficient sureties,
except for treason, sexual offenses involving penetration
by force or against the will of the victim, and murder,
where the proof is evident or the presumption great.
Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishment inflicted.
Article I, § 15, states all penalties shall be proportioned to
the nature of the offense. Under the Eighth Amendment, “the
qualitative difference of death from all other punishments
requires a correspondingly greater degree of scrutiny of the
capital sentencing determination.” 63 None of these provisions
are violated by the process of death qualifying the jury so that
the members of the venire are capable of performing their
duties despite their personal views on capital punishment.
60
See State v. Chase, 310 Neb. 160, 964 N.W.2d 254 (2021).
61
See Witherspoon v. Illinois, supra note 20.
62
Hall v. Florida, 572 U.S. 701, 134 S. Ct. 1986, 188 L. Ed. 2d 1007 (2014).
63
Calwell v. Mississippi, 472 U.S. 320, 329, 105 S. Ct. 2633, 86 L. Ed. 2d
231 (1985) (internal quotation marks omitted).
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(d) § 29-2006(3) Applicable Only
to Capital Indictments
In the course of arguing the district court erred in death
qualifying the jury, Trail asserts that § 29-2006(3) is inappli-
cable because, on the information alone, he was not eligible for
the death penalty. Section 29-2006(3) states:
The following shall be good causes for challenge to
any person called as a juror or alternate juror, on the trial
of any indictment: . . . (3) in indictments for an offense
the punishment whereof is capital, that his opinions are
such as to preclude him from finding the accused guilty
of an offense punishable with death . . . .
According to Trail, this is not a trial, described by § 29-2006(3),
“in indictments for an offense the punishment whereof is capi-
tal” because the death penalty was only a sentencing option
upon the State’s noticing and proving, after the merits phase,
additional facts at an aggravation hearing.
But Trail does not appeal the district court’s excusal of any
potential juror for cause under § 29-2006(3), and the State’s
interest in and constitutionality of death qualification does not
depend upon a statutory provision. Therefore, we need not
address Trail’s unique view that he was not charged with “an
offense the punishment whereof is capital” for purposes of
§ 29-2006(3) because the matters making him death eligible
were determined after the merits phase of the trial. Regardless
of whether that was the case, Trail was given timely notice
in the information that the State was planning on proving an
aggravating circumstance and the district court did not err in
death qualifying the jury for Trail’s trial.
2. Motion to Sever Murder
and Conspiracy Charges
Having found no merit to Trail’s challenges to death qualifi-
cation of the jury, we turn to his assignment that the court erred
by refusing to sever the trials on the charges for first degree
murder and conspiracy to commit first degree murder.
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[19,20] There is no constitutional right to a separate trial. 64
Instead, the joinder or separation of charges for trial is gov-
erned by § 29-2002, which states, in relevant part:
(1) Two or more offenses may be charged in the same
indictment, information, or complaint in a separate count
for each offense if the offenses charged, whether felonies
or misdemeanors, or both, are of the same or similar
character or are based on the same act or transaction or
on two or more acts or transactions connected together or
constituting parts of a common scheme or plan.
....
(3) If it appears that a defendant or the state would
be prejudiced by a joinder of offenses in an indictment,
information, or complaint . . . the court may order an
election for separate trials of counts, indictments, infor-
mations, or complaints, grant a severance of defendants,
or provide whatever other relief justice requires.
In summary, whether offenses were properly joined involves a
two-stage analysis: (1) whether the offenses were sufficiently
related to be joinable and (2) whether the joinder was prejudi-
cial to the defendant. 65 There is a strong presumption against
severing properly joined counts. 66
[21-23] Trail does not contest that the offenses were suf-
ficiently related to be joinable, but, rather, he asserts the join-
der was prejudicial. A denial of a motion to sever will not be
reversed unless clear prejudice and an abuse of discretion are
shown, and an appellate court will find such an abuse only
where the denial caused the defendant substantial prejudice
amounting to a miscarriage of justice. 67 A defendant appealing
the denial of a motion to sever has the burden to show compel-
ling, specific, and actual prejudice. 68 Severe prejudice occurs
64
State v. Benson, 305 Neb. 949, 943 N.W.2d 426 (2020).
65
Id.
66
Id.
67
State v. Henry, supra note 7.
68
State v. Benson, supra note 64.
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when a defendant is deprived of an appreciable chance for an
acquittal, a chance that the defendant would have had in a sev-
ered trial. 69 Prejudice from joinder cannot be shown if evidence
of one charge would have been admissible in a separate trial of
another charge. 70
Trail argues he was prejudiced by the joinder because “it
is likely that all the evidence that might have been admissible
in a trial of either [the murder count or the conspiracy count]
tried separately would not have been admissible if Count
I, Murder in the First Degree were tried separately.” 71 Trail
does not point out which specific statements were entered
into evidence by virtue of the joinder, which would have been
inadmissible otherwise. Rather, he generally asserts the State
was allowed to introduce hearsay evidence to establish a con-
spiracy, lifting the conspiracy “‘by its own bootstraps,’” 72 then
utilizing that conspiracy evidence to get a conviction on the
murder charge.
Such arguments fall far short of showing compelling, spe-
cific, and actual prejudice. Most fundamentally, however, there
is no merit to Trail’s assumption that different hearsay rules
apply to proof of a conspiracy in a trial on a conspiracy charge
versus proof of a conspiracy in a trial on a murder charge.
[24-26] In State v. Hudson, 73 we specifically held that
the coconspirator exception to the hearsay rule is applicable
regardless of whether a conspiracy has been charged in the
information. Under Neb. Rev. Stat. § 27-801(4)(b)(v) (Reissue
2016), a statement is not hearsay if it is “a statement by a
coconspirator of a party during the course and in furtherance
of the conspiracy.” Under the coconspirator exception to the
hearsay rule, the declarant conspirator who partners with oth-
ers in the commission of a crime is considered the agent of
69
Id.
70
Id.
71
Brief for appellant at 23.
72
Id.
73
State v. Hudson, 279 Neb. 6, 775 N.W.2d 429 (2009).
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his or her fellow conspirators, and the commonality of inter-
ests gives some assurance that the statements are reliable. 74
Whether or not a conspiracy has been charged in the informa-
tion, before the trier of fact may consider testimony under the
coconspirator exception to the hearsay rule, a prima facie case
establishing the existence of the conspiracy must be shown by
independent evidence, to prevent the danger of hearsay evi-
dence being lifted by its own bootstraps. 75
Our review of the record demonstrates the district court
was aware of Trail’s concerns and insisted the State establish
by independent evidence a prima facie case of the conspiracy
before it admitted Boswell’s out-of-court statements. We find
no merit to this assignment of error.
3. Sequestration
Trail next argues the district court erred in allowing
Sydney’s mother to remain in the courtroom “in violation
of its own sequestration order.” 76 Trail elaborates that under
Neb. Rev. Stat. § 27-615 (Reissue 2016), he had a right to
have the witnesses excluded so that they could not hear the
testimony of other witnesses. Trail does not explain how he
was prejudiced by the district court’s ruling other than gen-
erally noting Sydney’s mother “remained in the front of the
courtroom for the majority of the balance of the trial within
sight of the jury and was able to hear the testimony of all the
other witnesses.” 77
[27,28] Section 27-615 provides, with certain exceptions
not here applicable that “[a]t the request of a party the
judge shall order witnesses excluded so that they cannot hear
the testimony of other witnesses . . . .” However, we have
long held that the exclusion or sequestration of a witness is
74
State v. Britt, 293 Neb. 381, 881 N.W.2d 818 (2016).
75
See State v. Estrada Comacho, 309 Neb. 494, 960 N.W.2d 739 (2021).
76
Brief for appellant at 25.
77
Id. at 26.
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within the discretion of the trial court. 78 It is for the trial
court to determine the extent to which a sequestration order
will be applied in a given case. 79 Sequestration is based on
the belief that not hearing other witnesses’ testimony tends to
better elicit the truth and promote the ends of justice, but this
reasoning generally applies only to unexamined witnesses. 80
Thus, generally speaking, a request for sequestration of wit-
nesses is a request that they be excluded from the court-
room until called to testify. 81 The denial of a sequestration
motion will not be overturned absent evidence of prejudice to
the defendant. 82
The district court did not abuse its discretion in allow-
ing Sydney’s mother to remain in the courtroom after she
testified and after the court released her from sequestration.
Furthermore, Trail has failed to demonstrate he was prejudiced
by her presence. While the defense was given the opportunity
to recall Sydney’s mother in order to reopen cross-examination,
it did not elect to do so. The fact that the mother of a mur-
der victim was present in the courtroom in view of the jury
during trial does not in itself demonstrate prejudice to the
defendant.
4. Courtroom Disruption
Trail argues that his outburst at trial—“curse you all” and
cutting his neck with a razor blade—was of such a nature that
its damaging effect could not be removed by admonition or
instruction and that the court should have granted his motion
for a mistrial. Even if an admonition or instruction could
have otherwise removed the prejudice, according to Trail,
the court’s procedure of first ordering the jurors to disregard
78
State ex rel. NSBA v. Miller, 258 Neb. 181, 602 N.W.2d 486 (1999).
79
State v. Swillie, supra note 8.
80
See State ex rel. NSBA v. Miller, supra note 78.
81
State v. Hess, 225 Neb. 91, 402 N.W.2d 866 (1987).
82
State ex rel. NSBA v. Miller, supra note 78.
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the outburst and then asking them if they could follow the
court’s instruction was insufficient because it put the jurors in
a difficult position of stating they could not follow the court’s
order. Similarly, Trail argues his motion for a new trial should
have been granted because of his disruption. Trail suggests
the additional evidence submitted in support of the motion for
new trial, entered under seal, showed the self-harm was due to
“misconduct of agents of the prosecuting attorney,” 83 because
it would not have occurred had jail staff implemented extra
security measures warranted by specific knowledge. We hold
the district court did not err in denying Trail’s motions for a
mistrial and for a new trial.
[29-31] A mistrial is properly granted in a criminal case
where an event occurs during the course of trial which is of
such a nature that its damaging effect cannot be removed by
proper admonition or instruction to the jury and thus pre-
vents a fair trial. 84 A defendant faces a higher threshold than
merely showing a possibility of prejudice when attempting to
prove error predicated on the failure to grant a mistrial. 85 The
defendant must prove that the alleged error actually prejudiced
him or her, rather than creating only the possibility of preju-
dice. 86 Absent evidence to the contrary, the legal system pre-
sumes that jurors, to the extent they are able, will comply with
curative instructions and judicial admonitions. 87
[32,33] A motion for a new trial is a statutory remedy and
can be granted by a court of law only upon the grounds, or
83
Brief for appellant at 36.
84
State v. Figures, supra note 9.
85
State v. Grant, 293 Neb. 163, 876 N.W.2d 639 (2016).
86
State v. Briggs, 303 Neb. 352, 929 N.W.2d 65 (2019).
87
See, David F. Herr & Roger S. Haydock, Motion Practice § 21.04 (8th ed.
2021) (discussing curative instructions); David Paul Nicoli, Federal Rules
of Criminal Procedure 23(b) and 24(c): A Proposal to Reduce Mistrials
Due to Incapacitated Jurors, 31 Am. U.L. Rev. 651 (1982). See, also, U.S.
v. Dunlap, 28 F.3d 823 (8th Cir. 1994).
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some of them, provided for by the statutes. 88 The grounds on
which a trial court may order a new trial after a criminal convic-
tion has been entered are specified in Neb. Rev. Stat. § 29-2101
(Reissue 2016). The asserted ground for a new trial must affect
adversely the substantial rights of the defendant, and it must be
shown that the defendant was prejudiced thereby. 89
[34-36] A trial court is vested with considerable discre-
tion in passing on motions for mistrial and new trial, 90 and an
appellate court will not disturb a trial court’s decision whether
to grant a motion for mistrial or a motion for new trial unless
the court has abused its discretion. 91 It is an abuse of discre-
tion to make an error of law or clear errors of factual deter-
mination. 92 Our deference to the trial court stems in part from
the recognition that the trial judge is better situated than a
reviewing court to pass on questions of witness credibility and
the surrounding circumstances and atmosphere of the trial. 93
The trial judge has a special perspective on the relationship
between the evidence and the verdict which cannot be recre-
ated by a reviewing court from the printed record. 94 The trial
court is likewise in a better position to make credibility deter-
minations of jurors’ statements concerning whether they were
influenced by extraneous information. 95
88
See Greenberg v. Fireman’s Fund Ins. Co., 150 Neb. 695, 35 N.W.2d 772
(1949). See, also, State v. Bartel, 308 Neb. 169, 953 N.W.2d 224 (2021).
89
State v. Tainter, 218 Neb. 855, 359 N.W.2d 795 (1984).
90
See State v. Swindle, 300 Neb. 734, 915 N.W.2d 795 (2018). See, also,
State v. Madren, 308 Neb. 443, 954 N.W.2d 881 (2021); State v. Grant,
supra note 85.
91
See, State v. Figures, supra note 9; State v. Bartel, supra note 88.
92
See, U.S. v. McDaniel, 398 F.3d 540 (6th Cir. 2005); U.S. v. Petrie, 302
F.3d 1280 (11th Cir. 2002).
93
Holmes v. Crossroads Joint Venture, 262 Neb. 98, 629 N.W.2d 511 (2001).
94
See id.
95
See Scherz v. Platte Valley Public Power and Irrigation District, 151 Neb.
415, 37 N.W.2d 721 (1949). See, also, State v. Jenkins, supra note 11.
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[37] The district court, after considering all the evidence
submitted by the parties at the hearing on the motion for new
trial, found Trail’s act of self-harm was “a calculating gesture,”
and we will not disturb this finding on appeal. As a general
matter, a defendant is not permitted to profit from the defend
ant’s own bad conduct by disrupting courtroom proceedings
and then urging disruption as a ground for mistrial. 96 “To hold
otherwise would provide a criminal defendant with a conve-
nient device for provoking a mistrial whenever he chose to
do so, either inside or outside the courtroom.” 97 As the U.S.
Supreme Court has explained in the context of the right to be
present at trial, an accused cannot be permitted through dis-
ruptive conduct to indefinitely avoid being tried. 98 “It would
degrade our country and our judicial system to permit our
courts to be bullied, insulted, and humiliated and their orderly
progress thwarted and obstructed by defendants brought before
them charged with crimes.” 99
In accordance with these principles, in State v. Grant, 100
we held the trial court did not err in denying the defendant’s
96
See, United States v. Bentvena, 319 F.2d 916 (2d Cir. 1963); Hayes v.
State, 340 So. 2d 1142 (Ala. Crim. App. 1976); People v. Dunn, 141 Cal.
Rptr. 3d 193, 205 Cal. App. 4th 1086 (2012); Hammond v. United States,
345 A.2d 140 (D.C. 1975); State v. Ganal, 81 Haw. 358, 917 P.2d 370
(1996); State v. Doyle, 335 So. 3d 393 (La. App. 2021); State v. Eaton,
563 S.W.3d 841 (Mo. App. 2018); State v. Grant, supra note 85; People
v. Mabre, 166 A.D.2d 339, 561 N.Y.S.2d 10 (1990); State v. Joiner, 237
N.C. App. 513, 767 S.E.2d 557 (2014); State v. Linkous, 177 W. Va. 621,
355 S.E.2d 410 (1987). See, also, generally, Annot., 89 A.L.R.3d 960
(1979 & Supp. 2022). But see, e.g., People v. Blunt, 273 A.D.2d 146, 709
N.Y.S.2d 560 (2000) (defendant’s orations containing inadmissible and
highly prejudicial factual assertions were too extensive and damaging to
be dealt with through curative instructions and jury inquiries).
97
Hammond v. United States, supra note 96, 345 A.2d at 141.
98
Illinois v. Allen, 397 U.S. 337, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970).
99
Id., 397 U.S. at 346.
100
State v. Grant, supra note 85.
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motion for a mistrial based on his conduct during trial of sud-
denly standing up and punching his counsel in the head, after
which a scuffle with law enforcement ensued to restrain him.
The defendant was subsequently found guilty of first degree
murder and use of a deadly weapon to commit a felony. The
court admonished the jury members and asked them to notify
the court if they could no longer be fair and impartial. None
did. While it appeared the altercation upset at least one mem-
ber of the jury, we pointed out the reactions at issue would
not have occurred without the defendant’s own outburst. 101
We would not “permit a defendant to benefit from his or her
own bad behavior during trial.” 102 We also found that because
the jury members were admonished and indicated they could
remain fair and impartial, the defendant had failed to demon-
strate prejudice. We reached a similar conclusion for similar
reasons in State v. Blackwell, 103 affirming the court’s denial of
a motion for new trial based on the defendant’s yelling at wit-
nesses during their testimony.
When the trial court has endeavored to promptly ameliorate
any prejudicial effect, even frequent offensive and violent out-
bursts by defendants will not ordinarily require a mistrial or a
new trial. 104 In United States v. Bentvena, 105 a series of “dra-
matic disturbances” by several defendants did not warrant a
mistrial when the prosecution had done nothing to provoke the
incidents and the judge did all in his power to minimize their
effect. To hold otherwise, explained the court, “would produce
little less than anarchy.” 106
[38] Neither are disruptive acts of the defendant irremedi-
able simply because they reflect some attribute consistent
101
See id.
102
Id. at 194, 876 N.W.2d at 664.
103
State v. Blackwell, 184 Neb. 121, 165 N.W.2d 730 (1969).
104
See, e.g., United States v. Bentvena, supra note 96.
105
Id. at 930.
106
Id. at 931.
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with the charged crime. For example, in People v. White, 107
a defendant on trial for escape was not entitled to a mistrial
after the jury saw him flee the courtroom when the State’s
last witness took the stand. The court found the defendant’s
“‘contumacious’” behavior should not entitle him to a mistrial
absent “irremedial prejudice.” 108 And it found that the trial
court’s actions in promptly escorting the jury members from
the courtroom and admonishing them to keep an open mind
adequately minimized the likelihood of prejudice. 109
As with these other defendants, we will not permit Trail
to benefit from his own bad behavior during trial. The court
described that, after yelling, “[Boswell] is innocent, and I curse
you all,” Trail made some slashing gestures at his neck and
some blood was visible. While dramatic, the incident was not
of such a nature to create irremediable prejudice.
We find no merit to Trail’s assertion that the violent dis-
ruption was irremediably prejudicial because he could not
thereafter argue to the jury he was incapable of violence and,
thus, innocent. The same could be said of any violent outburst
during the trial on charges of any violent crime. Moreover, it is
apparent it was never defense counsel’s strategy to argue Trail
was nonviolent, arguing instead that Trail had unintentionally
killed Sydney while engaged in sadomasochistic consensual
asphyxiation. Similarly, Trail’s statement about cursing “you
all” was not irremediably prejudicial because Sydney’s murder
was allegedly connected to witchcraft. And even assuming
Trail’s outburst was construed by jurors as a call to the super-
natural rather than a more mundane expression of outrage,
such beliefs were cumulative of Trail’s own testimony that he
believed in spiritual witches.
The trial court endeavored to promptly ameliorate any preju-
dicial effect by clearing the jury from the courtroom and
107
People v. White, 199 A.D.2d 558, 606 N.Y.S.2d 49 (1993).
108
Id. at 559, 606 N.Y.S.2d at 50.
109
See id.
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instructing it “to disregard the outburst that you heard this
morning and to not consider it in your deliberations at the end
of the trial.” After interviewing each of the jurors individually,
the district court found they were able to follow the cura-
tive instruction to disregard the outburst and remain fair and
impartial in their deliberations. We disagree with Trail’s asser-
tion that the court’s procedure of giving the curative instruc-
tion before individually interviewing the jurors pressured the
jurors into falsely proclaiming they could follow the court’s
instruction. We will not second-guess the court’s evaluation of
the credibility of the jurors’ assurances that they could remain
fair and impartial. The disruption was not so damaging that
a reasonable juror would be incapable of following curative
instructions or of knowing his or her own capacity to remain
impartial. The court did not err in finding that Trail did not suf-
fer actual prejudice.
Trail’s arguments pertaining to jail staff’s negligence are
irrelevant to our analysis, and we therefore do not determine
the extent of such negligence, if any. Whatever security meas
ures jail staff could have taken to prevent Trail from secret-
ing the razor blade into the courtroom, Trail’s responsibility
for intentionally disrupting the trial would remain the same.
Whether or not jail staff should have done more to prevent it,
Trail should not benefit from this “calculating gesture.”
The district court did not abuse its discretion in denying
Trail’s motions for a mistrial and a new trial. We turn to Trail’s
assignments of error relating to sentencing.
5. Constitutionality of Findings of Whether
Aggravating Circumstances Justify Death
Penalty and Relative Weight of
Aggravating and Mitigating Circumstances
Being Made by Judges Rather Than Jury
Trail assigns the district court erred in sentencing him to
death because Nebraska’s death penalty scheme is unconsti-
tutional. He argues that because a panel of judges rather than
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a jury makes findings of whether the aggravating circum-
stances justify the death penalty and whether sufficient miti-
gating circumstances exist that approach or exceed the weight
given to the aggravating circumstances, Nebraska’s death
penalty scheme violates article I, §§ 6 and 9, of the Nebraska
Constitution and the 6th and 8th Amendments to the U.S.
Constitution, made applicable to the states through the 14th
Amendment. We disagree.
Under Nebraska’s capital sentencing scheme, a jury, if not
waived, 110 only determines the existence of aggravating circum-
stances. 111 A jury’s participation in the death penalty sentenc-
ing phase, if not waived, 112 ceases after the determination of
aggravating circumstances. 113 A three-judge panel determines
the existence of mitigating circumstances, weighs aggravating
and mitigating circumstances, and determines the sentence. 114
Section 29-2522 provides the guidelines for the three-judge
panel’s sentencing determination:
The panel of judges for the sentencing determination
proceeding shall either unanimously fix the sentence at
death or, if the sentence of death was not unanimously
agreed upon by the panel, fix the sentence at life impris-
onment. Such sentence determination shall be based upon
the following considerations:
(1) Whether the aggravating circumstances as deter-
mined to exist justify imposition of a sentence of death;
(2) Whether sufficient mitigating circumstances exist
which approach or exceed the weight given to the aggra-
vating circumstances; or
110
See Neb. Rev. Stat. § 29-2520(3) (Cum. Supp. 2020).
111
See § 29-2520(4)(g).
112
See § 29-2520(3).
113
See § 29-2520(4)(g).
114
§ 29-2521.
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(3) Whether the sentence of death is excessive or dis-
proportionate to the penalty imposed in similar cases,
considering both the crime and the defendant.
In each case, the determination of the panel of judges
shall be in writing and refer to the aggravating and
mitigating circumstances weighed in the determination of
the panel.
(a) Sixth Amendment
[39] The Sixth Amendment right to a speedy and public
trial by an impartial jury, in conjunction with the Due Process
Clause, requires that each element of a crime be proved to
a jury beyond a reasonable doubt. 115 Article I, § 6, of the
Nebraska Constitution provides: “The right of trial by jury
shall remain inviolate . . . .”
In Apprendi v. New Jersey 116 and Ring v. Arizona, 117 the
U.S. Supreme Court held that under the Sixth Amendment, a
defendant has a right to have any “fact on which the legislature
conditions an increase in their maximum punishment” deter-
mined by a jury, even if the State characterizes that factual
finding as a sentencing factor rather than an element. 118 “[T]he
relevant inquiry is one not of form, but of effect.” 119
[40] The Court in Ring elaborated that under a statutory
scheme in which the death penalty cannot be imposed unless
at least one aggravating factor is found to exist beyond a
reasonable doubt, the Sixth Amendment requires the factual
determination of the aggravating factor be entrusted to the
jury. “[I]f the legislature defines some core crime and then
provides for increasing the punishment of that crime upon a
115
Hurst v. Florida, 577 U.S. 92, 136 S. Ct. 616, 193 L. Ed. 2d 504 (2016).
116
Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435
(2000).
117
Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002).
118
Id., 536 U.S. at 589.
119
Apprendi v. New Jersey, supra note 116, 530 U.S. at 494.
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finding of some aggravating fact[,] . . . the core crime and the
aggravating fact together constitute an aggravated crime.” 120
The Court found that “enumerated aggravating factors [of
state laws] operate as the functional equivalent of an element
of a greater offense.” 121
The Court in Ring expressly observed, however, it was not
addressing whether the Sixth Amendment forbade determi-
nations by judges, rather than juries, of mitigating circum-
stances, the relative weight of aggravating and mitigating
circumstances, or the ultimate sentencing decision. In fact, the
Court in Ring reiterated the distinction between facts of mitiga-
tion versus aggravation, as well as its prior pronouncement in
Proffitt v. Florida 122 that “‘[i]t has never [been] suggested that
jury sentencing is constitutionally required.’” 123
In several cases, we have rejected the argument that
because the right to a jury determination is limited to guilt or
innocence of the crimes charged and the determination of the
aggravating circumstances, Nebraska’s sentencing scheme is
unconstitutional under the 6th and 14th Amendments to the
U.S. Constitution and article I, §§ 3 and 6, of the Nebraska
Constitution. 124 In State v. Gales (Gales I), 125 we explained
that Apprendi and Ring do not stand for the proposition that
a jury, rather than a judge or judges, must make the sentenc-
ing determinations listed under § 29-2522. Rather, Apprendi
and Ring affected only the narrow issue of whether there is
120
Ring v. Arizona, supra note 117, 536 U.S. at 605 (internal quotation marks
omitted).
121
Id., 536 U.S. at 609 (internal quotation marks omitted).
122
See Proffitt v. Florida, 428 U.S. 242, 96 S. Ct. 2960, 49 L. Ed. 2d 913
(1976).
123
Ring v. Arizona, supra note 117, 536 U.S. at 597-98 n.4.
124
See, State v. Jenkins, supra note 11; State v. Lotter, 301 Neb. 125, 917
N.W.2d 850 (2018); State v. Hessler, 274 Neb. 478, 741 N.W.2d 406
(2007); State v. Gales, 269 Neb. 443, 694 N.W.2d 124 (2005).
125
State v. Gales, 265 Neb. 598, 658 N.W.2d 604 (2003).
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a Sixth Amendment right to have a jury determine the exis-
tence of any aggravating circumstance upon which a capital
sentence is based.
[41] We noted in Gales I that the U.S. Supreme Court, in
Tuilaepa v. California, 126 had described statutory schemes
similar to the one in Nebraska as being composed of an
“‘eligibility decision,’” in which there must be a determina-
tion of the existence of one or more prescribed aggravating
circumstances before a defendant is eligible for a sentence
of death and a “‘selection decision,’” in which the sentence
determines whether a defendant who is thereby death eligible
should in fact receive the death penalty, based upon an indi-
vidualized determination of the character of the individual
and the circumstances of the crime. 127 The “eligibility deci-
sion” stemmed from a series of U.S. Supreme Court deci-
sions holding that in order to render a defendant eligible for
the death penalty, the trier of fact must convict the defendant
of murder and also find one “‘aggravating circumstance’ (or
its equivalent) at either the guilt or penalty phase.” 128 We
pointed out that the U.S. Supreme Court, in both Proffitt 129
and Spaziano v. Florida, 130 had rejected arguments that the
selection decision, as opposed to the eligibility decision, must
be made by a jury, and the Court in Ring appeared to continue
126
Tuilaepa v. California, 512 U.S. 967, 114 S. Ct. 2630, 129 L. Ed. 2d 750
(1994).
127
Gales I, supra note 125, 265 Neb. at 609, 658 N.W.2d at 614, quoting
Tuilaepa v. California, supra note 126.
128
Tuilaepa v. California, supra note 126, 512 U.S. at 971-72. See, Lowenfield
v. Phelps, 484 U.S. 231, 108 S. Ct. 546, 98 L. Ed. 2d 568 (1988); Zant v.
Stephens, 462 U.S. 862, 103 S. Ct. 2733, 77 L. Ed. 2d 235 (1983); Coker
v. Georgia, 433 U.S. 584, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977). See,
also, Jones v. United States, 527 U.S. 373, 119 S. Ct. 2090, 144 L. Ed. 2d
370 (1999).
129
See Proffitt v. Florida, supra note 122.
130
Spaziano v. Florida, 468 U.S. 447, 104 S. Ct. 3154, 82 L. Ed. 2d 340
(1984), overruled, Hurst v. Florida, supra note 115.
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to approve of the distinction between eligibility and selection
decisions for purposes of the Sixth Amendment. 131 We accord-
ingly held that the Sixth Amendment requires only the right to
a jury determination of the death-eligibility finding of one or
more aggravating circumstances and it does not apply to the
selection decision.
Relying on the 2016 U.S. Supreme Court decision in Hurst
v. Florida, 132 Trail asserts that Gales I and its progeny are no
longer good law. We disagree.
In Hurst, the Court held that a “hybrid” 133 sentencing
scheme, in which the jury made a merely “advisory” 134 recom-
mendation of life or death and did not make a binding finding
as to the existence of any aggravating circumstance, violated
the Sixth Amendment. The sentencing scheme required the
jury to render an advisory verdict of life or death while
the sentencing judge then exercised independent judgment
to determine the existence of aggravating and mitigating fac-
tors and made an independent judgment, after weighing the
aggravating and mitigating factors, about whether the sen-
tence should be life or death. The sentencing statute specified
that a defendant was not death eligible until the court (not
a jury) made independent findings that the person shall be
punished by death—which included finding that sufficient
aggravating circumstances existed and that there were insuf-
ficient mitigating circumstances to outweigh the aggravating
circumstances. 135
The Supreme Court in Hurst rejected the State’s argument
that the scheme was constitutional because a jury implicitly
found at least one aggravating circumstance when it recom-
mended the death penalty. The Court explained, “The State
131
Gales I, supra note 125.
132
Hurst v. Florida, supra note 115.
133
Id., 577 U.S. at 95 (internal quotation marks omitted).
134
Id. (internal quotation marks omitted).
135
See id.
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fails to appreciate the central and singular role the judge
plays” 136 under the law wherein “[t]he trial court alone must” 137
make the “critical findings necessary to impose the death
penalty” 138 without which the defendant’s maximum authorized
punishment would be life imprisonment.
We recently addressed Hurst in State v. Jenkins. 139 We
held on direct appeal from the defendant’s conviction and
sentence to the death penalty that Hurst did not require us
to reexamine our prior conclusion that the Sixth Amendment
does not require the jury to determine mitigating circum-
stance, perform the balancing function, or conduct the pro-
portionality review.
Similarly, in State v. Lotter, 140 we held, for purposes of the
statute of limitations for a postconviction action, that Hurst
did not announce a new rule of law. We explained Hurst was
merely an application of Ring to the sentencing scheme under
which the judge alone found the existence of any aggravating
circumstance that made the defendant death eligible.
We explained in Lotter that isolated references in Hurst
to the sentencing scheme’s requirement that the court find
there were insufficient mitigating circumstances to outweigh
the aggravating circumstances did not mean that the Supreme
Court had held the jury rather than a judge must find that
the aggravating circumstances outweigh the mitigating ones.
Rather, we sided with the opinion of most federal and state
courts, which agree Hurst does not stand for the proposition
that a jury must find beyond a reasonable doubt that the aggra-
vating factors outweigh the mitigating circumstances. 141
136
Id., 577 U.S. at 99.
137
Id., 577 U.S. at 100.
138
Id., 577 U.S. at 98.
139
State v. Jenkins, supra note 11.
140
State v. Lotter, supra note 124.
141
Id.
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[42] After Jenkins and Lotter, the U.S. Supreme Court, in
McKinney v. Arizona, 142 implicitly confirmed the validity of
our analysis and the majority view. The Court held that on
remand for a reweighing of the aggravating and mitigating
circumstances (after federal habeas corpus review found the
trial court had erred by refusing to consider the mitigating
circumstance of the defendant’s post-traumatic stress disor-
der), a judge, rather than a jury, could conduct the reweigh-
ing. The Supreme Court specifically rejected the defendant’s
argument that its holding in Hurst required a jury to reweigh
aggravating and mitigating circumstances. The Court reiter-
ated, “[I]n a capital sentencing proceeding just as in an ordi-
nary sentencing proceeding, a jury (as opposed to a judge)
is not constitutionally required to weigh the aggravating and
mitigating circumstances or to make the ultimate sentencing
decision within the relevant sentencing range.” 143 The Court
explained that Ring and Hurst stand only for the proposi-
tion that a jury must find an aggravating circumstance that
makes the defendant death eligible. “In short,” said the Court,
“Ring and Hurst did not require jury weighing of aggravat-
ing and mitigating circumstances” 144 and “‘States that leave
the ultimate life-or-death decision to the judge may continue
to do so.’” 145
[43] By leaving to the three-judge panel the ultimate life-
or-death decision upon making the selection decisions of
whether the aggravating circumstances justify the death pen-
alty and whether sufficient mitigating circumstances exist that
approach or exceed the weight given to the aggravating cir-
cumstances, Nebraska’s sentencing scheme does not violate
142
McKinney v. Arizona, ___ U.S. ___, 140 S. Ct. 702, 206 L. Ed. 2d 69
(2020).
143
Id., 140 S. Ct. at 707.
144
Id., 140 S. Ct. at 708.
145
Id., 140 S. Ct. at 708, quoting Ring v. Arizona, supra note 117 (Scalia, J.,
concurring; Thomas, J., joins).
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the Sixth Amendment right to a jury trial or article I, § 6, of
the Nebraska Constitution.
(b) Eighth Amendment
Taking a more novel tack, Trail asserts Nebraska’s delega-
tion of the selection criteria and ultimate life-or-death deci-
sion to the three-judge panel violates the Eighth Amendment
to the U.S. Constitution and article I, § 9, of the Nebraska
Constitution. He asserts that allowing judge-determined death
sentences has fallen outside society’s evolving standards of
decency and that jurors, rather than judges, can more reliably
express society’s consensus of whether a sentence of death is
the adequate response to the defendant’s crimes. It does not
appear we have ever addressed this specific argument. We con-
clude it lacks merit.
[44] The Cruel and Unusual Punishment Clause prohibits
(1) “barbaric punishments under all circumstances” and (2)
punishments that are not “‘graduated and proportioned to
[the] offense.’” 146 Most cases involve disproportionality. 147
On disproportionality, there is a body of case law applying
categorical rules under the Eighth Amendment in light of
either the “nature of the offense” or the “characteristics of the
offender.” 148 In adopting such rules, the U.S. Supreme Court
has considered, first, “‘objective indicia of society’s standards’
. . . to determine whether there is a national consensus against
the sentencing practice at issue.” 149 It then has exercised its
own independent judgment, guided by “‘the standards elabo-
rated by controlling precedents and by the Court’s own under-
standing and interpretation of the Eighth Amendment’s text,
history, meaning, and purpose.’” 150
146
Graham v. Florida, 560 U.S. 48, 59, 130 S. Ct. 2011, 176 L. Ed. 2d 825
(2010).
147
See id.
148
Id., 560 U.S. at 60.
149
Id., 560 U.S. at 61.
150
Id.
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The U.S. Supreme Court has recognized that the Eighth
Amendment reaffirms the duty of the government to respect the
dignity of all persons “‘[b]y protecting even those convicted
of heinous crimes . . . .’” 151 “To enforce the Constitution’s
protection of human dignity, this Court looks to the ‘evolv-
ing standards of decency that mark the progress of a maturing
society.’” 152 This is necessary because the standard of extreme
cruelty is not merely descriptive, but necessarily embodies a
moral judgment, and what is considered cruel and unusual pun-
ishment must change as the basic mores of society change. 153
The U.S. Supreme Court has also said, “The fundamental
respect for humanity underlying the Eighth Amendment’s
prohibition against cruel and unusual punishment gives rise
to a special need for reliability in the determination that
death is the appropriate punishment in any capital case.” 154
In order to ensure that reliability, “the sentencing process
must permit consideration of the ‘character and record of the
individual offender and the circumstances of the particular
offense.’” 155
None of these Eighth Amendment principles are pertinent
to whether a jury, as opposed to a judge, weighs the aggra-
vating against the mitigating circumstances and makes the
ultimate determination if death is the appropriate punishment.
In fact, the U.S. Supreme Court has recognized as much. In
Clemons v. Mississippi, 156 in addition to addressing the Sixth
151
Hall v. Florida, supra note 62, 572 U.S. at 708, quoting Roper v. Simmons,
543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005).
152
Id., quoting Trop v. Dulles, 356 U.S. 86, 78 S. Ct. 590, 1 L. Ed. 2d. 630
(1958).
153
State v. Boche, 294 Neb. 912, 885 N.W.2d 523 (2016).
154
Johnson v. Mississippi, 486 U.S. 578, 584, 108 S. Ct. 1981, 100 L. Ed. 2d
575 (1988) (internal quotation marks omitted).
155
See Lockett v. Ohio, 438 U.S. 586, 601, 98 S. Ct. 2954, 57 L. Ed. 2d 973
(1978).
156
Clemons v. Mississippi, 494 U.S. 738, 110 S. Ct. 1441, 108 L. Ed. 2d 725
(1990).
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Amendment, the U.S. Supreme Court held it does not violate
the Eighth Amendment for an appellate court, rather than
remand for a jury reweighing, to uphold a death sentence
by itself reweighing on appeal the aggravating and mitigat-
ing evidence. One aggravating circumstance found below
had been held on appeal to be unconstitutionally vague, but
the other aggravating circumstance was held to be valid. 157
The Court explained, “The primary concern in the Eighth
Amendment context has been that the sentencing decision be
based on the facts and circumstances of the defendant, his
background, and his crime.” 158 “[S]tate appellate courts can
and do give each defendant an individualized and reliable
sentencing determination based on the defendant’s circum-
stances, his background, and the crime.” 159 This holding in
Clemons was reaffirmed after Hurst 160 by the Court’s opinion
in McKinney. 161
In arguing that the Eighth Amendment is relevant to pro-
cedures such as whether a panel of judges rather than a jury
makes the final selection determinations necessary to impose
the death penalty, Trail relies on Hall v. Florida. 162 In Hall,
the U.S. Supreme Court held that a statutory scheme making
an intellectual quotient score final and conclusive on whether
a defendant was intellectually disabled, without allowing con-
sideration of additional evidence of intellectual disability,
violated the Eighth Amendment when the scientific com-
munity and the national consensus recognized the specified
score to be at the lower end of the inherent margin of error
for a range demonstrating intellectual disability. Applying
157
See id.
158
Id., 494 U.S. at 748.
159
Id., 494 U.S. at 749.
160
Hurst v. Florida, supra note 115.
161
McKinney v. Arizona, supra note 142.
162
Hall v. Florida, supra note 62.
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its prior holding in Atkins v. Virginia 163 that the 8th and 14th
Amendments to the U.S. Constitution forbid the execution of
persons with intellectual disability, the Court held the rigid
statutory rule respecting intellectual quotient scores “creates
an unacceptable risk that persons with intellectual disability
will be executed, and thus is unconstitutional.” 164
Hall is not apposite to the case at bar. Having a three-judge
panel weigh aggravators against mitigators and determine the
ultimate sentence does not create an unacceptable risk that
persons will be executed without the constitutionally required
consideration of character and record of the individual offender
and the circumstances of the particular offense.
[45] In State v. Mata, 165 we rejected the defendant’s argu-
ment that a system wherein a three-judge panel weighs the
aggravating and mitigating circumstances without guidance
from the jury is arbitrary and capricious under the 8th and
14th Amendments. In State v. Hessler, 166 we rejected the
defendant’s argument under the Eighth Amendment that a
sentencing panel is not in as good of a position as the
jury to assign a weight to the aggravating circumstances,
to weigh aggravating circumstances against mitigating cir-
cumstances, or to determine the sentence. While Trail’s 8th
Amendment arguments are somewhat different from those
addressed in Mata and Hessler, he presents no reason to
depart from our holdings in those cases that Nebraska’s
statutory scheme, delegating to the three-judge panel deter-
minations of whether the aggravating circumstances justify
the death penalty and whether sufficient mitigating circum-
stances exist that approach or exceed the weight given to the
163
Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335
(2002).
164
Hall v. Florida, supra note 62, 572 U.S. at 704.
165
State v. Mata, 275 Neb. 1, 745 N.W.2d 229 (2008).
166
State v. Hessler, supra note 124.
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aggravating circumstances, does not violate the 8th and 14th
Amendments to the U.S. Constitution or article I, § 9, of the
Nebraska Constitution.
6. Proportionality Review
[46] Lastly, Trail argues that because his crimes involved
only one victim and one aggravator, the sentence of death
in this case is excessive or disproportionate to the penalty
imposed in similar cases. Under Neb. Rev. Stat. § 29-2521.03
(Cum. Supp. 2020), we are required upon appeal to determine
the propriety of a death sentence by conducting a proportional-
ity review. Proportionality review requires us to compare the
aggravating and mitigating circumstances with those present
in other cases in which a district court imposed the death pen-
alty. 167 This is to ensure that the sentence imposed in the case
under review is no greater than those imposed in other cases
with the same or similar circumstances. 168
[47] We disagree with Trail’s premise that the number of
victims or the number of aggravating circumstances is determi-
native. We have emphasized that the balancing of aggravating
circumstances against mitigating circumstances is not merely
a matter of number counting, but, rather, requires a careful
weighing and examination of the various factors. 169 It would
be virtually impossible to find two murder cases which are the
same in all respects. 170 Instead, the question is simply whether
the cases being compared are sufficiently similar, considering
both the crime and the defendant, to provide the court with
a useful frame of reference for evaluating the sentence in
this case. 171
167
State v. Mata, supra note 165.
168
See id.
169
State v. Dunster, 262 Neb. 329, 631 N.W.2d 879 (2001).
170
State v. Schroeder, supra note 12.
171
Id.
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[48] Accordingly, we have held that the death penalty can
be imposed when only one aggravating circumstance is pres-
ent. 172 Where the record reveals that the sentence of death was
the result of reasoned judgment and the careful weighing and
examination of the various circumstances and factors in light
of the totality of the circumstances present, one aggravating
circumstance may be sufficient under our statutory system for
the sentencing court to conclude that imposition of the death
penalty is appropriate. 173
In our de novo review, we conclude that the requirements of
Neb. Rev. Stat. §§ 29-2519 to 29-2546 (Cum. Supp. 2020) have
been met. Trail does not contest that the State proved beyond
a reasonable doubt the aggravating circumstance of excep-
tional depravity to justify the imposition of the death penalty.
As the sentencing panel described, the murder reflected cold,
calculated planning to find and kill a helpless victim to sat-
isfy Trail’s curiosity and sexual proclivities. The carvings on
Sydney’s body and other acts of strategic mutilation demon-
strated he relished the murder and had “no regard for the life
of Sydney . . . beyond his own personal pleasure.” We find the
aggravating circumstance of exceptional depravity is sufficient
under the totality of the circumstances present to justify the
death penalty for Trail.
Trail does not assert on appeal any mitigating circumstance.
We agree with the sentencing panel that the nonstatutory miti-
gating circumstance of Trail’s upbringing does not approach
or exceed the aggravating circumstance.
We have reviewed our relevant decisions on direct appeal
from other cases in which the death penalty was imposed
and do not find the imposition of the death penalty is a
greater penalty than the sentences imposed in other cases
with similar circumstances. For example, in State v. Joubert,
we affirmed the death penalty when, among other things,
172
See, id.; State v. Dunster, supra note 169.
173
State v. Dunster, supra note 169.
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the defendant had “coldly planned” 174 “[the] murders far in
advance . . . to satisfy his intellectual or sexual curiosity or
urges.” 175 Further, the murders in Joubert were “‘totally and
senselessly bereft of any regard for human life.’” 176 In Mata,
in affirming the death penalty, we found it “sufficient to say
that [the victim’s] skull had been fractured by multiple blows
of blunt force trauma at or near the time of death and that
[the defendant] had dismembered [the victim’s] body and
disposed of it in pieces.” 177 “[The defendant] had relished
killing [the victim] with gratuitous violence and unnecessary
mutilation.” 178
Our proportionality review, required by § 29-2521.03, is
designed to ensure that no sentence imposed shall be greater
than those imposed in other cases with the same or similar
circumstances and that the review should include only those
cases in which the death penalty was imposed. 179 Like the
defendant in Joubert, Trail coldly planned Sydney’s murder
to satisfy sexual urges. Like the actions of the defendant in
Joubert and the defendant in Mata, Trail’s mutilation and dis-
memberment of Sydney’s body showed he relished the killing
and was bereft of any regard for human life. The crime com-
mitted against Sydney was utterly senseless and cruel. The
sentence of death in this case is not excessive or dispropor-
tionate to the penalty imposed in similar cases. We uphold the
sentencing panel’s imposition of the death sentence.
VI. CONCLUSION
For the foregoing reasons, we find no merit to Trail’s
assignments of error challenging the denial of his pretrial
174
State v. Joubert, supra note 4, 224 Neb. at 432, 399 N.W.2d at 251.
175
Id. at 430, 399 N.W.2d at 250.
176
Id.
177
State v. Mata, supra note 165, 275 Neb. at 30, 745 N.W.2d at 255.
178
Id.
179
See State v. Joubert, supra note 4.
- 908 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. TRAIL
Cite as 312 Neb. 843
motions to prevent death qualification of the jury and to
sever the conspiracy and murder charges, the district court’s
orders during trial releasing Sydney’s mother from sequestra-
tion after she testified and denying his motion for a mistrial
based on his outburst involving self-harm, and the district
court’s denial of his motion for a new trial. Further, we
reaffirm the constitutionality of the Nebraska death penalty
statutes and find Trail’s sentence of death was not excessive
or disproportionate.
Affirmed. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489021/ | OPINION
EMIL F. GOLDHABER, Bankruptcy Judge:
The issue presented in the instant case is whether we should grant relief from the automatic stay provisions of § 362(a) of the Bankruptcy Code (“Code”) to permit the secured creditor to proceed to enforce its lien on the debtor’s automobile. We conclude that the secured creditor is not entitled to such relief because the debtor has equity in the automobile and because the debtor has offered to provide the creditor with adequate protection of its interest in the automobile under the terms of the debtor’s chapter 13 plan.
The facts of the instant case are as follows: 1 On October 28, 1980, Catherine M. Johnson (“the debtor”) filed a petition for an adjustment of her debts under chapter 13 of the Code. Prior to that time, in October of 1978, the debtor had granted a valid security interest in her automobile to The Bank of New Jersey (“the Bank”). Beginning in September, 1980, the debtor failed to make the monthly payments of $170.68 due the Bank. On March 4, 1980, the Bank filed a complaint for relief from the automatic stay provisions of § 362(a) of the Code to permit it to proceed to enforce its lien on the debtor’s automobile.
At the trial held on that complaint, the Bank offered evidence that the total amount of the debt owed to it by the debtor is, at present, $4,779.04 plus $527.90 in attorneys fees and costs. In addition, the parties have stipulated that the present fair market value of the automobile is $4,350. The debtor offered no evidence but, instead, argued that under § 506(a) of the Code the Bank had only a secured claim up to the present fair market value of the automobile (or $4,350). The debtor also argued that, since the filing of her petition, she had been making monthly payments to the chapter 13 standing trustee pursuant to Procedural Order No. 132 and that the trustee was presently holding approximately $600 in her account, paid to her by the debtor. The debtor therefore contends that since at least some part of that $600 will be paid on confirmation to the Bank on account of its secured claim, a portion of that amount should be deducted from the Bank’s secured claim, thereby increasing the debtor’s equity in the automobile. The debtor argues that to do otherwise would be to penalize the debtor solely because of the law’s delay in the confirmation of chapter 13 plans in this district caused by the excessive numbers of such cases being filed here.
We agree with the debtor’s contentions. Section 506(a) of the Code provides:
§ 506. Determination of secured status.
(a) An allowed claim of a creditor secured by a lien on property in which the estate has an interest, or that is subject to setoff under section 553 of this title, is a secured claim to the extent of the value of such creditor’s interest in the estate’s interest in such property, or to the extent of the amount subject to setoff, as the case may be, and is an unsecured claim to the extent that the value of such credi*743tor’s interest or the amount so subject to setoff is less than the amount of such allowed claim. Such value shall be determined in light of the purpose of the valuation of and of the proposed disposition or use of such property, and in conjunction with any hearing on such disposition or use or on a plan affecting such creditor’s interest.
Therefore, by the terms of § 506(a), the Bank has only a secured claim in the amount of $4,350 while the remainder of the debt owed to it is an unsecured claim.
While the debtor’s plan was not introduced into evidence at the trial herein (thereby preventing us from determining exactly how much of that $6003 is to go to the bank under the plan), it is clear that the Bank, since its claim is covered by the plan, would receive some portion of that $600 on confirmation of the plan.4 Therefore, on confirmation of the debtor’s plan the Bank’s secured claim will be reduced by the amount that the Bank receives from the standing trustee on account of that claim. Therefore, at that time the debtor will have an equity in the automobile.
The question presented, however, is whether the debtor has an equity in the automobile at the present time. The Bank argues that the debtor has not since it (the Bank) has not yet received any money on its secured claim. We disagree, and conclude that, in determining the debtor’s equity in the automobile herein, the payments made to the standing trustee should be credited to the debtor’s liability to the Bank. The Bank need not be in actual possession of those funds but need only be entitled to them to have them affect its secured claim. In the case before us, the Bank would be entitled to some portion of those funds on confirmation of the plan by the very terms of that plan and would be entitled to the $600 if the plan is not confirmed as provided by the authorization and waiver executed by the debtor.5
Consequently, we conclude that the debt- or does have some equity in her automobile (equal to $600 in the event the plan is not confirmed or equal to whatever portion of the amount held by the standing trustee the Bank is entitled to on confirmation of the plan). Therefore, the Bank is not entitled to relief from the automatic stay pursuant to § 362(d)(2).6
We further conclude that the Bank is not entitled to relief from the automatic stay pursuant to § 362(d)(1)7 because the debtor has provided the Bank with adequate protection of its interest in the automobile. The debtor has done so by providing for periodic payments to the Bank under her chapter 13 plan which we conclude will adequately protect the Bank’s interest if that plan is confirmed.8 In the event the plan is not confirmed, the debtor has provided that the Bank is to receive $600 from *744the funds presently held by the chapter 13 standing trustee. We conclude that that sum is adequate to protect the Bank’s interest during the interim before the confirmation or denial of confirmation of the debt- or’s plan.
We will, therefore, deny the Bank’s requested relief from the automatic stay.
. This opinion constitutes the findings of fact and conclusions of law required by Rule 752 of the Rules of Bankruptcy Procedure.
. Procedural Order No. 13 directs all debtors filing under chapter 13 of the Code to immediately begin making the payments provided under their plan to the chapter 13 standing trustee.
. The Bank did not dispute that such payments had been made but argued that they were irrelevant since no payments had been made to the bank as of that time.
. Further, the debtor asserted at the trial (and subsequently so provided) that if her plan were not confirmed for any reason she would direct that the $600 be paid to the Bank rather than returned to her.
. See note 4.
. Section 362(d)(2) provides:
(d) On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay—
(2) with respect to a stay of an act against property, if—
(A) the debtor does not have an equity in such property; and
(B) such property is not necessary to an effective reorganization.
11 U.S.C. § 362(d)(2).
. Section 362(d)(1) provides:
(d) On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay—
(1) for cause, including the lack of adequate protection of an interest in property of such party in interest;
11 U.S.C. § 362(d)(1).
. See section 361 of the Code which provides that, where adequate protection is required under § 362, such adequate protection may be provided in the form of periodic payments. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489023/ | OPINION
WILLIAM A. KING, Jr., Bankruptcy Judge.
Presently before the Court is the Complaint of First Federal Savings and Loan Association of Chester to modify the automatic stay pursuant to § 362(d) of the Bankruptcy Code.
After hearing held and in consideration of the evidence presented, the Court makes the following findings of fact and conclusions of law:
FINDINGS OF FACT
1. First Federal Savings and Loan Association of Chester (“First Federal”) is the holder of two (2) mortgages on property of the debtor located in Avondale, Chester County, Pennsylvania.
2. Debtor, Hayden Development Company, Inc., (“Hayden”) is the owner of the subject premises.
3. On September 1, 1978, Hayden executed a mortgage and mortgage note to First Federal in the sum of $553,500.00, said mortgage being duly recorded.
4. On September 19, 1979, Hayden executed a mortgage and mortgage note to First Federal in the sum of $34,500.00, said mortgage being duly recorded.
5. • As of the date of hearing, the total amount due and owing to First Federal, including interest, was $300,308.76. [N.T. 30]
6. The subject property is a residential building development with seven (7) residential building lots and six (6) single family detached dwellings. [N.T. 92]
7. Expert testimony placed the value of the property at $343,000.
8. The cost of completion of the properties which is a prerequisite to any eventual sale was placed at $55,027.00. [N.T. 83]
9. The last mortgage payment received by First Federal from Hayden was November of 1979. [N.T. 30]
10. In 1980, First Federal was required to pay the fire insurance on the improvements located at the property at a cost of $528.00. [N.T. 31]
DISCUSSION
Section 362(d) provides the standard to be applied in complaints for relief from the stay:
(d) On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay—
(1) for cause, including the lack of adequate protection of an interest in property of such party in interest; or
(2) with respect to a stay of an act against property, if—
(A) the debtor does not have an equity in such property; and
(B) such property is not necessary to an effective reorganization.
Ú U.S.C. § 362(d). Section 362(g) allocates the burden of proof on the above issues as follows:
(g) In any hearing under subsection (d). or (e) of this section concerning relief from the stay of any act under subsection (a) of this section—
(1) the party requesting such relief has the burden of proof on the issue of the debtor’s equity in property; and
(2) the party opposing such relief has the burden of proof on all other issues.
11 U.S.C. § 362(g).
First Federal alleges two (2) grounds for relief from the automatic stay: (1) lack of *767adequate protection of their interest in the property, and, alternatively, (2) that Hayden does not have an equity in the property and the property is not necessary to an effective reorganization.
First Federal need establish only one of these alternatives, found in § 362(d)(1), to support its claim for relief. See First Connecticut Small Business v. Ruark (In re Ruark), 7 B.R. 46 (Bkrtcy.D.Conn.1980).
Conflicting expert testimony was presented at the trial concerning the value of the subject property. Debtor’s appraisal indicated a market value of $343,000, a figure substantially higher than that present-, ed by the appraiser of First Federal. Based on the testimony presented and on the thorough appraisal conducted and submitted to the Court by the appraiser for debtor, the Court has found the value of the property to be approximately $343,000. However, evidence was presented indicating that market value was based upon each of the properties being completed. The amount necessary to totally complete construction is $55,027.00. Deducting this sum from the market value of $343,000, we find the equity value of the property to be approximately $288,000. Because the debt owing to First Federal has been determined to be over $300,000, Hayden lacks an equity in the subject property.
Hayden has failed to meet its burden of proving that First Federal’s interest in the property is adequately protected. Although we believe that the subject property is necessary to an effective reorganization thus precluding relief under § 362(d)(2) we find that cause has been shown for the lifting of the stay pursuant to § 362(d)(1).
CONCLUSIONS OF LAW
1. Debtor’s lack of equity in the subject property and inability to provide adequate protection of First Federal’s interest constitutes cause for the lifting of the stay pursuant to § 362(d)(1).
2. Debtor’s failure to remit mortgage payments to First Federal since November of 1979 and to pay 1980 fire insurance constitutes cause for the lifting of the stay pursuant to § 362(d)(1).
3.The stay is modified so as to permit First Federal to proceed with mortgage foreclosure. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489024/ | OPINION
WILLIAM A. KING, Jr., Bankruptcy Judge.
Presently before the Court is the motion of the United States for dismissal of the debtors’ objections to its proofs of claim, or, in the alternative, for summary judgment on its claims for 1966, 1967, 1968, and 1969 federal income taxes. The debtors have moved for dismissal of the United States’ motion. For the reasons outlined below, we will deny the United States’ motion for dismissal and issue an order to compel discovery.1
The government’s motion for dismissal is based upon Rule 37(d) of the Federal Rules of Civil Procedure,2 which permits a court to impose sanctions upon a party which fails to answer interrogatories. The sufficiency of the service of the interrogatories is not at issue, and in fact, the debtors filed answers to the government’s extensive questions on November 26, 1980. (Legal Document Nos. 51, 52]. The government’s position is that the answers are so vague and evasive as to constitute a willful, bad faith failure to comply with discovery requests.3
Accordingly, the precise issue is whether the debtors’ answers were so seriously deficient as to justify the drastic remedy of dismissal. We conclude that they were not.
It is uncontested that the government’s interrogatories consisted of eighty-five (85) detailed questions about various aspects of the Daulerios’ business activities during the 1960’s. These interrogatories were submitted to both debtors, and responses were eventually given. Frank N. Daulerio asserted that he lacked sufficient knowledge to answer most of the questions, and Mary Daulerio answered that she had no knowledge pertaining to any of the questions.4
The debtors argue that the facts the government seeks could only be drawn from records which have been lost or destroyed, *850whereas the government asserts that the Internal Revenue Service has compiled “17 accordion files” of data on the Daulerios.5 The government argues that these files were available to the debtors, and that all the interrogatories could have been answered from the materials contained therein (it remains unclear why the government seeks answers it claims it already possesses). The government then draws our attention to cases which purport to hold that the recipient of interrogatories cannot claim insufficient knowledge to answer unless he has examined all materials in his possession, or in his counsel’s possession, or accessible to either of them.6 Returning to the 17 accordion files, the government concludes that the debtors’ failure to examine them justifies dismissal under Rule 37(d).
*849(d) Failure of Party to Attend at Own Deposition or Serve Answers to Interrogatories or Respond to Request for Inspection. If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails (1) to appear before the officer who is to take his deposition, after being served with a proper notice, or (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (3) to serve a written response to a request for inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B), and (C) of subsection (b)(2) of the rule.
*850We agree that the debtors’ answers are vague, and we find that the debtors or their counsel could have examined the government’s files. However, we will not accept the government’s invitation to presume that those files contained the answers; indeed, it is conceivable that the files would be of no use in refreshing the debtors’ recollections. Moreover, the answers already provided, though vague, do not appear unreasonably or deliberately so. The events at issue occurred as many as fifteen (15) years ago, and the debtors’ assertion that relevant records have been lost or destroyed is not as incredible or suspect as the government contends.
While it is our intention to preserve this action from dismissal, we are cognizant of the need for the debtors to exhaust every reasonable method which might enable them to provide more illuminating answers to the interrogatories. Accordingly, we will treat the government’s motion for dismissal as a Rule 37(a) motion to compel discovery, and we will grant the motion in that form.
The government's alternative request is for summary judgment as to its claim for income taxes for the years 1966 through 1969. The government argues that the debtors’ failure to respond to the interrogatories should be treated as an admission of their accuracy. In view of our decision to compel the debtors to re-formulate their answers, we need not address this issue.
. This opinion constitutes findings of fact and conclusions of law in accordance with Bankruptcy Rule 752.
.. Rule 737 of the Rules of Bankruptcy Procedure makes Rule 37 of the Federal Rules of Civil Procedure applicable to adversary actions in bankruptcy. Rule 37(d) provides, in pertinent part, that:
. The government relies upon Fox v. Studebaker-Worthington, 516 F.2d 989 (8th Cir. 1975) and Alliance to End Repression v. Rochford, 75 F.R.D. 438 (N.D.Ill.1976) for this proposition, but we find, as noted below, that the debtors’ answers are not so unresponsive or outlandish as to constitute no answer at all.
. Debtors’ answers to United States’ Interrogatories. [Legal Document Nos. 51 and 52],
. United States’ Motion, at 4; Affidavit of Anthony Anastasia, case manager of Internal Revenue Service, Wilmington, Delaware, at 1.
. See, Miller v. Doctor’s General Hospital, 76 F.R.D. 136 (W.D.Okl.1977); N. L. R. B. v. Rockwell Standard Corporation Transmission and Axle Division, 410 F.2d 953 (6th Cir. 1969); Olmert v. Nelson, 60 F.R.D. 369 (D.D.C. 1973). | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489027/ | MEMORANDUM OPINION
WILLIAM A. SCANLAND, Bankruptcy Judge.
The debtor, Josephine Garcia, hereinafter called Plaintiff, filed an action to have a trust deed which she gave to Stamat Enterprises, Inc., dba Factory Applicators, hereinafter called Defendant, declared void under one of several theories. Upon motion made by the Defendant, Plaintiff made an election to proceed under a rescission theory and amended her complaint seeking the deed of trust be declared void.
The facts of this matter are that on or about February 20,1979, at her residence in Tucson, Arizona, Plaintiff signed what is called an Agreement and Contract with Defendant to have certain aluminum siding placed upon her home and a second structure she called a storage home. She also signed a Credit Application and a Deed of Trust and Home Modernization Sales Contract. See Plaintiff’s Exhibits 3 and 5 and Defendant’s Exhibit 1. It should be noted that her husband, Antonio V. Garcia, did not sign the Deed of Trust nor did the wife sign in the presence of a notary public. Work was completed on or about March 1, 1979, and Plaintiff signed a Delivery Receipt for Merchandise Purchased.
The Plaintiff and her husband, Antonio V. Garcia, originally acquired this property on or about February 1, 1976. Subsequent to March 1, 1979, Antonio V. Garcia quit claimed his interest to Plaintiff.
The Plaintiff pleads as grounds for setting the deed aside: (1) fraud or false representation; (2) a violation of Section 33-452 A.R.S. (1956); (3) a violation of 15 U.S.C.A. § 1601 et seq., and in particular § 1635, commonly known as the Truth in Lending Act; and (4) violations of Part 226 of Title 12 of the Code of Federal Regulations, commonly known as Regulation Z.
Section 33^452 provides:
“... an incumbrance of community property is not valid unless executed and acknowledged by both husband and wife, except unpatented mining claims which may be ... incumbered by the spouse having the title or right of possession without the other spouse joining in the conveyance or incumbrance.”
This statute has been interpreted by the Arizona Appellate Courts in several cases.
In Munger v. Boardman, 53 Ariz. 271, 88 P.2d 536 (S.Ct.1939), the Arizona Supreme Court held that:
“... [Njeither spouse may incumber, by mortgage or lease or otherwise, or sell or dispose of, community realty without the consent of the other. It is necessary that they join in any such transaction affecting realty of the community.”
However, the Plaintiff and her husband took title to the property involved in joint tenancy which removes it from the community property status. McClennen v. McClennen, 464 P.2d 982, 11 Ariz.App. 395 (1970); Gardner v. Gardner, 596 P.2d 711, 122 Ariz. 573 (1979).
It is clear that a joint tenant can mortgage her interest in real property without the consent of the other joint tenant. 33-701 A.R.S. (1956) provides that any interest in real property capable of being transferred may be mortgaged. This stat*12ute has been upheld in Cooley v. Veling, 505 P.2d 1381, 19 Ariz.App. 208 (1973). See also United States v. Jacobs, 306 U.S. 363, 59 S.Ct. 551, 83 L.Ed. 763 (1939).
15 U.S.C.A. § 1601 et seq., known as the Truth in Lending Act, provides in 15 U.S. C.A. § 1635 that a consumer credit transaction in which a security interest is acquired in real property which is used as the residence of the person to whom such credit is extended, the obligor, in this case the debt- or, shall have a three-day period within which to rescind the transaction. This section goes on to say:
“... The Creditor shall clearly and conspicuously disclose, in accordance with regulations of the Board, to any obligor in a transaction subject to this section the rights of the obligor under this section.”
The failure to give notice of this three-day limitation within which the obligor can rescind has been passed on by several cases. In LaGrone v. Johnson, 534 F.2d 1360, (9th Cir. 1976), the Ninth Circuit Court of Appeals held that omissions in disclosures given a borrower including failure to set forth an acceleration clause in a broker’s statement and to disclose the amount financed and the inclusion of information not required to be disclosed by this subchapter without delineating additional material from mandatory data precluded the three-day period for rescission from running. In the instant case, the Plaintiff testified that the agreements she signed on February 20, 1979, were in blank and that the information written in was placed in such agreement following her execution of such instrument. She also stated she did not receive any information concerning her right to rescind the agreement. This Court finds that there was not disclosure made to the debtor and on this ground the Trust Deed should be avoided. See also Pedro v. Pacific Plan of California, 393 F.Supp. 315 (N.D.Cal.1975).
This Court does not find it necessary to rule on the allegations of fraud or misrepresentation pleaded by the Plaintiff. This Court does find there was a violation of Part 226 of Title 12 of the Code of Federal Regulations, commonly known as Regulation Z, in that the Deed of Trust and Home Modernization Sales Contract was not completed and the various blanks were not filled in when the Plaintiff signed such document on February 20,1979. This Court further finds that it is impossible for the Debtors to tender the siding placed on her residence back to the Defendant. In any event, the Defendant has a right to file an unsecured claim in the Debtor’s estate, and it has twenty (20) days following the final judgment to so file.
Defendant’s counsel moved for the introduction of the written interrogatories submitted to one Dennis Guenther. The interrogatories and the answers marked for identification by Defendant are not signed by the witness, Dennis Guenther, and were not answered under oath. For such reason the offer to introduce such written interrogatories and the answers thereto is denied. See Rule 33 of the Federal Rules of Civil Procedure, Nagler v. Admiral Corporation, 167 F.Supp. 413 (S.D.N.Y.1958).
This Memorandum Opinion shall serve as Findings of Fact and Conclusions of Law under Bankruptcy Rule 752. Plaintiff’s counsel IS ORDERED to file a written form of judgment and cost bill within ten (10) days from date. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489028/ | MEMORANDUM
RALPH H. KELLEY, Bankruptcy Judge.
The trustee brought this suit against the bank to recover two allegedly preferential transfers.
The transfers were two payments of interest due to the bank on two promissory notes executed by Ten-Vol Sales or D G & Associates in return for loans from the bank. The bankrupt is a successor to Ten-Vol Sales Company.
The payments were $423.51 paid on June 4, 1979, and $450.00 paid on July 23, 1979. The company filed its petition in bankruptcy on September 12, 1979.
In May, 1977 Ten-Vol Sales Company or Ten-Vol and Associates borrowed $10,000 from the bank and executed a note for repayment. The note was due in 90 days.
In July, 1978, Ten-Vol or its successor, D G & Associates, arranged for a $50,000 loan or line of credit from the bank. The loan was to enable the company to fill a purchase order from a New Orleans buyer. As collateral for the loan the company assigned its right to payment from the buyer. The total purchase price was about $119,000.
The promissory note executed in connection with the loan was due in 63 days. It *31was to be paid on completion of the contract with the buyer. The company had bought the goods and was in the process of shipping them ‘when it discovered that the purchase order was no good.
William Earl Dove was a principal in the business and dealt with the bank in obtaining both loans. He is also a co-signer of the promissory notes. When he learned that the purchase order was not any good, he immediately went to the bank and told Mr. Golden. Mr. Golden suggested that he just hold on and see if he could sell the merchandise.
The business continued to sell the merchandise but no one bought any large quantities. According to Mr. Dove, the business was on the verge of going under when the first payment in question was made, and he had told Mr. Golden that it was bad. The business never paid any principal on either note. It made interest payments fairly regularly so that the notes were renewed. Mr. Dove testified that he didn’t receive any late notices but was called about a dozen times, and each time he told Mr. Golden about the condition of the business.
The bank called only one witness, Edmond D. Busek, a vice-president of the bank. He testified that nine interest payments were made on the first note and five were made on the second note.
Judging from the time of the payments, the regular renewals, and the number of interest payments made, the court concludes that the payments in question were made about the time of maturity of the notes and for their renewal.
Discussion
The trustee cannot recover unless at the time of payment the debtor was insolvent. 11 U.S.C. § 96(a) (1976); Bankruptcy Act § 60(a). Mr. Dove did not directly answer the question of whether the business’s liabilities were greater than its assets at the time of the payments. His other testimony is substantially to the effect that the business was insolvent at the time. It was bad, about to go under, and didn’t get any better near the end, i. e., shortly before bankruptcy. It is evident that the business owed the bank alone $60,000.00 on which it had been unable to make payments on principal for a considerable length of time. The business acquired the goods to be sold under the contract that became worthless but lost the expected $119,000 purchase price. The court concludes that the business was insolvent at the time of the payments in question.
The trustee cannot recover the payments unless at the time they were made the bank had reasonable cause to believe the debtor was insolvent. 11 U.S.C. § 96(b) (1976); Bankruptcy Act § 60(b). The court believes that the bank had reasonable cause to believe the debtor was insolvent.
Reasonable cause exists if the creditor knew of facts sufficient to lead a prudent businessman to inquire and a reasonably diligent inquiry would have revealed the insolvency or facts from which insolvency would be apparent. 3 Collier on Bankruptcy ¶ 60.53 at 1057-1066.1 (14th ed. 1975). In this case the bank immediately learned of the failure of the contract that secured and was meant to pay the $50,000 loan. The bank had received only interest payments on a $10,000 loan made in mid-1977. It received only interest payments on the $50,000 loan. Mr. Dove talked with Mr. Golden several times and kept him apprised of the business’s worsening position. In such circumstances the bank is not absolved because it only went along with the business in the hope that things would get better. No doubt that is often the case when a lender knows the borrower is insolvent or knows facts that should lead it to discover the borrower’s insolvency. The preference provisions of the bankruptcy law are based on the policy of equality of distribution. 3 Collier on Bankruptcy ¶ 60.01 (14th ed. 1975). That policy controls even if the preferred creditor refrained from earnest collection efforts in the hope that the borrower would survive its difficulties and pay its debts. In this case the facts were sufficient to lead the bank, if it acted prudently and conducted a reasonably diligent investigation, to the conclusion that the *32business was insolvent at the time of the payments. See, e. g., Eureka-Carlisle Company v. Rottman, 398 F.2d 1015 (10th Cir. 1968); In re Cichanowicz, 247 F.Supp. 975 (E.D.N.Y.1965) aff’d per curiam 353 F.2d 538 (2d Cir. 1965).
The bank also contends that the interest was not an antecedent debt. The court must emphasize that since the collateral proved valueless neither loan was secured.
Whether the argument is good depends first on the meaning of antecedent debt. The discussion in Collier on Bankruptcy says little about when a debt comes into existence. Most of the discussion focuses on whether the challenged transfer resulted in a diminution of the bankrupt’s estate or on whether the bankrupt received present consideration in exchange for the transfer. 3 Collier on Bankruptcy ¶¶ 60.19-60.29 (14th ed. 1975).
One group of the discussed cases is not relevant to the question in this proceeding. Those are cases where the debt was clearly antecedent but the transfer on account of it did not result in a diminution of the assets available to other like creditors. In such cases the creditor could not have been preferred over other creditors.
Most of the remaining cases deal with whether in exchange for the transfer the creditor gave the bankrupt new consideration at the time or thereafter. 3 Collier on Bankruptcy ¶ 60.19 (14th ed. 1975).1 It is important to distinguish the cases in this group where there clearly was no diminution of the estate (no preferment) because the new consideration added a valuable, identifiable asset, e. g., money lent or goods delivered. All that is required is that the bankrupt receive something of value contemporaneously with and in exchange for the transfer. For example, in many cases it would be impossible to determine accurately how a bankrupt employer’s assets were increased by the employees’ labor. But labor is certainly a thing of value. Payment of current wages is not payment of an antecedent debt.
A transfer made in return for a consideration which the transferor receives at the same time or thereafter ... is not a preference because not made “for or on account of an antecedent debt.” Thus the mere exchange of property of equal value ... does not constitute a preference. And where a creditor takes and perfects security from an insolvent debt- or, even within the four months’ period, he does not receive a voidable preference if the consideration was a loan or advance of money or property to the bankrupt, or a promise (later actually fulfilled) of future credit, made at the same time the security transfer was perfected .... In the same category are also advancements upon security for current business operations, or expenses. Likewise, payments of currently earned wages are not preferential in this respect, inasmuch as the labor performed constitutes a present consideration; and current payments of rent may be said to rest on a present consideration.
3 Collier on Bankruptcy ¶ 60.19 at 847-853 (14th ed. 1975).
It is apparent that whether a debt was antecedent usually depends on when the bankrupt received the consideration giving rise to the debt.2 If the transfer was in return for consideration then or thereafter received from the creditor, then the transfer was not on account of an antecedent debt.
That leads the court to the problem in this case. What consideration did the bankrupt receive in return for the payments of interest?
Arguably renewal of the notes was new consideration given in return for the interest payments. But the renewals did not give the bankrupt any more money. The bank did forbear from collecting the principal, which is the same as saying the *33bankrupt was given continued use of the principal. But if the bank had attempted to collect, its collections would have been in the preference period and recoverable by the trustee. Michigan Fire & Marine Ins. Co. v. Genie Craft Corp., 195 F.Supp. 222, 224 (D.Md.1961). The bankrupt’s future use of the money or the bank’s forbearance to collect the principal were not new consideration that made the interest payments nonpreferential. See also In re O’Neill Enterprises, 359 F.Supp. 940 (W.D.Va.1973).
The more difficult question is whether the bankrupt’s past use of the money was contemporaneous consideration. For the purpose of the preference statute the court should look first to when the bankrupt received the consideration free of any rights in the creditor. National City Bank of New York v. Hotchkiss, 231 U.S. 50, 34 S.Ct. 20, 58 L.Ed. 115 (1913); Stock Clearing Corp., Inc. v. Weis Securities, Inc., 542 F.2d 840 (2d Cir. 1976) (In re Weis Securities, Inc.)
The question is complicated in the case of a loan because the consideration given by the lender is not just money but time. The borrower receives the money and the right not to repay it for the agreed time and in return promises to pay a charge, interest, based on the amount of money lent and the time for which it is lent.
The question is further complicated because of the meaning of consideration. Consideration may be a promise. At the last renewal of the notes before the payments in question, the bank promised not to demand payment until the notes again came due. The court could say the consideration for the payments in question passed then because the bankrupt became entitled to the time during which the interest accrued.
On the other hand, each day that a borrower does not have to repay the loan is of value. Arguably the consideration or value is given only as the promised time elapses. On that theory, the payment of interest as it accrues is payment for consideration contemporaneously received. But to say that the value is given only as the time elapses assumes the lender has control after the money has passed to the borrower. Once the lender has made the advance without security and agreed to payment at a later date, it cannot cut short the time unless there is some other default, and if it could there would be no specific property it could retake.
Likewise, payment of interest on a loan differs from the payment of rent for the use of a building, machinery, or the like. If the lessee doesn’t pay the rent, there is something the lessor can retake. Once a lender makes an unsecured loan it is merely an unsecured creditor. There is no specific property it can retake if the borrower fails to pay.
Furthermore, the use of money over time and the use of a building or a machine are not alike. Once a borrower has the money he has all its use. The postponement of repayment usually gives the borrower time rather than actual use. For essentially the same reason interest is unlike wages. An employee cannot retake his labor but the labor was given when done. It was consideration other than postponement of the time for payment.
There is one other question as to whether interest is an antecedent debt. The lender and borrower may agree that the borrower will be liable only for the earned interest and will pay it as it accrues. In that case it can be argued that even if the right to the time is given when the loan is made, the interest debt comes into existence only as the time passes.
The argument would be more convincing in a case where the borrower was to pay the interest as it accrued before maturity of the note. But the argument is doubtful in any case where the debt is unsecured. In this case each note provided for a rebate of unearned finance charges when the principal was paid. The provisions may contemplate transactions with installment payments. They may also mean that the bankrupt would have been entitled to a deduction of unearned interest if it had paid the principal before maturity.
*34In any event the court does not think the provisions save the interest in question from being antecedent debt. A prepayment clause allows the borrower a deduction of interest if he pays the principal debt before maturity of the note. Davis v. Hinton, 519 S.W.2d 776 (Tenn.1975). That is not the same as making the borrower liable only for the interest that accrues as it accrues.
These notes were for principal and interest at maturity. The payments were interest due at maturity when the principal was also due, rather than interest accruing during the terms of the notes. The bank gave up the consideration, the time and the money, when the notes were last renewed before the payments in question. The situation was essentially like the incurrence of one debt, principal and interest, to be paid later. The court holds that the interest was antecedent debt.
The trustee is therefore entitled to recover the two payments as preferential transfers. An order will be entered accordingly.
This memorandum constitutes findings of fact and conclusions of law. Bankruptcy Rule 752.
. The net result cases involve the giving of new value by the creditor but not directly in exchange for the challenged transfers. 3 Collier on Bankruptcy ¶ 60.23 at 876.1 (14th ed. 1975).
. As to debts for tortious injuries another rule is necessary. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490189/ | FINDINGS OF FACT AND CONCLUSIONS OF LAW RE: MOTION TO LIFT STAY
JON J. CHINEN, Bankruptcy Judge.
The Motion to Lift Stay filed by Hawaii National Bank, Honolulu (“Movant”) came on for hearing before the undersigned judge on September 4, and November 6, 1985. Movant appeared through its attorney, Emmet White, Esq., and James A. and Theolinda Gomes, (“Debtors”), appeared through their attorney, Joseph S.Y. Hu, Esq. The Debtor James A. Gomes was also present. The Court having heard and considered the testimony together with the exhibits and memoranda herein and the arguments of counsel and being fully advised in the premises, makes the following Findings of Fact and Conclusions of Law.
FINDINGS OF FACT
1. This Court has jurisdiction to hear this matter pursuant to Bankruptcy Rules 4001(a) and 9014 and section 362 of the Bankruptcy Code.
2. The subject of the motion to lift stay consists of that certain fee simple real property situated on Ahuimanu Road, Ka-haluu, Koolaupoko, Oahu, Hawaii, having tax key no. 4-7-48-12, First Division, with an area of approximately 34.308 acres.
3. Movant is a bank authorized to do business in the State of Hawaii and has its principal place of business in Honolulu, Hawaii.
4. Debtors are residents of the County of Honolulu, State of Hawaii.
5. Movant has a first mortgage, an additional charge mortgage and a second mortgage on the subject property.
6. For Debtor’s failure to pay the monthly sums under the mortgages, Mov-ant initiated a foreclosure action in the state circuit court in January 1984. On February 28, 1985, the circuit court entered *503its Findings of Fact; Conclusions of Law; Order Granting Plaintiffs Motion for Summary Judgment and for Interlocutory Decree of Foreclosure (“Order”). Said Order appointed a commissioner to sell the subject property at public auction. (A copy of said Findings of Fact; Conclusions of Law; and Order was introduced in evidence as Plaintiff’s Exhibit “1”.)
7. The public auction was scheduled for May 1, 1985. However, on April 30, 1985, prior to the scheduled auction, Debtors filed their petition for voluntary petition under Chapter 11 of the United States Bankruptcy Act. (11 U.S.C. Chapter 11). By reason of Debtor’s interest in the property, the scheduled auction and Movant’s foreclosure action were stayed pursuant to Section 362 of the U.S. Bankruptcy Code.
8. Based upon the testimony of Roland Regidor, Movant’s employee, and the preliminary title report (Plaintiff’s Exhibit 2), the Court finds the following breakdown of the indebtedness from Debtors to Movant:
1st Mortgage with Movant Principal
Balance $50,000.00
Accrued Int. 6/28/83 to 7/31/85 14,163.78
$64,163.78
Additional Charge Mortgage with Movant Principal Balance $50,000.00
Accrued Int." 6/28/83 to 7/31/85 14,163.78
$64,163.78
2nd Mortgage with Movant Principal
Balance $20,000.00
Accrued Int. 6/28/83 to 7/31/85 5,673.68
$25,673.68
Advances:
Attorney’s Pees paid from 3/9/84 to 1/31/85 $ 3,302.00 Attorney’s Costs 217.37
Lien Report 104.00
Lot Book Report 67.20
Filing Fees 6.00
$ 3,696.55
The Interlocutory Decree Foreclosure (Plaintiff's Exhibit “1”) provides for per diem interest at the rate of $50.95 -per day, plus attorney’s fees and costs.
9. In addition, other liens on the subject property are as follows:
Delinquent Real
Property Taxes to 4/1/85 $ 4,408.29
3rd Mortgage with Brian R. Cook Original
Principal $20,000.00
Federal Tax Lien
9/13/83 398.68
Federal Tax Lien 1/3/84 317.03
$25,124.10
10. The total liens as calculated above is $182,821.79.
11. Marcus Nishikawa, the court-appointed commissioner, testified that 18 people attended the auction. However, he announced that the auction was postponed as a result of the filing of the bankruptcy petition by Debtors. He also stated that there had been an offer to purchase the property for $170,000.00 in cash.
12. Jon F. Yamaguchi, on behalf of Movant, testified, as a qualified appraiser, that the market value of the subject property, under an Appraisal dated March 16, 1985, which he had rendered pursuant to Mr. Nishikawa’s request, and was introduced into evidence as Plaintiff’s Exhibit “3”, was $206,000.00 (approximately $6,000.00 per acre). Mr. Yamaguchi also opined that at an auction-type sale, the estimated value was between $155,000.00 and $175,000.00.
13. In arriving at his estimated market value, Mr. Yamaguchi researched and physically inspected 12 preservation zoned comparable properties in the Windward district which had been sold during the previous five years. He testified that presently, the highest and best use of the subject vacant land was for one single family residential unit on the entire acreage.
14. Mr. Adolph Mendonca, on behalf of Debtors, testified, as a qualified appraiser, that the market value of the subject property, under an Appraisal dated May, 1984, which he had rendered pursuant to Mr. Gomes’ request, and was introduced into evidence as Defendant’s Exhibit “1”, was $307,159.00 (approximately $8,953.00 per *504acre) and “fill” material was $100,000.00. Mr. Mendonca estimated the “fill” material will bring in at least a million dollars, but he gave it a value of only $100,000.00. He did not present any evidence of any demand for such fill or the time or cost to sell such fill.
15. Mr. Mendonca used only one comparable in his Appraisal, a 1979 sale. This comparable is the same as Comparable No. 8 in Mr. Yamaguchi’s Appraisal.
16. In arriving at the estimated market value in his Appraisal, Mr. Mendonca considered the possibility and probability of re-zoning the land to a classification which would permit subdividing the land into smaller lot sizes.
17. In his testimony, Mr. Mendonca mentioned a grading contract for 5.5 acres of the subject parcel, but the contract was not further identified or placed into evidence.
18. Mr. Mendonca further testified that it would take a long time to completely subdivide the subject parcel, perhaps up to 30 years. He did not submit any plan for a subdivision, did not estimate the cost of such subdivision.
19. ' Mr. Mendonca also testified that the value of the subject land “as is” on the day of his testimony (November 6, 1985), was at least $5,000.00 per acre.
20. Mr. Gomes testified that he has not made an application for subdivision of the subject property. He also testified that he had a grading permit but that it had been cancelled and that presently he did not have a grading permit.
21. Mr. Gomes testified that in the late 1970s, he sold the parcel for $570,000.00 on an Agreement of Sale, but had to take the property back because the purchaser could not perform. He also estimated the value of the fill material to be worth approximately $2,250,000.00. But he produced no evidence of any demand for such fill nor the time and cost of selling such fill.
CONCLUSIONS OF LAW
1.The Court finds that the total indebtedness encumbering the property as of December 31, 1985 will be $190,635.00, plus additional attorney’s fees and costs.
2. Because neither Mr. Gomes nor Mr. Mendonca offered any plan of subdividing the property, showing the expected costs of any subdivision and the definite time necessary to complete a sale of the subdivided property, the Court finds that there is insufficient basis to consider any subdivision of the property towards its market values, and that it is too speculative in nature.
3. Whereas, Mr. Yamaguchi’s studied 12 comparables in arriving at his market value, Mr. Mendonca used only one comparable, being one of the 12 used by Mr. Yamaguchi. Thus, the Court finds in this case Mr. Yamaguchi’s appraisal more reliable than that of Mr. Mendonca.
4. Though both Mr. Mendonca and Mr. Gomes estimated the value of the fill about $1,000,000.00 and $2,250,000.00 respectively, Mr. Mendonca actually gave it a value of $100,000.00. This shows the speculative nature of their estimate. There is no permit to grade the fill. No plan has been submitted for obtaining such a permit and the conditions that must be met and the time necessary to obtain such a permit were never discussed. Also, neither Mr. Mendonca nor Mr. Gomes presented any evidence of any demand for the fill and neither one estimated the time and cost necessary to sell the fill. The Court therefore, gives only a present nominal value of $15,000.00 to such fill.
5. Based on Mr. Yamaguchi’s appraisal of $208,000.00, plus the fill material at $15,-000.00, the Court finds the present market value of the subject property to be $223,-000.00.
6. As of December 15,1985, the amount of lien on the property is approximately $190,000.00, plus attorney’s fees and costs. Since the property is worth $223,000.00, there appears to be an equity of 33,000.00. However that equity is insufficient.
7. If the property is sold at $223,000.00, there must be deducted real estate commission and closing costs estimated at 10% of *505the sale or $22,300.00. In addition, if it takes 6 months to sell and close the sale, which period is very optimistic, there will be additional interest in the sum of $9,891.00.
8. Deducting $31,191.00 ($22,300.00 plus $9,891.00) from $223,000.00 leaves a net of $191,909.00. Since there will be owing $190,635.00 plus attorney’s fees and costs as of December 31, 1985, the Court finds that there is no adequate protection to the Bank and hereby lifts the stay.
An Order will be signed upon presentment. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490630/ | ORDER ON PROPOSED AGREED ENTRY
BARBARA J. SELLERS, Bankruptcy Judge.
The debtors David and Sarah Hayes, through their counsel, and the Ohio Student Loan Commission, through the Attorney General for the State of Ohio, have submitted a proposed agreed entry for the Court’s approval. For reasons stated below, the Court will not execute that order.
These debtors filed a petition under the provision of Chapter 13 of the Bankruptcy Code on July 2,1987. Their proposed plan, as amended, was confirmed by the Court on October 7, 1987. The plan provides for payments of $111.49 bi-weekly to the Chapter 13 Trustee, payment in full of all allowed secured claims and a dividend of 70% to all allowed unsecured claims. It is anticipated that the plan will require approximately 44 months for completion.
Among the debtors’ unsecured creditors is the Student Loan Servicing Center (“SLSC”). SLSC is owed $3,066 for monies advanced to David Hayes for educational purposes. Those loans are evidenced by two notes, both of which carry the signature of a co-maker. Subsequent to confirmation of the plan, SLSC’s obligation was transferred to the Ohio Student Loan Commission (“OSLC”) pursuant to the terms of a guaranty arrangement.
On October 14, 1987 OSLC sought relief from the stay imposed by 11 U.S.C. § 1301 to proceed against the co-maker for the portion of the obligation to OSLC not proposed to be paid through the Chapter 13 plan. That relief was opposed by the debtors. Prior to the time of the scheduled court hearing on the matter, the parties represented to the Court that an agreement had been reached between the parties. Presumably the proposed agreed entry embodies that settlement.
As proposed, the agreed entry provides that the debt to OSLC shall be declared voluntarily to be a long term debt excepted from the debtors’ anticipated discharge at the conclusion of their plan pursuant to 11 *3U.S.C. § 1328(c)(1). Section 1328(c)(1) provides, in applicable part:
“A discharge granted under subsection (b) of this section discharges the debtor from all unsecured debts provided for by the plan ..., except any debt—
(1) provided for under section 1322(b)(5) of this title.”
First, the Court notes that § 1328(c) relates only to a so-called “hardship discharge,” granted by the Court on a discretionary basis upon the request of a debtor if certain conditions have been met. No such discharge has been requested in this case and no indication exists that such relief will be sought. Apart from that erroneous citation of authority, however, § 1328(c)(1), or more appropriately, its counterpart set forth in § 1328(a)(1), pertains only to debts provided for in a plan under 11 U.S.C. § 1322(b)(5).
Section 1322(b)(5) of Title 11 provides an optional treatment for certain long term debts. If an obligation is one for which the repayment term exceeds the length of the Chapter 13 plan, the debtor may elect to treat that obligation under the plan by curing any pre-petition arrearage and otherwise maintaining the normal periodic payments on the obligation during the Chapter 13 case. No such treatment of OSLC’s claim was proposed in these debtors’ plan. Accordingly, the exception to discharge for debts provided for under § 1322(b)(5) is not appropriate.
Based upon the foregoing, the Court will not enter the proposed agreed entry.
IT IS SO ORDERED. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490632/ | MEMORANDUM OPINION
STEPHEN B. COLEMAN, Bankruptcy Judge.
The mystery in this case is, “where is Mrs. Spain’s right of survivorship?” and if she has lost it, “how did she do it”?
An apology must go to the Court of Appeals for not properly bringing before the Court the facts which rival the confusion discussed by Dickens in his novel, Bleak House. There were many ways to decide this case, but the Court conceived that the unanswered question of the trustee's lack of title needed to be dealt with, and was one of the main reasons for denying the trustee’s Complaint.
Mrs. Spain is a long-time school teacher. She purchased her home with her husband, within walking distance of the Mountain Brook High School where she was teaching, on the 13th day of August, 1973. At the time of the purchase of their home, due to the confusion in the law and its unsettled state, the Spains employed a reputable title lawyer to draft the deed, expressing their desire to be sure that if one died, the other would, by operation of law, succeed to full ownership without further court action and despite what the other, unilaterally, would do. The deed followed form 5 described by Circuit Judge Carl in his article hereafter discussed, and as drafted, contained the following language in the granting clause, “for and during their joint lives and upon the death of either of them, then to the survivor of them in fee simple, together with every contingent remainder and right of reversion”, and the following language in the habendum clause, “for and during their joint lives and upon the death of either of them, then to the survivor of them in fee simple, and to the heirs and assigns of such survivor forever, together with every contingent remainder and right of reversion,” making the language in form 5 and the language in the Spain deed identical, and we quote from Judge Carl’s article as follows:
That language clearly creates a concurrent ownership and a survivorship interest. It’s not as clear which one it creates and thus whether such survivorship interest is destructible or indestructible. The language uses the word “joint” in its reference to the “joint lives” of the grantees, but it also provides that upon the death of one of the grantees the interest will pass to the survivor “in fee simple”. The deed also refers to contingent remainders. Technically, under a joint tenancy the survivor takes nothing by survivorship because he had always owned the whole. The death of the other joint tenant merely removes an impediment to the survivors (sic) complete ownership. The other deeds that create joint tenancies do use language to the effect that if one grantee survives the other “the entire interest in fee simple shall pass to the surviving grantee,” but those deeds clearly establish that they intended to create a joint tenancy, with right of survivorship. The language in the fifth form will very likely have to be interpreted by the courts some day and the courts may very well look beyond the language in the deed to other evidence in order to determine the intent of the parties at the time the deed was executed.1
*63If the purchase had been made nine months earlier, these questions would not have arisen and many questions raised by this case would not need to be dealt with.
The Spains paid Eleven Thousand Two Hundred and no/100 Dollars ($11,200.00) cash and executed a purchase money mortgage for Forty Four Thousand Eight Hundred and no/100 Dollars ($44,800.00), with monthly payments of approximately Three Hundred to Four Hundred and no/100 Dollars ($300.00 or $400.00). They executed a second mortgage on the house to Peoples Bank & Trust, Booneville, Mississippi, for Fifteen Thousand and no/100 Dollars ($15,-000.00), and at the time of bankruptcy, had no equity.2
William Harold Spain filed a Chapter 7 petition on the 9th day of October, 1979, and John Whittington qualified and served as Trustee. Although Spain claimed the home exempt, the trustee apparently never dealt with this claim of exemption and this fact is discussed later in this Opinion.
Mr. Spain had been in the automobile sales business with his father in Mississippi. The Court has struggled with the bankruptcy case through eleven adversary proceedings, as well as a suit between Spain and Nissan Motors, which ended up in a trial by jury in the District Court after several years. There were other suits involving Spain in the Mississippi State Courts and an administrative matter involving considerable litigation is still pending in the state court in Mississippi.
The trustee has accumulated a very small cash estate, but the case is essentially no-asset unless the trustee can sell the home.
In the eight years of the trustee’s tenure, no effort was made by the trustee to gain possession of the real estate. He testified he drove by the house in his car with a real estate agent, Jane Clements, on one occasion, but never went into the house.
Rarely has such a controversy been created by a decision dealing with the important question of the title to land as by the case of Nunn v. Keith, 209 Ala. 518, 268 So.2d 792 (1972).
As explained in Nunn, the law recognizes two estates in land, among others, by which a husband and wife may hold title to their home, both dating from the English common law. In 1945, the Alabama legislature revived survivorship by joint tenancy by amending Title 47, § 19 of the Code of Alabama 1940, by adding as follows:
... provided, however, that in the event it is stated in the instrument creating such tenancy, that such tenancy is with right of survivorship, or other words used therein showing such intention, then upon the death of one joint tenant, his interest shall pass to the surviving joint tenant or tenants according to the intent of such instrument. Code of Alabama, 1940 (Recomp.1958), Title 47 Section 19 [Code of Alabama 1975 Section 35-4-7.]
One of the purposes was to protect the wife by insuring her a safe ownership of a home for her life at the possible disadvantage of the husband’s would-be heirs, including sometimes his children.
The “right of survivorship” was held indestructible in the case of Bernhard v. Bernhard, 278 Ala. 240, 177 So.2d 565 (1965), and immune from any ex parte acts of the husband, but subject to their joint voluntary desire. This statutory indestructibility was nullified by Nunn v. Keith, supra, holding that certain ex parte acts by the husband alone could deprive the wife of her rights. Simply put, Nunn returned to joint tenancy as defined at common law, in effect changing the law of Alabama and declaring a legislative purpose different from that declared in Bernhard. The Nunn decision created consternation, confusion and frustration among the Bench and the Bar. Lawyers had written hundreds of deeds for clients in the eight year “window” in reliance on Bernhard. All of this is revealed in the Nunn decision and many articles, treatises and opinions were *64written.3
Since the two named decisions give a comprehensive and learned discussion and history of joint tenancies, it should be sufficient to merely refer to them. Many articles, treatises and opinions have dealt with this subject and it is fair to say that confusion seems to reign supreme.
Justice James Coleman, in his dissenting opinion in the Nunn case foresaw of the discord, dismay and dissension that followed:
I do not agree that the legislature intended to forbid the conveyance or devise of land to two or more persons during their joint lives with the entire fee to pass to the last survivor on the death of the other grantees. Such a conveyance creates an estate different from a common law joint tenancy. Nunn v. Keith, 268 So.2d at 801.
Since the title to land must go somewhere, it was declared that the destruction of the joint tenancy left the landowners as tenants in common. Chief Justice Torbert, in Durant v. Hamrick, 409 So.2d 731 (Ala.1981), declared a solution for the dilemma by recognizing another form of concurrent ownership of property with provisions for survivorship, to wit:
... as tenants in common for life with cross-contingent remainders in fee, indestructible as at common law. Durrant v. Hamrick, 409 So.2d at 738.
Since joint tenancy is now destructible, and thereby anathema to lawyers, they have shunned the use of that method of holding land by husband and wife. It is hoped the legislature will come to the rescue. In the meantime, drafters of deeds do so at their peril and some malpractice suits have been filed.
J.N. Holt, attorney for the trustee, is perhaps the most resourceful and knowledgeable bankruptcy lawyer in the state. John Whittington, the trustee, is recognized as the authority on Chapter 11 petitions in Alabama and possibly the nation. There are newspaper articles to support these assertions. Mr. Holt openly asserts that the trustee is a co-owner with Mrs. Spain of her home and has the right to occupy, jointly, with her. Fortunately, for him, he has not tried to put this notion in practice.
Section 70(a) of the former Bankruptcy Act provided:
The trustee of the estate of a bankrupt and his successor or successors, if any, upon his or their appointment and qualification, shall in turn be vested by operation of law with the title of the bankrupt as of the date of the filing of the petition initiating a proceeding under this Act, except insofar as it is to property which is held to be exempt, ... Section 70(a) of the Bankruptcy Act of 1898 (11 U.S.C. Section 110).
The Reform Act of 1978 dropped this provision and instead created property of the estate by Section 541. Contrary to common understanding, property of the estate does not pass to the trustee. He has a right to sell non-exempt property in proper cases and circumstances under Section 363.
Presumably, the trustee’s rights vested as of the date of the filing of the petition. Mr. Holt asserts the trustee acquired the debtor’s half interest on that date and he continued to own, jointly with Mrs. Spain, sale or no sale. He has assumed no burdens, paid no taxes, interest or mortgage payments.
Unless he becomes a joint tenant or tenant in common by operation of law, the trustee must establish his status or title *65before commencing suit. Otherwise, he has no standing to maintain an action.
The trustee has three hurdles: (1) Settlement of the homestead. (2) The lack of trustee’s title or tenancy, and (3) Equity in the property, which he must establish by evidence.
Unless there is equity in the property above the mortgages and encumbrances and the homestead exemption, the trustee can acquire no title or right to sell.
For more than ten years this Court has attempted to assess the damage done the trustee by the 1978 Act. It eliminated the order of adjudication with all its legal implications. Instead, it made the claim of exemptions in Schedule B-4 all important and self executing, and assured that exempt property never became property of the estate. This is embodied in Section 522(Z) in the following words:
(1) The debtor shall file a list of property that the debtor claims as exempt under subsection (b) of this section. If the debtor does not file such a list, a dependent of the debtor may file such a list, or may claim property as exempt from property of the estate on behalf of the debtor. Unless a party in interest objects, the property claimed as exempt on such list is exempt, 11 U.S.C. Section 522(l),
and declared in In re Adams, 12 B.R. 540, 4 C.B.C.2d 1054 (B.Ct., D.Utah 1981) and In re Keckler, 3 B.R. 155, 1 C.B.C.2d 574 (B.Ct., N.D.Ohio 1980). The Reform Act leaves in force state procedures for contests of claims of exemptions, putting on the trustee the burden to litigate with the debtor improper claims of exemptions. Such is the scheme of the 1978 Reform Act with its mechanical aspects.
The trustee’s assumption that he has become (he does not say when) a co-owner with Mrs. Spain is not only ridiculous, but presumptuous. The bankruptcy of Mr. Spain did not sever Mrs. Spain’s right of survivorship.
The language in the granting clauses of the deed of conveyance in Durant v. Hamrick, supra, read as follows:
Grantors do hereby GRANT, BARGAIN, SELL AND CONVEY unto said Grantees ... as tenants in common and with equal rights and interest for the period or term that the said Grantees shall both survive and unto the survivor of the said Grantees, at the death of the other.... Durant, 409 So.2d at 732,
and the habendum clause in each of these conveyances read as follows:
TO HAVE AND TO HOLD the same unto the Grantees in the manner and interest as set forth and stated herein above. Durant, 409 So.2d at 732.
In attempting to resolve the issues presented to the Court in Durant, Justice Torbert stated:
What, then, are the nature and characteristics of the property interests created in the 1968 and 1969 deeds? The language clearly conveys to grantees “as tenants in common.” Alabama law favors tenancies in common over joint tenancies; therefore, we hold that the grantees took title as tenants in common, and not as joint tenants ... (emphasis provided)
We are persuaded that Alabama should likewise recognize a form of concurrent property ownership as tenants in common which provides for survivorship. This form of concurrent ownership can be characterized as creating concurrent life estates with cross-contingent remainders in fee; or a tenancy in common for life with a contingent remainder in favor of the survivor, (citation omitted)
We hold that the 1968 and 1969 deeds in issue on this appeal did, as a matter of well established property law, create in the original grantees therein a form of concurrent ownership in property as tenants in common during the respective lives of the grantees with cross-contingent remainders in fee to the survivor. Accordingly, because such interests are indestructible by the act of one cotenant, the defendant, under the facts in this case, has no interest in the two parcels of real estate which are the subject of this appeal.
In this case we simply recognize another form of concurrent ownership of property with provisions for survivor-*66ship — as tenants in common for life with cross-contingent remainders to the survivor in fee, indestructible as at common law. (emphasis provided) Durant, 409 So.2d at 736, 738.
Johnson v. Keener, 425 So.2d 1108 (Ala.,1983), apparently relied on by the Court of Appeals, did not involve a sale of division under Section 363(h) of the Bankruptcy Code. It involved a division of the lands by the consent of parties who hated each other and consented to a partition. It did not involve a homestead, husband and wife, or a trustee in Bankruptcy. Each party was trying to get as much of the land as he could and claim it all.
11 U.S.C., Section 522 of the Bankruptcy Code creates in the debtor a federal homestead exemption in real estate in the amount of Seventy-Five Hundred and no/100 ($7500.00) in the following language:
(a) In this section—
(1) “dependent” includes spouse, whether or not actually dependent; and
(2) “value” means fair market value as of the date of the filing of the petition or, with respect to property that becomes property of the estate after such date, as of the date such property becomes property of the estate.
(b) Notwithstanding section 541 of this title, an individual debtor may exempt from property of the estate the property listed in either paragraph (1) or, in the alternative, paragraph (2) of this subsection ... Such property is— ...
(2)(A) any property that is exempt under Federal law, other than subsection (d) of this section, or State or local law that is applicable on the date of the filing of the petition at the place in which the debtor’s domicile has been located for the 180 days immediately preceding the date of the filing of the petition, or for a longer portion of such 180-day period than in any other place; and
(B) any interest in property in which the debtor had, immediately before the commencement of the case, an interest as a tenant by the entirety or joint tenant to the extent that such interest as a tenant by the entirety or joint tenant is exempt from process under applicable nonbankruptcy law ...
(d) The following property may be exempted under subsection (b)(2) of this section:
(1) The debtor’s aggregate interest, not to exceed $7,500 in value, in real property or personal property that the debtor or a dependent of the debtor uses as a residence, ...
(m) Subject to the limitation in subsection (b), this section shall apply separately with respect to each debtor in a joint case, 11 U.S.C. Section 522.
and it also creates a Seventy-Five Hundred and no/100 Dollars ($7500.00) exemption in the spouse, if the Bankruptcy Court undertakes to sell her interest under Federal Law.
The scheme of the 1978 Reform Act was to create property of the estate in Section 541 which included exempt property. However, Section 522(b)(2)(B), supra provided for the separation from property of the estate, exempt property.
The property in this case was properly claimed as exempt on Schedule B-4 and uncontested. It is, therefore, exempt and never became property of the estate.
The trustee had no rights in the wife’s interest in the homestead unless he acquired it as a joint owner or tenant-in-common with the wife. If he never acquired the husband’s interest, he had no rights to proceed against the wife under Section 363(h).
Mr. and Mrs. Spain testified, extensively, on the 4th day of December, 1987, on the retrial of this matter on remand by the Court of Appeals.
Based on the findings, statement and conclusions in the foregoing opinion, the Court makes the following findings of fact and conclusions of law:
(1) The homestead claimed as exempt by the debtor is exempt under Section 522((), no objections having been filed. See In re Adams, 12 B.R. 540, 4 C.B.C.2d 1054 *67(B.Ct., D.Utah 1981); In re Keckler, 3 B.R. 155, 1 C.B.C.2d 574 (B.Ct., N.D.Ohio).
(2) Under Section 522(b), the exempt homestead never became property of the estate.
(3) The trustee is authorized to use, sell or lease property of the estate only if such property is property of the estate and wholly non-exempt.
(4) The trustee never became a tenant-in-common or joint tenant with the wife.
(5) Section 363(f) is not a grant of power, but a limitation on the right of the trustee to sell.
(6) Under Section 363(f)(1), the trustee must find his title or power to sell under state law.
(7) Section 363(h), despite its apparent language to the contrary, does not create a right in the trustee to sell for division, except as title becomes vested in the trustee under state law.
(8) This reasoning is compatible with the holding in In re Livingston, 804 F.2d 1219 (11th Cir.1986).
(9) The trustee has no greater title by virtue of Section 363, 363(f) and 363(h).
(10) The trustee must establish his title and right to possession before resorting to Section 363(f) or (h).
(11) The Court of Appeals decided that the husband and wife were joint tenants, but did not hold that the trustee was a joint tenant, and
There are many reasons why the trustee of a husband in bankruptcy cannot sell the wife’s home. Whether for division or otherwise, Section 363(h) contains this very wise and salient provision
... only if—
... (3) the benefit to the estate of a sale of such property free of the interests of co-owners outweighs the detriment, if any, to such co-owners ...
11 U.S.C. Section 363(h)(3)
One of the grounds on which this Court may deny the trustee’s right to sell is a finding by the Court that the detriment to the wife and loss of her home, in which she has lived and raised her children since 1973, does far outweigh any monetary benefit to the trustee, and
THE COURT, THEREFORE, SETS THIS CASE FOR FURTHER HEARING AND EVIDENCE on February 19, 1988, at 9:30 a.m. in Courtroom # 4, 500 South 22nd Street, Birmingham, Alabama, in order to make the following determinations of fact:
(1) To determine the amount of the second mortgage to Peoples Bank & Trust as of the date of bankruptcy;
(2) To determine whether the parties intended for Mrs. Spain to have a right of survivorship and/or a right of remainder or reversion; and
(3) To determine whether Section 363(h)(3) includes the “sentimental” or emotional value of a home and not just the monetary value. (For some discussion, see In re Addario, 53 B.R. 335 (B.Ct., D.Mass. 1985).
. Judge J.D. Carl, Joint Tenants with Right of Survivorship, Alabama Bar Institute for Continuing Legal Education — Real Estate Seminar, III — 9, 10 (Oct. 23, 26, 1984).
. There is some evidence that the mortgage note was 140,000 at the time of bankruptcy.
. Articles in addition to Judge Carl's have been authored by: John Gillon (Joint Titles with Sur-vivorship, printed in Alabama Lawyer, 1961), W.D. Rollison and Elizabeth Davis Eshelman (Joint Ownership of Property in Alabama, printed in Alabama Lawyer, 1965), Jim Robinson (Title 47, Section 19, Alabama Code Construed to Allow Common Law Joint Tenancy When Parties Express Their Intent to Create Survivorship—Nunn Keith—Ala—, 268 So.2d 792 (1972) printed in Cumberland-Samford Law Review, 1972); also see article titled: Property — Concurrent Ownership — Common Law Joint Tenancy Recognized: The Intention to Create a Right of Survivorship Must Be Clearly Expressed and the Unity of Time Requirement is Eliminated, printed in 25 Alabama Law Review 85, (1973). | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482825/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/10/2022 08:06 AM CST
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STATE V. SPACE
Cite as 312 Neb. 456
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 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482817/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/10/2022 08:06 AM CST
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MILLARD GUTTER CO. V. SHELTER MUT. INS. CO.
Cite as 312 Neb. 606
Millard Gutter Company, a corporation
doing business as Millard Roofing and
Gutter, appellant, v. Shelter Mutual
Insurance Company, appellee.
___ N.W.2d ___
Filed October 14, 2022. No. S-20-907.
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: Judges: Words and Phrases: Appeal and Error. An order
of the district court requiring a complaint to be made more definite and
certain will be sustained on appeal unless it clearly appears that the
court abused its discretion. A judicial abuse of discretion exists when the
reasons or rulings of a trial judge are clearly untenable, unfairly depri
ving a litigant of a substantial right and denying just results in matters
submitted for disposition.
4. Actions: Parties: Standing. Whether a party who commences an action
has standing, and is therefore the real party in interest, presents a juris-
dictional issue.
5. Actions: Parties. The purpose of Nebraska’s real party in interest
statute, Neb. Rev. Stat. § 25-301 (Reissue 2016), is to prevent the
prosecution of actions by persons who have no right, title, or interest in
the cause.
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6. Actions: Parties: Standing. The focus of the real party in interest
inquiry is whether the party has standing to sue due to some real interest
in the cause of action, or a legal or equitable right, title, or interest in the
subject matter of controversy.
7. Standing. The focus of a court’s standing inquiry is not on whether
the claim being advanced has merit; it is on whether the plaintiff is the
proper party to assert the claim.
8. Assignments: Parties. Generally, if there has been a valid and complete
assignment of rights, then the assignee is the real party in interest, but
if the assignment is invalid, then the purported assignor remains the real
party in interest.
9. Assignments: Words and Phrases. An assignment is the transfer of
some identifiable property, claim, or right from the assignor to the
assignee.
10. Assignments. Fundamental to the law of assignments is the concept
that an assignee takes nothing more by an assignment than the assignor
had; an assignor cannot assign any rights greater than that which he or
she held.
11. Assignments: Intent. The intention of the assignor must be to transfer a
present interest in a debt or fund or subject matter.
12. Insurance: Breach of Contract: Assignments: Standing. In the
absence of a statute to the contrary, an insured may validly assign a
postloss breach of contract claim for insurance proceeds due under a
homeowner’s policy, and the assignee of such a claim has standing to
bring the breach of contract claim in its own name.
13. 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.
14. 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 establish
standing.
15. Torts: Insurance: Contracts. The general theory underlying the tort of
bad faith is that the law implies a covenant of good faith and fair deal-
ing as a result of the contractual relationship between the insurer and
the insured.
16. Torts: Insurance: Claims: Proof. To establish a claim of first-party bad
faith, a policyholder must show both an absence of a reasonable basis
for denying benefits of the insurance policy and the insurer’s knowl-
edge or reckless disregard of the lack of a reasonable basis for denying
the claim.
17. Torts: Intent. An action for first-party bad faith is an intentional tort.
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18. Actions: Insurance: Contracts. A cause of action for insurer bad faith
is separate from, and not dependent on, a cause of action for breach of
the insurance policy, although the two may share facts in common.
19. Claims: Torts: Insurance: Damages: Proximate Cause. Because
claims of bad faith are grounded in tort, traditional tort damages, includ-
ing damages for mental distress and for economic loss, are recover-
able when they are proximately caused by the insurer’s tortious bad
faith conduct.
20. Torts: Insurance: Claims. Only (1) an injured policyholder who is also
a covered person or (2) a policyholder who is also a beneficiary may
bring a cause of action in tort against the policyholder’s insurer for fail-
ure to settle the policyholder’s insurance claim.
21. Torts: Claims: Assignments: Death: Abatement, Survival, and
Revival. The common-law rule is that a right of action is not assignable
where the tort causes a strictly personal injury and does not survive the
death of the person injured.
22. Torts: Assignments: Statutes. Where only the proceeds of personal
injury tort litigation, and not control of the litigation, have been assigned,
such assignments are valid and enforceable under Nebraska law unless
there is a statute prohibiting such assignment.
23. Torts: Insurance: Claims: Assignments. A policyholder cannot val-
idly assign the right to prosecute or control a tort action for first-party
bad faith.
24. Torts: Insurance: Assignments. A policyholder’s postloss assignment
of insurance proceeds neither increases nor changes the insurer’s obliga-
tions under the insurance policy.
25. Pleadings. Motions to make more definite and certain are addressed to
the sound discretion of the trial court.
26. Pleadings: Time: Dismissal and Nonsuit. A plaintiff’s 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).
27. Courts: Dismissal and Nonsuit. In addition to the statutory authority
under Neb. Rev. Stat. § 25-601 (Reissue 2016), courts have inherent
authority to dismiss an action for violation of a court order. And pur-
suant to their inherent authority, courts can dismiss the action with or
without prejudice.
Appeal from the District Court for Douglas County: Shelly
R. Stratman, Judge. Affirmed.
Theodore R. Boecker, Jr., of Boecker Law, P.C., L.L.O., for
appellant.
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Michael T. Gibbons, Raymond E. Walden, and Christopher
D. Jerram, 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 from various policy
holders of Shelter Mutual Insurance Company (Shelter).
Millard Gutter then filed suit against Shelter in its own name,
as assignee, seeking to recover damages for breach of the
insurance contracts and for first-party bad faith in failing to
settle the claims. The district court dismissed the action, and
Millard Gutter appeals. The primary question on appeal is
whether Millard Gutter has standing to assert first-party bad
faith claims against Shelter. We affirm the judgment of the
district court.
I. BACKGROUND
1. Complaint
On April 9, 2018, Millard Gutter filed a complaint against
Shelter in the district court for Douglas County. Millard Gutter
brought the action in its own name as “the assignee of vari-
ous insured property owners” who purchased insurance from
Shelter and whose property “sustained loss due to a storm
occurring in 2013.” The assignments were not attached to the
complaint, but were described therein as “valid assignments
of the right to proceeds under an insurance policy issued
by Shelter.”
The complaint alleged that Millard Gutter provided Shelter
with copies of the assignments and made claims for storm dam-
age to the insured properties. The complaint broadly alleged
that all of the Shelter policies were in full force and effect, the
storm damage was covered, and all conditions precedent under
the policies had been met. The complaint did not identify the
addresses or locations of the insured properties, the dates of
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the alleged storm damage, or the dates the assignments were
made. Millard Gutter alleged that Shelter breached the policies
when it “failed to make direct payment to [Millard Gutter]”
and failed to include Millard Gutter “as a payee on any checks
or other payments for the loss.” The complaint also alleged
that Shelter’s failure to pay Millard Gutter amounted to “bad
faith and constitutes a separate violation of the implied cov-
enant of good faith and fair dealing owed under the insurance
contracts.” The complaint prayed for unspecified general and
special damages in an amount to be determined at trial.
2. Preanswer Motions
Shelter moved to dismiss the bad faith claims pursuant to
Neb. Ct. R. Pldg. § 6-1112(b)(6), arguing the complaint failed
to state a claim because Millard Gutter lacked standing to
assert a first-party bad faith claim. Additionally, Shelter moved
for a more definite statement under § 6-1112(e), arguing that
without more detail identifying the insured properties and the
nature and scope of the alleged assignments, Shelter could
not reasonably form a responsive pleading. More specifically,
Shelter argued that it could not discern, from the allegations of
the complaint, which claims the policyholders had purportedly
assigned, where the insured properties were located, whether
all named insureds had executed the assignments, or whether
the assignments were made preloss or postloss.
In an order entered March 26, 2019, the district court sus-
tained the motion for a more definite statement, finding the
original complaint was “insufficient to identify the homeown-
ers and put [Shelter] on notice of each individual homeowner’s
claim.” Millard Gutter was ordered to file, within 14 days, an
amended complaint which identified the pertinent policy num-
bers and attached the assignments upon which it relied. Millard
Gutter never filed an amended complaint.
In a separate order entered April 8, 2019, the court granted
Shelter’s motion to dismiss the bad faith claims for lack of
standing. The court recited the rule from Braesch v. Union Ins.
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Co. 1 that only a policyholder who is also a covered person or
beneficiary under the policy has standing to bring a tort action
against an insurer for first-party bad faith. The court then rea-
soned that Millard Gutter, a nonpolicyholder, lacked standing
under Braesch to assert claims for first-party bad faith in its
own name.
The court also considered, and rejected, Millard Gutter’s
argument that it had standing to assert the bad faith claims
by virtue of the alleged assignments. First, the court recited
the general rule that only a present interest may be validly
assigned, 2 and it noted that the complaint contained no fac-
tual allegations suggesting that any Shelter policyholder had
an existing bad faith claim at the time the assignments were
made. Additionally, the court reasoned that even if the assign-
ments purported to include an existing claim for first-party bad
faith, allowing Millard Gutter to bring such claims in its own
name would violate the rule announced in Mutual of Omaha
Bank v. Kassebaum, 3 which held that the proceeds of personal
injury tort litigation may be validly assigned, but control of
the litigation may not. The court therefore concluded that
Millard Gutter’s complaint did not contain sufficient factual
allegations to establish standing to assert claims of first-party
bad faith.
3. Show Cause and Dismissal
With Prejudice
After the court ruled on the preanswer motions, the case
remained pending with no apparent activity for about 17
months. Then, in August 2020, the court sua sponte issued an
1
Braesch v. Union Ins. Co., 237 Neb. 44, 464 N.W.2d 769 (1991), dis
approved on other grounds, Wortman v. Unger, 254 Neb. 544, 578 N.W.2d
413 (1998).
2
Krohn v. Gardner, 248 Neb. 210, 533 N.W.2d 95 (1995) (holding assign
ment must transfer present interest in debt, fund, or subject matter).
3
Mutual of Omaha Bank v. Kassebaum, 283 Neb. 952, 814 N.W.2d 731
(2012).
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order for the parties to appear and show cause why the action
should not be dismissed for lack of progression.
Our bill of exceptions does not include the show cause hear-
ing, so it is not clear what, if any, evidence or argument was
offered by Millard Gutter. But other portions of the record
reflect that during the hearing, Millard Gutter advised the court
it would not be filing an amended complaint despite the court’s
prior rulings. In response, Shelter moved to dismiss the entire
action with prejudice.
After a hearing on Shelter’s motion, the court entered an
order dismissing the entire action with prejudice. The court
recited the procedural history of the case, including the basis
for the court’s prior rulings dismissing the bad faith claims
and ordering that Millard Gutter file an amended complaint on
the remaining breach of contract claims. The dismissal order
also stated:
[Millard Gutter] has not at any time filed an Amended
Complaint in this case. Nor has [it] filed anything else
in this case, despite the Court’s Order on August 10,
2020 directing that the parties appear at a hearing on
September 1, 2020 and show cause why the action should
not be dismissed for lack of prosecution. At that hearing,
[Millard Gutter’s] counsel advised that [Millard Gutter] is
standing on its original Complaint.
. . . The court agrees with [Shelter] that it is necessary
under the circumstances to go beyond dismissal for lack
of prosecution and dismiss the action on the basis that
[Millard Gutter] failed to comply with the Court’s specific
Order to file an Amended Complaint by April 24, 2019,
and has instead chosen to stand on the Complaint that the
Court found to be insufficient without a more definite
statement[,] and on the bad faith claims that the Court
also found to be insufficient.
. . . The Court determines that it is appropriate to dis-
miss the breach of contract claims as a sanction for non-
compliance with that Order . . . .
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. . . The Court also finds that without the assignments
and specific identifying information about the alleged
homeowners executing the assignments, the Court cannot
determine that [Millard Gutter] has standing to assert the
claims of homeowners alleged to be insured by [Shelter]
and therefore finds that the Court lacks subject matter
jurisdiction over this action.
. . . The Court also reaffirms its dismissal of the bad
faith claims, which were not included in the leave to
amend.
Millard Gutter timely moved to alter or amend the order
of dismissal, arguing that under Neb. Rev. Stat. § 25-601
(Reissue 2016), the dismissal should have been without preju-
dice. After a hearing, the court entered a slightly modified
order of dismissal, which generally recited the same rationale
for dismissal and, once again, dismissed the entire action with
prejudice.
Millard Gutter filed a timely notice of appeal. We moved the
appeal to our docket on our motion. 4
II. ASSIGNMENTS OF ERROR
Millard Gutter assigns, restated and consolidated, that the
district court erred in (1) granting the motion to dismiss the
bad faith claims for lack of standing, (2) granting the motion
to make more definite as to the breach of contract claims and
ordering Millard Gutter to file an amended complaint identify-
ing the policies and attaching the assignments, and (3) dismiss-
ing the entire action with prejudice once Millard Gutter elected
to stand on its original complaint.
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
4
See, Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2020); Neb. Ct. R. App.
Prac. § 2-102(C) (rev. 2022).
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the factual allegations in the complaint as true and drawing all
reasonable inferences of law and fact in favor of the nonmov-
ing party. 5
[2] Whether a party who commences an action has standing
and is therefore the real party in interest presents a jurisdic-
tional issue. 6 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. 7
[3] An order of the district court requiring a complaint to
be made more definite and certain will be sustained on appeal
unless it clearly appears that the court abused its discretion. 8
A judicial abuse of discretion exists when the reasons or rul-
ings of a trial judge are clearly untenable, unfairly depriving a
litigant of a substantial right and denying just results in matters
submitted for disposition. 9
IV. ANALYSIS
1. Standing to Assert Claim
of First-Party Bad Faith
[4] In Millard Gutter’s first assignment of error, it argues
the district court erroneously concluded that Millard Gutter
did not have standing to assert claims of first-party bad faith
against Shelter. Whether a party who commences an action has
standing, and is therefore the real party in interest, presents a
jurisdictional issue. 10
5
SID No. 67 v. State, 309 Neb. 600, 961 N.W.2d 796 (2021).
6
Valley Boys v. American Family Ins. Co., 306 Neb. 928, 947 N.W.2d 856
(2020).
7
Id.
8
See Christianson v. Educational Serv. Unit No. 16, 243 Neb. 553, 501
N.W.2d 281 (1993).
9
George Clift Enters. v. Oshkosh Feedyard Corp., 306 Neb. 775, 947
N.W.2d 510 (2020).
10
Valley Boys, supra note 6.
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[5-7] Nebraska’s real party in interest statute provides in
part that “[e]very action shall be prosecuted in the name of the
real party in interest.” 11 The purpose of that section is to pre-
vent the prosecution of actions by persons who have no right,
title, or interest in the cause. 12 The focus of the real party in
interest inquiry is whether the party has standing to sue due to
some real interest in the cause of action, or a legal or equitable
right, title, or interest in the subject matter of controversy. 13
The focus of our standing inquiry is not on whether the claim
being advanced has merit; it is on whether Millard Gutter is the
proper party to assert the claim. 14
(a) Assignee as Real Party in Interest
[8-11] As a general proposition, we have recognized that if
there has been a valid and complete assignment of rights, then
the assignee is the real party in interest, but if the assignment
is invalid, then the purported assignor remains the real party
in interest. 15 An assignment is the transfer of some identifiable
property, claim, or right from the assignor to the assignee. 16
Fundamental to the law of assignments is the concept that
an assignee takes nothing more by an assignment than the
assignor had; 17 an assignor cannot assign any rights greater
than that which he or she held. 18 The intention of the assignor
must be to transfer a present interest in a debt or fund or sub-
ject matter. 19
11
Neb. Rev. Stat. § 25-301 (Reissue 2016).
12
Valley Boys, supra note 6.
13
Id.
14
See Egan v. County of Lancaster, 308 Neb. 48, 952 N.W.2d 664 (2020).
15
See Valley Boys, supra note 6.
16
6A C.J.S. Assignments § 2 (2016).
17
Id., § 91.
18
Id.
19
See, Krohn, supra note 2; Craig v. Farmers Mut. Ins. Co., 239 Neb. 271,
476 N.W.2d 529 (1991).
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[12] In Millard Gutter Co. v. Farm Bureau Prop. & Cas. Ins.
Co., 20 we held that in the absence of a statute to the contrary,
an insured may validly assign a postloss breach of contract
claim for insurance proceeds due under a homeowner’s policy.
We also held that the assignee of such a claim has standing to
bring the breach of contract claim in its own name. Notably,
Millard Gutter limited its holding to assignments made after
the occurrence of a loss, reasoning that “‘[a]fter a loss occurs,
the indemnity policy is no longer an executory contract of
insurance [but rather] a vested claim against the insurer and
can be freely assigned or sold like any other chose in action . .
. .’” 21 After concluding that postloss assignments of property
damage claims were valid and enforceable, Millard Gutter sug-
gested that “[i]f postloss assignments of storm damage claims
are having a deleterious effect on insurers, they should present
their concerns to the Legislature.” 22
In 2018, the Legislature responded by amending the Insured
Homeowner’s Protection Act, 23 to add specific provisions gov-
erning the validity of postloss assignments of benefits under
property and casualty insurance policies covering residential
real estate. Postloss assignments that do not comply with all
the provisions of the act are deemed void. 24 However, because
the events which gave rise to this action occurred before the
effective date of such amendments, we leave for another day
a detailed discussion of the act’s provisions governing post-
loss assignments.
(b) Facial Challenge to Standing
[13,14] In this case, Shelter’s challenge to Millard Gutter’s
standing was raised and resolved at the pleadings stage. When
20
Millard Gutter Co. v. Farm Bureau Prop. & Cas. Ins. Co., 295 Neb. 419,
889 N.W.2d 596 (2016).
21
Id. at 429, 889 N.W.2d at 603.
22
Id. at 433, 889 N.W.2d. at 605.
23
See Neb. Rev. Stat. §§ 44-8605 to 44-8608 (Cum. Supp. 2020).
24
See § 44-8608.
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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.’” 25 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. 26
The complaint alleged that Millard Gutter “obtained valid
assignments of rights under the policies issued by Shelter” and
specifically described the nature of the rights assigned as “the
right to proceeds under an insurance policy issued by Shelter.”
On appeal, Millard Gutter argues these allegations were suffi-
cient to establish its standing, as an assignee, to assert not only
breach of contract claims for insurance proceeds, 27 but also to
assert tort claims for first-party bad faith against Shelter.
Regarding the claims of first-party bad faith, we understand
Millard Gutter to advance two separate standing theories. First,
Millard Gutter argues it has standing, as assignee, to assert any
existing bad faith claims that Shelter’s policyholders had when
the assignments were made. Alternatively, Millard Gutter relies
on the assignments to argue it can assert its own claims for
first-party bad faith based on Shelter’s postassignment conduct.
We address each standing argument in turn.
(c) Assignability of First-Party
Bad Faith Claims
Millard Gutter broadly argues that the policyholders’ exist-
ing first-party bad faith claims are assignable because there is
“not a single Nebraska appellate court decision, which states
that an assignee of a post-casualty loss claim cannot state a
claim for bad faith.” 28 Millard Gutter is correct that we have
not previously addressed whether a policyholder can validly
25
SID No. 67, supra note 5, 309 Neb. at 606, 961 N.W.2d at 802.
26
Id.
27
See, Millard Gutter Co., supra note 20; Valley Boys, supra note 6.
28
Brief for appellant at 18.
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assign an existing tort claim of first-party bad faith. We do so
now, and begin by reviewing the relevant principles from our
first-party bad faith cases.
(i) First-Party Bad Faith
This court judicially recognized the tort of third-party bad
faith in the 1962 case of Olson v. Union Fire Ins. Co. 29 and
recognized the tort of first-party bad faith almost 30 years later
in Braesch. 30 In Braesch, the court described the difference
between the two torts as follows:
[A] first-party bad faith cause of action is based upon alle-
gations that the insurer, in bad faith, refuses to settle with
its own policyholder insured, who thereby suffers some
type of direct loss. . . . In contrast, a traditional third-party
bad faith claim arises when an insurer wrongfully fails to
settle a claim by a third party against an insured. 31
[15] In Braesch, we said the general theory underlying the
tort of bad faith is that the law implies a covenant of good
faith and fair dealing as a result of the contractual relation-
ship between the insurer and the insured. 32 In a later case,
we emphasized that it is the breach of the covenant of good
faith and fair dealing from which the insurer’s tort liability
springs, and we said the tort of first-party bad faith “embraces
any number of bad faith settlement tactics, such as inadequate
investigation, delays in settlement, false accusations, and so
forth.” 33
[16,17] To establish a claim of first-party bad faith, a policy
holder must show both an absence of a reasonable basis for
denying benefits of the insurance policy and the insurer’s
knowledge or reckless disregard of the lack of a reasonable
29
Olson v. Union Fire Ins. Co., 174 Neb. 375, 118 N.W.2d 318 (1962).
30
Braesch, supra note 1.
31
Id. at 54-55, 464 N.W.2d at 776.
32
See Braesch, supra note 1.
33
Ruwe v. Farmers Mut. United Ins. Co., 238 Neb. 67, 74, 469 N.W.2d 129,
135 (1991).
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basis for denying the claim. 34 Based on these elements, we
have characterized first-party bad faith as an intentional
tort, reasoning that “‘“[b]ad faith” by definition cannot be
unintentional.’” 35
[18,19] We have explained that a cause of action for insurer
bad faith is separate from, and not dependent on, a cause of
action for breach of the insurance policy, although the two
may share facts in common. 36 The damages recoverable for
bad faith differ too; because claims of bad faith are grounded
in tort, 37 traditional tort damages, including damages for men-
tal distress 38 and for economic loss, 39 are recoverable when
they are proximately caused by the insurer’s tortious bad faith
conduct. 40 Indeed, one of the justifications for recognizing
the intentional tort of bad faith was concern that recoverable
damages for breach of the insurance contract are inadequate
to compensate policyholders for personal injuries suffered as a
result of an insurer’s tortious bad faith. 41
[20] In Nebraska, only a policyholder has standing to bring
a first-party bad faith claim against an insurer. 42 More specifi-
cally, “only (1) an injured policyholder who is also a ‘covered
person’ or (2) a policyholder who is also a beneficiary may
bring a cause of action in tort against the policyholder’s insurer
for failure to settle the policyholder’s insurance claim.” 43 In this
case, Millard Gutter does not allege or argue that it is a Shelter
policyholder. Instead, Millard Gutter argues that, by virtue of
34
See Ruwe, supra note 33.
35
Braesch, supra note 1, 237 Neb. at 57, 464 N.W.2d at 777.
36
See Braesch, supra note 1.
37
See id.
38
Id.
39
See Ruwe, supra note 33.
40
See, Braesch, supra note 1; Ruwe, supra note 33.
41
See, e.g., id.
42
Braesch, supra note 1.
43
Id. at 56, 464 N.W.2d at 776.
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the postloss assignments from Shelter’s policyholders, it has
standing to bring any existing claims for first-party bad faith
the policyholders had when they executed the assignments.
It is a question of first impression whether a policyholder
can validly assign, to a nonpolicyholder, a cause of action
for the tort of first-party bad faith. At oral argument, Millard
Gutter suggested the question could be answered by applying
the reasoning from Millard Gutter Co. v. Farm Bureau Prop.
& Cas. Ins. Co., 44 but that case answered a different question,
and our analysis was limited to the assignability of postloss
breach of contract claims. To determine whether a policyholder
can validly assign a tort claim for first-party bad faith, we
must examine our jurisprudence governing the assignability of
tort actions.
(ii) Assignability of Tort Actions
Not all tort claims are assignable under Nebraska law. A
wrongful death cause of action cannot be assigned because it
is authorized by statute, and “[t]he plain language of the stat-
ute allows only the personal representative to bring the action
and only the widow, widower, or next of kin to benefit.” 45
Moreover, although the law generally supports the assign-
ability of rights, it does not permit assignments for matters
of personal trust or confidence, or for personal services. 46
Applying this rule, we have held that claims for legal malprac-
tice cannot be validly assigned in Nebraska because of public
policy considerations concerning the personal nature and con-
fidentiality of the attorney-client relationship. 47 And we have
explained that if an assignment “grants both the proceeds of
44
Millard Gutter Co., supra note 20.
45
Spradlin v. Dairyland Ins. Co., 263 Neb. 688, 692, 641 N.W.2d 634, 637
(2002). See Neb. Rev. Stat. § 30-810 (Reissue 2016).
46
See Earth Science Labs. v. Adkins & Wondra, P.C., 246 Neb. 798, 523
N.W.2d 254 (1994).
47
Id. Accord, Community First State Bank v. Olsen, 255 Neb. 617, 587
N.W.2d 364 (1998).
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[a legal malpractice] action and the right to prosecute it, it is
an assignment of the cause of action” which is void as against
public policy. 48
[21] In Kassebaum, we considered whether an assignment
of the unliquidated proceeds from a personal injury action was
valid and enforceable under Nebraska law. 49 We described this
as an issue of first impression and began our analysis by recit-
ing the common-law rule that a right of action is not assignable
where the tort causes a strictly personal injury and does not
survive the death of the person injured. 50 We said this prohibi-
tion is grounded on two principles: (1) that prior to more recent
statutory amendments, personal claims did not survive the
death of the victim, and (2) that prohibiting the assignment of
tort claims prevents champerty and maintenance. 51
[22] In Kassebaum, we observed there was a split of author-
ity in other jurisdictions regarding whether a party could assign
the proceeds of personal injury litigation without violating this
common-law prohibition. And after discussing the reasons in
favor of and against allowing such assignments, we determined
“the cases holding that an assignment of proceeds is enforce-
able to be the better reasoned position.” 52 We thus adopted the
rule that “[w]here only the proceeds of [tort] litigation, and not
control of the litigation, have been assigned,” such assignments
are valid and enforceable under Nebraska law. 53 In other words,
absent a statute to the contrary, Nebraska law generally allows
a party to assign the proceeds from personal injury actions, but
it does not allow assignment of the right to prosecute or control
such actions.
48
Community First State Bank, supra note 47, 255 Neb. at 622-23, 587
N.W.2d at 368.
49
Kassebaum, supra note 3.
50
Id. See, also, Earth Science Labs., supra note 46.
51
Kassebaum, supra note 3.
52
Id. at 959, 814 N.W.2d at 737.
53
See id.
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MILLARD GUTTER CO. V. SHELTER MUT. INS. CO.
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Here, the district court held that tort actions for first-party
bad faith are subject to the assignability rule for personal injury
actions announced in Kassebaum, and we agree. Actions for
first-party bad faith are intentional torts, and plaintiffs in such
actions are entitled to seek and recover traditional personal
injury damages. 54 We conclude it is appropriate to apply the
same assignability rules to actions for first-party bad faith as
are applied to other strictly personal torts. And under that rule,
the proceeds from such an action are assignable absent a statute
to the contrary, but the right to prosecute or control such an
action cannot be validly assigned. 55
[23] As such, even assuming without deciding that the pro-
ceeds from first-party bad faith actions can be validly assigned
under Nebraska law, we hold that a policyholder cannot val-
idly assign the right to prosecute or control such an action.
So, regardless of the validity for other purposes, the postloss
assignments from Shelter’s policyholders could not, as a mat-
ter of law, give Millard Gutter standing to prosecute the poli-
cyholders’ tort actions for first-party bad faith against Shelter.
Millard Gutter’s arguments to the contrary are without merit.
(d) Argument Based on Implied
Covenant of Good Faith
Millard Gutter’s alternative standing theory appears to be
that it is asserting its own claim for first-party bad faith against
Shelter. More specifically, Millard Gutter argues that once it
obtained postloss assignments from Shelter’s policyholders,
it “stood in the shoes of each of the insureds.” 56 And, as the
assignee of the policyholders’ rights to proceeds under the
Shelter policies, Millard Gutter argues that Shelter owed it the
same covenant of good faith and fair dealing that it owed its
policyholders. Thus, according to Millard Gutter, it can assert
a claim for first-party bad faith based on Shelter’s failure “to
54
See, Ruwe, supra note 33; Braesch, supra note 1.
55
See Kassebaum, supra note 3.
56
Brief for appellant at 14.
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adjust the claim[s] in good faith and make prompt payment to
Millard Gutter.” 57
There is no merit to Millard Gutter’s alternative standing
theory, because there is no legal basis for its contention that
Shelter owed Millard Gutter any obligation of good faith and
fair dealing. The implied covenant of good faith and fair deal-
ing that Nebraska law imposes on insurers “is dependent upon
a contractual relationship between the [policyholder] and the
insurer.” 58 There is no contractual relationship between Shelter
and Millard Gutter, and the postloss assignments did not cre-
ate one.
[24] Moreover, we soundly reject any suggestion that a
policyholder’s postloss assignment of insurance proceeds to
a nonpolicyholder can somehow alter or expand the insurer’s
implied covenant of good faith and fair dealing under the pol-
icy, or create any contractual relationship between the insurer
and the assignee. Our cases allowing postloss assignment
of insurance proceeds plainly hold that “such an assignment
neither increases nor changes the insurer’s obligations under
the policy.” 59
Here, the postloss assignments could not alter Shelter’s
obligations under the insurance policy or change the fact that
Millard Gutter has no contractual relationship with Shelter.
Consequently, there is no doctrinal basis for Millard Gutter
to claim that Shelter owes it a covenant of good faith and fair
dealing. And absent such a duty, there is no legal basis on
which Millard Gutter can assert its own claim of first-party
bad faith against Shelter. As we explained in Braesch, the tort
of first-party bad faith does not extend to nonpolicyholder
beneficiaries—even those who claim to have been harmed by
57
Id.
58
Braesch, supra note 1, 237 Neb. at 55, 464 N.W.2d at 776.
59
Valley Boys, supra note 6, 306 Neb. at 939, 947 N.W.2d at 865 (emphasis
supplied). Accord, Kasel v. Union Pacific RR. Co., 291 Neb. 226, 231, 865
N.W.2d 734, 738 (2015) (“[a]n assignment does not affect or change any
of the provisions of the contract”).
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an insurer’s failure to settle with them—because nonpolicy-
holders lack a contractual relationship with the insurer. 60 As
a nonpolicyholder, Millard Gutter lacks standing to bring an
action for first-party bad faith against Shelter.
In sum, both of Millard Gutter’s standing theories fail as
a matter of law. The district court correctly concluded that
the allegations of Millard Gutter’s complaint, even accepted
as true, failed to establish that Millard Gutter has standing to
assert first-party bad faith claims against Shelter.
For the sake of completeness, we note that under Nebraska’s
real party in interest statute, an action “shall not be dismissed
on the ground that it is not prosecuted in the name of the
real party in interest until a reasonable time has been allowed
after objection for joinder or substitution of the real party in
interest.” 61 But here, Millard Gutter has not assigned or argued
that the district court erred by failing to allow Millard Gutter a
reasonable opportunity to file an amended complaint joining or
substituting the Shelter policyholders as plaintiffs for purposes
of the first-party bad faith claims. And on this record, we can
find no plain error related to § 25-301, particularly where, as
we discuss later, it is apparent that Millard Gutter would have
refused to file an amended complaint if allowed to do so.
2. No Abuse of Discretion in Ordering
More Definite Statement
In its second assignment of error, Millard Gutter argues the
court erred in granting Shelter’s motion to provide a more defi-
nite statement. According to § 6-1112(e) of the pleading rules:
If a pleading to which a responsive pleading is permitted
is so vague or ambiguous that a party cannot reasonably
60
See Braesch, supra note 1.
61
§ 25-301. See, also, North Star Mut. Ins. Co. v. Stewart, 311 Neb. 33,
47, 970 N.W.2d 461, 471 (2022) (holding when plaintiff is not real
party in interest with standing to sue, “better practice” is to allow
plaintiff reasonable period of time to amend complaint by either joining or
substituting real party in interest before dismissing action).
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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.
[25] Motions to make more definite and certain are addressed
to the sound discretion of the trial court. 62 Rule 6-1112(e)
requires the movant to identify the alleged deficiencies in the
pleading and to specify the details that are reasonably needed
to draft a responsive pleading. Shelter argued it could not tell
from the complaint which claims had been assigned, whether
the assignments were made preloss or postloss, whether all
named insureds had executed the assignments, or whether the
insured properties were located in the county where suit had
been filed. It asserted that without knowing these details, it
was unable to draft a responsive pleading or identify available
policy defenses.
The district court granted the motion, but did not require
all of the additional details requested by Shelter. Instead, the
court ordered Millard Gutter to amend the complaint within
14 days to “include policy numbers and attach the assignment
associated with each homeowner.” This additional detail would
presumably allow Shelter to identify the insured properties, the
named insureds, and the assignors so it could draft a respon-
sive pleading. On this record, we find no abuse of discretion in
granting the motion to make more definite.
3. No Error in Dismissal With Prejudice
In its final assignment of error, Millard Gutter argues it
was error to dismiss the entire action with prejudice. Millard
62
See Vodehnal v. Grand Island Daily Independent, 191 Neb. 836, 218
N.W.2d 220 (1974).
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Gutter argues that, pursuant to § 25-601, the dismissal should
have been without prejudice. Section 25-601 provides in rel-
evant part:
An action may be dismissed without prejudice to a
future action . . . (3) by the court for want of necessary
parties; . . . (5) by the court for disobedience by the plain-
tiff of an order concerning the proceedings in the action.
In all other cases on the trial of the action the decision
must be upon the merits.
[26,27] We have said the plaintiff’s 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). 63 But in addition to the statutory author-
ity under § 25-601, we have long recognized that courts have
inherent authority to dismiss an action for violation of a court
order. 64 And pursuant to their inherent authority, courts have
discretion to dismiss the action with or without prejudice. 65
Additionally, § 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 with prejudice is
63
See Bert Cattle Co. v. Warren, 238 Neb. 638, 471 N.W.2d 764 (1991).
64
Id. at 641-42, 471 N.W.2d at 767 (internal quotation marks omitted)
(explaining “[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”).
65
See, Scudder v. Haug, 197 Neb. 638, 250 N.W.2d 611 (1977) (finding no
error in dismissing cross-claim with prejudice where defendant was given
repeated opportunities to comply with court’s order to bring pleading
into proper form, yet failed to do so); Ferson v. Armour & Co., 109
Neb. 648, 651, 192 N.W. 125, 127 (1923) (finding no error in dismissing
action with prejudice after four pleadings were stricken for failure to
comply with pleading rules, though such dismissal “should be sparingly
exercised”).
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generally considered an available sanction under such a provi-
sion and is reviewed for an abuse of discretion. 66
Moreover, the inherent authority of a trial court to dismiss
an action with prejudice for failure to prosecute is also well
established:
The authority of a . . . trial court to dismiss a plaintiff’s
action with prejudice because of [a] failure to prosecute
cannot seriously be doubted. The power to invoke this
sanction is necessary in order to prevent undue delays in
the disposition of pending cases and to avoid congestion
in the calendars of the District Courts. The power is of
ancient origin, having its roots in judgments of nonsuit
and non prosequitur entered at common law, e. g., 3
Blackstone, Commentaries (1768), 295-296, and dismis-
sals for want of prosecution of bills in equity . . . . 67
Our record shows that Millard Gutter’s failure to comply
with the order to make more definite was intentional, not inad-
vertent. Then, when the case showed no activity for a period of
almost 17 months and the court sua sponte issued an order to
show cause why the case should not be dismissed for failure to
prosecute, Millard Gutter offered no explanation, and instead,
it advised the court for the first time that it was going to stand
on its original complaint despite the court’s prior orders. After
the show cause hearing, the district court granted Shelter’s
motion to dismiss the entire action with prejudice, finding that
Millard Gutter’s delay “entirely stalled the case for nearly [a]
year and a half at the initial pleading stage” and that Millard
Gutter had no intention of filing an amended complaint to
remedy the deficiencies the court had identified in the origi-
nal complaint.
66
See, e.g., 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).
67
Link v. Wabash Railroad Co., 370 U.S. 626, 629-30, 82 S. Ct. 1386, 8 L.
Ed. 2d 734 (1962) (emphasis omitted).
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Although dismissal with prejudice pursuant to a court’s
inherent authority is a severe sanction which should be exer-
cised sparingly, 68 we cannot say on this record that it was
an abuse of discretion. The record in this case supports the
trial court’s determination that Millard Gutter deliberately dis-
obeyed the order to make more definite, stalled progression of
the case by waiting almost 17 months to advise the court of its
decision to stand on the original complaint, and failed to show
good cause for the resulting failure to prosecute. We find no
merit to any of Millard Gutter’s arguments that it was an abuse
of discretion to dismiss the case with prejudice.
V. CONCLUSION
For the foregoing reasons, the judgment of the district court
is affirmed.
Affirmed.
68
See Ferson, supra note 65. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482822/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/10/2022 08:06 AM CST
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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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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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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.”
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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).
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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 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482811/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/10/2022 08:06 AM CST
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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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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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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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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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[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 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482824/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/10/2022 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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HEIST V. NEBRASKA DEPT. OF CORR. SERVS.
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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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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 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482815/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/10/2022 08:06 AM CST
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DOE V. STATE
Cite as 312 Neb. 665
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 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482814/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/10/2022 08:06 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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IN RE INTEREST OF GUNNER B.
Cite as 312 Neb. 697
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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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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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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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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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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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 | 11-10-2022 |
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11/10/2022 08:06 AM CST
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ECHO GROUP V. TRADESMEN INTERNAT.
Cite as 312 Neb. 729
Echo Group, Inc., appellee and cross-appellant, v.
Tradesmen International, an Ohio corporation,
appellee, and Lund-Ross Constructors, Inc.,
a Nebraska corporation, intervenor-
appellant and cross-appellee.
Echo Group, Inc., appellee and cross-appellant, v.
The Historic Florentine, LLC, a Nebraska limited
liability company, and Midwest Protective
Services, Inc., appellees, and Lund-Ross
Constructors, Inc., a Nebraska corporation,
intervenor-appelllant and cross-appellee.
Echo Group, Inc., appellee and cross-appellant, v.
The Duke of Omaha, LLC, a Georgia limited
liability company, Great Western Bank and
Midwest Protection Services, Inc., appellees,
and Lund-Ross Constructors, Inc.,
a Nebraska corporation, intervenor-
appellant and cross-appellee.
___ N.W.2d ___
Filed October 28, 2022. Nos. S-21-729, S-21-730, S-21-770.
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.
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3. Statutes: Appeal and Error. Statutory interpretation presents a ques-
tion of law which an appellate court reviews independently of the lower
court.
4. Liens: Foreclosure: Equity. An action to foreclose a construction lien
is one grounded in equity.
5. Equity. The maxim “equity follows the law” in its broad sense means
that equity follows the law to the extent of obeying it and conforming to
its general rules and policies whether contained in common law or stat-
ute. This maxim is strictly applicable whenever the rights of the parties
are clearly defined and established by law.
6. ____. Equitable remedies are generally not available where there exists
an adequate remedy at law.
7. Summary Judgment: Proof. The party moving for summary judgment
must make a prima facie case by producing enough evidence to show
that the movant is entitled to judgment if the evidence were uncontro-
verted at trial. If the party moving for summary judgment makes a prima
facie case, the burden shifts to the nonmovant to produce evidence
showing the existence of a material issue of fact that prevents judgment
as a matter of law.
8. Summary Judgment. Conclusions based on guess, speculation, conjec-
ture, or a choice of possibilities do not create material issues of fact for
purposes of summary judgment.
9. 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.
10. Principal and Surety: Bonds: Liens. The function of the surety bond
under Neb. Rev. Stat. § 52-142 (Reissue 2021) is to release the property
from the lien and to transfer the claimant’s rights from the property to
the surety bond.
11. Stipulations: Parties. The general rule is that parties are bound by
stipulations voluntarily made.
12. Principal and Surety: Liability. In the absence of a condition extend-
ing his or her liability, a surety cannot be held liable for more than the
penal sum named.
13. Prejudgment Interest: Appeal and Error. Awards of prejudgment
interest are reviewed de novo.
14. Prejudgment Interest. Neb. Rev. Stat. §§ 45-103.02 and 45-104
(Reissue 2021) provide alternate and independent means of recovering
prejudgment interest.
15. ____. Neb. Rev. Stat. § 45-103.02(2) (Reissue 2021) authorizes the
recovery of prejudgment interest on liquidated claims.
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16. ____. When a claim is of the types enumerated in Neb. Rev. Stat.
§ 45-104 (Reissue 2021), then prejudgment interest may be recovered
without regard to whether the claim is liquidated.
17. Appeal and Error. The district court cannot commit error in resolving
an issue never presented and submitted to it for disposition.
18. Prejudgment Interest. Neb. Rev. Stat. § 45-104 (Reissue 2021) applies
to four types of judgments: (1) money due on any instrument in writing;
(2) settlement of the account from the day the balance shall be agreed
upon; (3) money received to the use of another and retained without the
owner’s consent, express or implied, from the receipt thereof; and (4)
money loaned or due and withheld by unreasonable delay of payment.
19. Prejudgment Interest: Liens: Foreclosure. An award of prejudgment
interest in an action to foreclose a construction lien is authorized under
Neb. Rev. Stat. § 45-104 (Reissue 2021).
20. Statutes: Words and Phrases. As a general rule, the word “shall” in
a statute is considered mandatory and is inconsistent with the idea of
discretion.
21. Attorney Fees: Appeal and Error. On appeal, a trial court’s decision
awarding or denying attorney fees will be upheld absent an abuse of
discretion.
22. Attorney Fees. Attorney fees and expenses may be recovered in a civil
action only where provided for by statute or when a recognized and
accepted uniform course of procedure has been to allow recovery of
attorney fees.
23. Statutes: Legislature: Intent. When construing a statute, a court must
determine and give effect to the purpose and intent of the Legislature
as ascertained from the entire language of the statute considered in its
plain, ordinary, and popular sense.
24. Statutes: Intent. In construing a statute, the court must look at the
statutory objective to be accomplished, the problem to be remedied,
or the purpose to be served, and then place on the statute a reasonable
construction which best achieves the purpose of the statute, rather than
a construction defeating the statutory purpose.
25. Appeal and Error. Absent plain error, an appellate court considers only
an appellant’s claimed errors that the appellant specifically assigns in a
separate “assignment of error” section of the brief and correspondingly
argues in the argument section.
26. ____. 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 integ-
rity, reputation, or fairness of the judicial process.
Appeals from the District Court for Douglas County: J.
Michael Coffey, Leigh Ann Retelsdorf, and Duane C.
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Dougherty, Judges. Judgment in No. S-21-729 affirmed and
in part reversed, and cause remanded with direction. Judgment
in No. S-21-730 affirmed in part and in part reversed, and
cause remanded with direction. Judgment in No. S-21-770
affirmed in part, and in part reversed.
David S. Houghton and Justin D. Eichmann, of Houghton,
Bradford & Whitted, P.C., L.L.O., for appellant.
Cathy S. Trent-Vilim and Craig F. Martin, of Lamson,
Dugan & Murray, L.L.P., for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
I. INTRODUCTION
These three cases consolidated for appeal involve foreclo-
sures of construction liens under the Nebraska Construction
Lien Act (Act). 1 The appeals present three primary issues:
whether equitable considerations make summary judgment
improper, whether prejudgment interest is authorized, and
whether attorney fees are recoverable.
Because there was no dispute that the supplier complied
with the provisions of the Act and equity follows the law, we
affirm the entry of summary judgment in each case.
We conclude that the claims were liquidated, and thus, an
award of prejudgment interest was authorized. Because the
court in two cases erred by not awarding prejudgment inter-
est, we reverse the denial and remand to award such interest in
conformity with this opinion.
Finally, we conclude that under the circumstances, there was
no statutory authorization for an award of attorney fees. Thus,
we reverse in part the judgment in two cases awarding attorney
fees.
1
Neb. Rev. Stat. §§ 52-125 to 52-159 (Reissue 2021).
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II. BACKGROUND
1. Overview
We begin with a broad overview. These appeals arose from
three construction-related projects. A general contractor entered
into agreements with a subcontractor for performance of elec-
trical work, and the subcontractor obtained electrical materials
and equipment from a supplier. When the subcontractor failed
to pay the supplier, the supplier filed construction liens. The
supplier then sued the property owners to foreclose on the
liens. The general contractor posted lien release bonds and
intervened. Ultimately, the district court—through a different
judge in each of the three cases—entered summary judgment
in favor of the supplier. Two judgments overruled requests for
prejudgment interest, one overruled a request for attorney fees,
and one awarded both prejudgment interest and fees. These
appeals followed.
2. Parties and Contracts
With that general understanding, we fill in the details. The
general contractor, Lund-Ross Constructors Co. (Lund-Ross),
was hired for the three projects involved in these appeals. The
projects consisted of renovating common space at a senior liv-
ing center, revamping an old apartment building into new apart-
ments, and constructing a new apartment project, respectively.
Lund-Ross entered into contracts with Signature Electric,
LLC (Signature), doing business as D&J Electric, for the per-
formance of electrical work on the projects. Signature entered
into agreements with Echo Group (Echo) to obtain electrical
materials and equipment.
Generally, the subcontracts between Lund-Ross and
Signature specified that Signature had the responsibility to pay
all amounts owed to any suppliers it engaged. The subcontracts
obligated Signature to furnish satisfactory evidence to Lund-
Ross, “when and if required,” that it did so. To receive monthly
progress payments, Signature had to provide Lund-Ross with a
completed lien waiver for all prior months’ progress payments.
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3. Progress Payments
Signature submitted monthly pay applications to Lund-Ross,
requesting monthly progress payments for work completed
and supplies purchased. Lund-Ross would remit payment to
Signature, less an applicable retainage amount. Once Signature
received payment, it submitted a partial lien waiver to Lund-
Ross, attesting to Signature’s payment of all suppliers up to the
date of the lien waiver.
According to Lund-Ross’ president, the lien waivers were
of “critical importance.” He explained that if Signature did not
provide lien waivers for the previous month attesting to pay-
ment of suppliers, “Lund-Ross would then have known that
there was a problem with Signature’s payment of suppliers and
Lund-Ross could have stopped making payments to Signature
and made other arrangements to pay Signature’s suppliers . . .
directly or take other action to protect itself.”
4. Construction Liens and Lawsuits
In July 2019, Signature abruptly ceased operations.
The next month, and in accordance with the Act, Echo
recorded a construction lien in the office of the Douglas County
register of deeds in each case in the amounts of $11,604.46,
$32,781.03, and $296,407.73, respectively.
Echo presented demands to Lund-Ross for payment with
respect to electrical supplies it furnished to Signature. Having
received no payments, Echo filed lawsuits against the property
owners to foreclose on the construction liens. The complaints
also alleged unjust enrichment. Lund-Ross posted a surety
bond in each case and moved to intervene.
After the court allowed Lund-Ross to intervene, Lund-Ross
filed an answer setting forth numerous affirmative defenses.
Among the affirmative defenses, Lund-Ross identified equi-
table doctrines of waiver, estoppel, laches, and unclean hands.
Lund-Ross stipulated to the dismissal of each property owner.
In case No. S-21-729, Lund-Ross stipulated that any judgment
would be satisfied “by Lund-Ross or its bond.” Similarly, in
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case No. S-21-770, Lund-Ross stipulated that a final judgment
would be satisfied “by Lund[-]Ross and/or its bond.”
Echo subsequently moved for summary judgment. As dis-
cussed in more detail below, the court sustained the motion in
each case.
5. District Court Judgments
The court entered summary judgment in Echo’s favor on the
foreclosure of a construction lien claim in each case. Thus, in
case No. S-21-729, the court entered judgment in the amount
of $11,604.46 against the bond posted by Lund-Ross, together
with costs and postjudgment interest. In case No. S-21-730,
the court entered judgment against the bond in the amount
of “$32,871.03” (transposing the lien amount of $32,781.03),
together with costs, attorney fees, and postjudgment interest.
In case No. S-21-770, the court entered summary judgment
against Lund-Ross in the amount of $296,407.73, plus prejudg-
ment and postjudgment interest, costs, and attorney fees.
The orders further disposed of Echo’s claims for unjust
enrichment. In case No. S-21-729, the court found that claim
should be dismissed with prejudice. In case No. S-21-730, the
court sustained Echo’s motion to dismiss that claim. And in
case No. S-21-770, having determined that summary judgment
was appropriate on the lien foreclosure claim, the court found
it unnecessary to consider Echo’s unjust enrichment claim.
Additional findings by the district court will be set forth as
necessary in the analysis.
Lund-Ross filed a timely appeal in each case. The Nebraska
Court of Appeals sustained Lund-Ross’ motion to consolidate
the appeals, and we subsequently moved them to our docket. 2
III. ASSIGNMENTS OF ERROR
Lund-Ross assigns five errors. In all three cases, it alleges
that the district court erred in determining that no genuine issue
2
See Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2020).
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of material fact existed and in granting Echo summary judg-
ment on its claims for construction lien foreclosure.
In two cases—cases Nos. S-21-730 and S-21-770—Lund-
Ross alleges that the court erred in granting judgment in an
amount greater than the surety bond posted by Lund-Ross.
In case No. S-21-770 only, Lund-Ross alleges that the court
erred in (1) entering judgment for the excess amount directly
against Lund-Ross, (2) awarding Echo prejudgment interest on
its claim for construction lien foreclosure, and (3) awarding
Echo attorney fees not actually incurred in pursuit of Echo’s
claim in the action pending before it.
On cross-appeal, Echo assigns that the court erred in cases
Nos. S-21-729 and S-21-730 by denying prejudgment interest.
It further assigns that the court erred in case No. S-21-729 by
denying attorney fees.
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. 3 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. 4
[3] Statutory interpretation presents a question of law which
an appellate court reviews independently of the lower court. 5
These standards are central to our review. We set forth other
applicable standards in the analysis.
3
Elbert v. Young, ante p. 58, 977 N.W.2d 892 (2022).
4
Id.
5
Ag Valley Co-op v. Servinsky Engr., 311 Neb. 665, 974 N.W.2d 324 (2022).
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V. ANALYSIS
1. Summary Judgment
Lund-Ross argues that the district court erred in granting
summary judgment in three ways. In all three appeals, Lund-
Ross claims that the court erred in entering summary judgment
on the construction lien foreclosure claim without “balancing
the equities.” 6 In cases Nos. S-21-730 and S-21-770, Lund-
Ross alleges the court erred by entering summary judgment in
an amount greater than the surety bond it posted to release the
real estate from the construction lien. In case No. S-21-770,
Lund-Ross claims error with respect to the entry of judgment
for the excess amount directly against Lund-Ross.
(a) Balancing of Equities
With regard to summary judgment on the construction lien
foreclosure claims, Lund-Ross does not dispute that Echo
complied with the statutory requirements of the Act. But Lund-
Ross argues that “the grant of such an equitable remedy also
requires the trial court to first balance any equities supported
by the parties’ evidence.” 7
[4] It bases its argument on case law stating that an action
to foreclose a construction lien is one grounded in equity. 8
From this general characterization of the nature of a construc-
tion lien foreclosure proceeding, it reasons that a balancing of
equities—which, it argues, is inherent in an equity action—pre-
cludes granting summary judgment.
No Nebraska case law has addressed balancing of equities
in a lien foreclosure action. Recognizing the same, Lund-Ross
directs our attention to two cases to support its argument.
6
Brief for appellant at 22.
7
Id. at 21.
8
See, e.g., Goes v. Vogler, 304 Neb. 848, 937 N.W.2d 190 (2020); Lincoln
Lumber Co. v. Lancaster, 260 Neb. 585, 618 N.W.2d 676 (2000); Franksen
v. Crossroads Joint Venture, 245 Neb. 863, 515 N.W.2d 794 (1994).
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One case, an unpublished decision of the Iowa Court of
Appeals, 9 involved a trial court’s refusal to foreclose on a
mechanic’s lien based on equitable principles. The trial court
had concluded that the contractor was largely responsible for
creating the dispute due to its confusing and inaccurate billing.
The Court of Appeals reasoned that although the contractor met
the statutory requirements to foreclose on its lien, the appel-
late court had broad discretion in determining an equitable
remedy and could consider the hardship its orders would cause
the defendant.
The other case, a Nebraska case, involved whether to grant
equitable relief in connection with allegations of ultra vires
acts by insurance company officers. 10 There, we stated that
“[i]n balancing equities, [a court] must take into consideration
the good that may be done to those who have been wronged,
against the evil that may befall innocent persons.” 11 After
noting that “if the plaintiff can be readily compensated in dam-
ages,” we stated that “[c]ourts will balance equities and, where
they are equal or predominate against him who seeks relief,
equity will follow that rule.” 12
Neither case persuades us that the possibility of balancing
equities in fashioning relief precludes a court from employ-
ing a summary judgment, at least where there are no factual
disputes. The Nebraska precedent, in particular, differs signifi-
cantly from the case before us. There, the plaintiffs primarily
sought and received injunctive relief requiring that bonds and
money removed from a fraternal benefit corporation and paid
to an insurance company organized by officers of the frater-
nal benefit corporation be returned to that corporation, and
9
Olmstead Construction, Inc. v. Otter Creek Investments, LLC, No. 18-1186,
2019 WL 4678167 (Iowa App. Sept. 25, 2019) (unpublished opinion listed
in table of “Decisions Without Published Opinions” at 940 N.W.2d 44
(2019)).
10
See Folts v. Globe Life Ins. Co., 117 Neb. 723, 223 N.W. 797 (1929).
11
Id. at 745, 223 N.W. at 806.
12
Id.
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precluding the individuals and corporate entities from using
the fraternal benefit corporation’s goodwill, property, or orga-
nization in the business of the insurance company. While an
action for injunction sounds in equity 13 and an action to fore-
close a construction lien is one grounded in equity, 14 the simi-
larity ends there. In Nebraska, construction liens are largely
governed by the Act.
[5,6] Long-established principles require a court in equity
to implement these statutory provisions. The maxim “equity
follows the law” in its broad sense means that equity follows
the law to the extent of obeying it and conforming to its gen-
eral rules and policies whether contained in common law or
statute. 15 This maxim is strictly applicable whenever the rights
of the parties are clearly defined and established by law. 16 And
equitable remedies are generally not available where there
exists an adequate remedy at law. 17 That is the case here. The
Act sets forth a comprehensive statutory structure. By asking
this court to balance the equities with respect to Echo’s fore-
closure requests, Lund-Ross seeks to inject something new into
the Act.
[7] Even if it were appropriate to do so, Lund-Ross did not
meet its burden to show the existence of a material issue of
fact. The party moving for summary judgment must make a
prima facie case by producing enough evidence to show that
13
County of Cedar v. Thelen, 305 Neb. 351, 940 N.W.2d 521 (2020).
14
Goes v. Vogler, supra note 8.
15
Guy Dean’s Lake Shore Marina v. Ramey, 246 Neb. 258, 518 N.W.2d
129 (1994). See, also, Wisner v. Vandelay Investments, 300 Neb. 825, 916
N.W.2d 698 (2018); Fisher v. Heirs & Devisees of T.D. Lovercheck, 291
Neb. 9, 864 N.W.2d 212 (2015); Jeffrey B. v. Amy L., 283 Neb. 940, 814
N.W.2d 737 (2012); Doksansky v. Norwest Bank Neb., 260 Neb. 100, 615
N.W.2d 104 (2000); Henry v. Rockey, 246 Neb. 398, 518 N.W.2d 658
(1994).
16
Guy Dean’s Lake Shore Marina v. Ramey, supra note 15; Wisner v.
Vandelay Investments, supra note 15; Jeffrey B. v. Amy L., supra note 15;
Doksansky v. Norwest Bank Neb., supra note 15.
17
Wisner v. Vandelay Investments, supra note 15.
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the movant is entitled to judgment if the evidence were uncon-
troverted at trial. If the party moving for summary judgment
makes a prima facie case, the burden shifts to the nonmovant
to produce evidence showing the existence of a material issue
of fact that prevents judgment as a matter of law. 18 Echo met
its initial burden, but Lund-Ross failed to meet its respon-
sive burden.
Lund-Ross did not produce evidence to raise a genuine issue
of material fact as to the equitable defenses it raised. There
is no evidence that Echo had an obligation to bring payment
issues to the attention of Lund-Ross or the property owner. Nor
is there evidence that Lund-Ross asked for lien waivers from
any of the suppliers. Although Lund-Ross asserts that Echo
“slept on [its] rights and waited over the course of more than
half [a] year to make [its] claim,” 19 Echo timely filed its liens
and sought foreclosure in accordance with the provisions of
the Act.
[8] At oral argument, Lund-Ross asserted that the equitable
considerations it advanced should be heard at trial. It explained
that a trial would allow a fuller exploration and further devel-
opment of facts. But the time to show a genuine dispute regard-
ing any material fact was at the summary judgment stage. At
that stage, Lund-Ross could produce “depositions, answers to
interrogatories, admissions, stipulations, and affidavits” 20 to
support its equitable defenses. Instead, Lund-Ross essentially
relied on inferences based on speculation. Conclusions based
on guess, speculation, conjecture, or a choice of possibilities
do not create material issues of fact for purposes of sum-
mary judgment. 21
As noted, there is no dispute that Echo complied with the
statutory requirements of the Act with respect to its con-
struction lien foreclosure claims. The district court correctly
18
Ag Valley Co-op v. Servinsky Engr., supra note 5.
19
Brief for appellant at 28.
20
Neb. Rev. Stat. § 25-1332 (Cum. Supp. 2020).
21
Ag Valley Co-op v. Servinsky Engr., supra note 5.
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followed the law and had no need in this instance to “balance
any equities.”
(b) Award Greater Than Surety Bond
Lund-Ross argues that in cases Nos. S-21-730 and S-21-770,
the district court erred by entering judgment in excess of the
surety bond. Lund-Ross contends that the Act defines the rem-
edy for a successful lien claim. So we turn to the Act.
The Act speaks to the procedure to release a lien. Under
§ 52-142(1)(a), a person may release real estate from a lien
by depositing “money in cash, certified check, or other bank
obligation, or a surety bond . . . , in an amount sufficient to pay
the total of the amounts claimed in the liens being released plus
fifteen percent of such total.” Upon such release, “the claim-
ant’s rights are transferred from the real estate to the deposit or
surety bond.” 22 Once the court determines the claim, it “shall
order the clerk of the district court to pay the sums due or ren-
der judgment against the surety company on the bond, as the
case may be.” 23 Lund-Ross homes in on the latter language,
contending that “the limit of any possible recovery by Echo . . .
is a judgment rendered against the surety company on the bond
deposited.” 24 It asserts, without citation to authority, that the
total judgment cannot exceed the bond amount. We disagree.
[9] The plain language of the Act does not contain a limit
on the amount of recovery. Statutory language 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 unambiguous. 25 The Act pro-
vides that a person furnishing materials has a construction lien
“to secure the payment of his or her contract price.” 26 Contract
22
§ 52-142(3).
23
Id.
24
Brief for appellant at 30.
25
In re Guardianship of Jill G., ante p. 108, 977 N.W.2d 913 (2022).
26
§ 52-131(1).
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price is defined as “the amount agreed upon by the contract-
ing parties for performing services and furnishing materials
covered by the contract” as increased or diminished by certain
matters; however, “[i]f no price is agreed upon by the con-
tracting parties, contract price shall mean the reasonable value
of all services or materials covered by the contract.” 27 The
amount of the lien is specified by § 52-136, 28 which provides,
under the circumstances here, that the lien is for the amount
unpaid under Echo’s contract. 29
Provisions within the Act authorize recovery of amounts in
addition to the amount of the lien and, thus, may be in addition
to the amount of the bond. One statute 30 mandates an award to
the prevailing party of reasonable attorney fees and court costs
if a claimant has a claim under a bond procured by an owner
or prime contractor from a surety company in the penal sum
set forth in § 52-141(3). Another makes a person who fails to
furnish information required by § 52-143 liable to the request-
ing party for actual damages or $200 as liquidated damages. 31
A third statute makes a claimant who fails to send a copy of
the recording of a notice of commencement to the contracting
owner liable to the contracting owner for any damages caused
by that failure. 32 A fourth statute provides that if a person is
wrongfully deprived of benefits or if a claimant acts in bad
faith, damages, including the costs of correcting the record and
reasonable attorney, fees may be awarded. 33 Nothing within the
Act limits these additional amounts to 15 percent of the amount
claimed in the lien. 34
27
§ 52-127(2).
28
§ 52-131(4).
29
See § 52-136(2)(a).
30
§ 52-141(6).
31
§ 52-143(3).
32
§ 52-145(6).
33
See § 52-157.
34
See § 52-142(1)(a).
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[10] The language of the Act demonstrates that the function
of the surety bond under § 52-142 is to release the property
from the lien and to transfer the claimant’s rights from the
property to the surety bond. It is simply a matter of substitution
of collateral. 35 The shifting of the lien from the property to the
bond substitute does not create a limit on recovery that would
not otherwise exist. Where recovery of amounts in excess of
the lien amount is permitted, it is not error to enter judgment in
an amount greater than the amount of the surety bond.
(c) Judgment Directly Against Lund-Ross
Lund-Ross further contends that in case No. S-21-770, the
court erred by assessing the judgment in excess of the posted
surety bond—an additional $69,524.86—directly against
Lund-Ross. The district court reasoned that under § 52-142,
it was discretionary to the court whether to render judgment
against the surety company or simply order the clerk of the
district court to pay the bond out to Echo. The court declared
that any remaining amount due on the judgment—which
included prejudgment interest, attorney fees, and costs—was
the sole responsibility and obligation of Lund-Ross. Lund-
Ross argues that any judgment against it—as opposed to
the surety per § 52-142(3)—was error. We disagree for sev-
eral reasons.
First, we reject Lund-Ross’ assertion that judgment could
not be entered against it because “Echo’s pleadings are entirely
devoid of any claims asserted against Lund-Ross.” 36 In case
No. S-21-770, Echo sued the property owner and two corpora-
tions having an interest in the property, seeking to foreclose
on its construction lien. Subsequently, Lund-Ross deposited a
surety bond and moved to intervene. As Lund-Ross recognized
in its motion—and as set forth in the discussion above—upon
release of the construction lien, Echo’s rights were transferred
from the property to the surety bond. The bond to release the
35
See § 52-151(1).
36
Brief for appellant at 30.
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lien identified Lund-Ross as “Principal” and Western Surety
Company as “Surety,” and they bound themselves “jointly
and severally” to Echo. Lund-Ross cites no authority for the
proposition that the liability of the principal on a surety bond
is limited to the penal sum.
[11] Second, Lund-Ross is obligated by its stipulation. The
general rule is that parties are bound by stipulations voluntarily
made. 37 Lund-Ross stipulated that the property owner should
be dismissed as a party and that “to the extent [Echo] obtains
a final judgment, it will be satisfied by Lund[-]Ross and/or
its bond.”
[12] Third, a surety generally cannot be held liable for an
amount greater than the bond. “[I]n the absence of a condition
extending his or her liability, a surety cannot be held liable for
more than the penal sum named.” 38 Although this bond was not
a surety bond meeting the requirements of § 52-141, that stat-
ute conveys the same general rule: “The bond must obligate the
surety company, to the extent of the penal sum of the bond” 39
and “the total liability of the surety may not exceed the penal
sum of the bond.” 40 This means that liability for any amount in
excess of the bond falls to Lund-Ross.
For all these reasons, we find no error by the court in assess-
ing the judgment in excess of the posted surety bond directly
against Lund-Ross.
2. Prejudgment Interest
(a) Standard of Review
[13] Awards of prejudgment interest are reviewed de novo. 41
37
Lincoln Lumber Co. v. Lancaster, supra note 8.
38
11 C.J.S. Bonds § 55 at 43 (2019).
39
§ 52-141(2).
40
§ 52-141(7).
41
McGill Restoration v. Lion Place Condo. Assn., 309 Neb. 202, 959 N.W.2d
251 (2021).
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(b) Additional Facts and Findings
In all three cases, Echo requested prejudgment interest under
Neb. Rev. Stat. § 45-104 (Reissue 2021) only. In case No.
S-21-729, the court did not explicitly rule on Echo’s request
for prejudgment interest. In case No. S-21-730, the court dis-
agreed that Echo’s construction lien was an instrument in writ-
ing envisioned by § 45-104. Thus, it denied Echo’s request for
prejudgment interest under that statute.
In case No. S-21-770, the court found that Echo was entitled
to prejudgment interest under § 45-104. It determined that the
construction lien itself qualified under § 45-104 as “‘money
due on an instrument in writing.’” The court further found that
Echo was entitled to prejudgment interest under the provision
of § 45-104 allowing interest on “‘money loaned or due and
withheld by unreasonable delay of payment.’” Accordingly, the
court determined that Echo was entitled to prejudgment inter-
est of $71,910.72, for the period beginning on the date Echo
recorded the construction lien.
(c) Discussion
Both parties assign error with respect to prejudgment inter-
est. Lund-Ross claims that the court erred by awarding Echo
prejudgment interest in case No. S-21-770. On cross-appeal,
Echo assigns that the court erred by denying it prejudgment
interest in cases Nos. S-21-729 and S-21-730.
[14-16] On appeal, Echo contends that in addition to
§ 45-104, Neb. Rev. Stat. § 45-103.02(2) (Reissue 2021)
also authorized an award of prejudgment interest. Sections
45-103.02 and 45-104 provide alternate and independent means
of recovering prejudgment interest. 42 Section 45-103.02(2)
authorizes the recovery of prejudgment interest on liquidated
claims. 43 When a claim is of the types enumerated in § 45-104,
then prejudgment interest may be recovered without regard to
42
Id.
43
See Weyh v. Gottsch, 303 Neb. 280, 929 N.W.2d 40 (2019).
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whether the claim is liquidated. 44 Although Echo did not iden-
tify § 45-103.02(2) as a basis for prejudgment interest before
the district court, the issue of prejudgment interest “as provided
in [§] 45-104” 45 was clearly raised. We look to both statutes.
(i) § 45-103.02(2)
[17] As noted, the record from the district court proceed-
ings does not reflect that Echo ever mentioned § 45-103.02(2)
as a basis for prejudgment interest. The district court cannot
commit error in resolving an issue never presented and submit-
ted to it for disposition. 46 Thus, in cases Nos. S-21-729 and
S-21-730—where the court found no entitlement to prejudg-
ment interest—we find no error in failing to award interest
under § 45-103.02(2).
As to case No. S-21-770, where the court awarded pre-
judgment interest under § 45-104, we merely observe that
§ 45-103.02(2) supplies another basis for such an award.
Section 45-103.02(2) states that “[e]xcept as provided in sec-
tion 45-103.04, interest as provided in section 45-104 shall
accrue on the unpaid balance of liquidated claims from the date
the cause of action arose until the entry of judgment.”
Here, Echo’s claim was liquidated. For a claim to be liq-
uidated, a dispute must not exist either to the amount due or
to the plaintiff’s right to recover. 47 Lund-Ross admitted each
of Echo’s statements of undisputed fact. Thus, it admitted
the balances that Echo asserted remained unpaid. We note
that in three cases involving the foreclosure of a mechanic’s
lien, terminology predating the Act, 48 our opinion referenced
§ 45-103.02 but disallowed interest because the claim was
44
Id.
45
§ 45-103.02(2).
46
Walsh v. State, 276 Neb. 1034, 759 N.W.2d 100 (2009).
47
See Gerhold Concrete Co. v. St. Paul Fire & Marine Ins., 269 Neb. 692,
695 N.W.2d 665 (2005).
48
See § 52-159 (substituting “construction lien” for “mechanic’s lien”).
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unliquidated. 49 That is not the case here. Thus, it appears that
§ 45-103.02(2) would have provided a perhaps clearer basis for
prejudgment interest.
(ii) § 45-104
[18] We now turn to § 45-104, which the court in case No.
S-21-770 used as the statutory basis for its award of prejudg-
ment interest. Section 45-104 applies to four types of judg-
ments: (1) money due on any instrument in writing; (2) settle-
ment of the account from the day the balance shall be agreed
upon; (3) money received to the use of another and retained
without the owner’s consent, express or implied, from the
receipt thereof; and (4) money loaned or due and withheld by
unreasonable delay of payment. 50
Lund-Ross advances several reasons in support of its belief
that prejudgment interest is unavailable. It argues that the only
relevant instrument in writing would be the material contract
between Echo and Signature, but that no such contract is in
evidence and that Echo did not sue Signature. Lund-Ross also
points to the lack of any instrument in writing between Echo
and the project owners. It further argues that the construction
lien itself does not create the obligation to the claimant; rather,
the lien provides a remedy.
The plain language of the statute provides insight. As set
forth above, interest shall be allowed “on money due on
any instrument in writing.” 51 An “instrument” is “[a]n object,
device, or apparatus designed or used for a particular purpose
or task.” 52 An alternative definition, specific to the legal realm,
49
See, Payless Bldg. Ctr. v. Wilmoth, 254 Neb. 998, 581 N.W.2d 420 (1998);
Blue Tee Corp. v. CDI Contractors, Inc., 247 Neb. 397, 529 N.W.2d 16
(1995); Lange Indus. v. Hallam Grain Co., 244 Neb. 465, 507 N.W.2d 465
(1993).
50
AVG Partners I v. Genesis Health Clubs, 307 Neb. 47, 948 N.W.2d 212
(2020).
51
§ 45-104.
52
See “Instrument,” Oxford English Dictionary Online, https://www.oed.
com/view/Entry/97158 (last visited Oct. 24, 2022).
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is “[a] formal legal document entailing rights and obligations,
such as a contract, deed, legislative act, etc.; any document
formally drawn up so as to have legal effect.” 53 A construction
lien fits within these definitions. That leads to the next ques-
tion: Is money due on the lien? Because the right to recover
money that was due on an underlying contract has essentially
transferred to the lien, the answer is yes.
Further, this court has previously allowed prejudgment inter-
est under § 45-104 in connection with mechanics’ liens. In
Walker v. Collins Construction Co., 54 we cited Comp. Stat.
§ 45-104 (1929) and stated that “where a lien is claimed for an
account for material and labor furnished for the construction
of a building, in the absence of an agreement to the contrary,
interest may be reckoned only from a date six months after
the last item.” 55 We thus allowed prejudgment interest to the
extent that lienors were entitled to liens. In O’Keefe Elevator
v. Second Ave. Properties, 56 we determined that a party who
brought an action to foreclose its mechanic’s lien was entitled
to prejudgment interest under § 45-104 because money was
“‘due and withheld by unreasonable delay of payment.’”
[19] We conclude an award of prejudgment interest in an
action to foreclose a construction lien is authorized under
§ 45-104. At oral argument, counsel for Echo provided no
rationale for interest to begin running before the filing of the
lien. We agree that any prejudgment interest would begin run-
ning on the date of recording the construction lien. That is the
date used by the district court in case No. S-21-770, and we
affirm its award of prejudgment interest.
[20] In connection with Echo’s cross-appeal, we conclude
that the court in cases Nos. S-21-729 and S-21-730 erred by
53
Id.
54
Walker v. Collins Construction Co., 121 Neb. 157, 236 N.W. 334 (1931).
55
Id. at 160, 236 N.W. at 336.
56
O’Keefe Elevator v. Second Ave. Properties, 216 Neb. 170, 175, 343
N.W.2d 54, 57 (1984), disapproved in part on other grounds, Weyh v.
Gottsch, supra note 43.
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denying prejudgment interest. Section 45-104 specifies that
“interest shall be allowed.” As a general rule, the word “shall”
in a statute is considered mandatory and is inconsistent with
the idea of discretion. 57 We therefore reverse the denial of
prejudgment interest and remand cases Nos. S-21-729 and
S-21-730 to the district court with direction to award such
interest in conformity with this opinion.
3. Attorney Fees
(a) Standard of Review
[21] On appeal, a trial court’s decision awarding or denying
attorney fees will be upheld absent an abuse of discretion. 58
We turn to the issues raised by the parties in cases Nos.
S-21-729 and S-21-770.
(b) Case No. S-21-729
[22] In case No. S-21-729, the court overruled Echo’s
request for attorney fees. On cross-appeal, Echo assigns error
to that denial. As a general rule, attorney fees and expenses
may be recovered in a civil action only where provided for
by statute or when a recognized and accepted uniform course
of procedure has been to allow recovery of attorney fees. 59
Echo claims attorney fees were appropriate under two statutes,
one—§ 52-157(3)—contained within the Act, and the other—
Neb. Rev. Stat. § 44-359 (Reissue 2021)—found in the chapter
of the Nebraska Revised Statutes addressing insurance. We
examine each statute.
(i) § 52-157
Echo contends that § 52-157(3) permitted an award of attor-
ney fees. After recalling principles of statutory construction,
we examine the language of the statute.
57
Signal 88 v. Lyconic, 310 Neb. 824, 969 N.W.2d 651 (2022).
58
McGill Restoration v. Lion Place Condo. Assn., supra note 41.
59
North Star Mut. Ins. Co. v. Miller, 311 Neb. 941, 977 N.W.2d 195 (2022).
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[23,24] When construing a statute, a court must determine
and give effect to the purpose and intent of the Legislature
as ascertained from the entire language of the statute consid-
ered in its plain, ordinary, and popular sense. 60 In construing
a statute, the court must look at the statutory objective to be
accomplished, the problem to be remedied, or the purpose to
be served, and then place on the statute a reasonable construc-
tion which best achieves the purpose of the statute, rather than
a construction defeating the statutory purpose. 61
Section 52-157 is titled “Remedies for wrongful conduct.”
Although a section head or title does not constitute any part of
the law, 62 the title fits the statutory language. The first subsec-
tion authorizes damages “[i]f a person is wrongfully deprived
of benefits to which he or she is entitled under [the Act] by
conduct other than that described in section 52-156.” 63 The sec-
ond subsection authorizes damages “[i]f in bad faith a claimant
records a lien, overstates the amount for which he or she is
entitled to a lien, or refuses to execute a release of a lien.” 64
The third and final subsection specifies that damages awarded
under § 52-157 “may include the costs of correcting the record
and reasonable attorney’s fees.” 65
We do not interpret § 52-157 as authorizing attorney fees
in every action involving foreclosure of a construction lien.
Notably, the statute authorizes fees as part of “[d]amages
awarded under this section.” 66 We do not read this language
as authorizing a fee award to a prevailing party for any action
under the Act.
60
Ag Valley Co-op v. Servinsky Engr., supra note 5.
61
Id.
62
Neb. Rev. Stat. § 49-802(8) (Reissue 2021).
63
§ 52-157(1) (emphasis supplied).
64
§ 52-157(2) (emphasis supplied).
65
§ 52-157(3).
66
Id. (emphasis supplied).
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ECHO GROUP V. TRADESMEN INTERNAT.
Cite as 312 Neb. 729
This reading of the statute is consistent with the comments
to a uniform act. Nebraska’s Act is based on the Uniform
Simplification of Land Transfers Act. 67 A comment to the sec-
tion of that uniform act which corresponds to § 52-157 pro-
vides examples of wrongful deprivation which would lead to
liability under the section:
(1) owner contracts under incorrect name so that claim-
ants are misled as to name in which real estate is held
which causes them to record under incorrect name with
resulting failure to secure priority against a third party;
(2) prime contractor furnishes incorrect owner name with
same result; (3) owner or prime contractor furnishes
incorrect description of real estate with resultant mis-
taken recording by claimant; (4) misstatement by prime
contractor as to amount of contract price or payment
thereof which induces claimants not to record lien; (5)
false or bad faith determination of damages from a
prime contractor’s breach which reduces the owner’s lien
liability. 68
The comment demonstrates that wrongful deprivation requires
something more than merely having to foreclose on a construc-
tion lien. And here, Echo has not alleged conduct similar to
that set forth in the comment. Instead, Echo highlights that
there was no genuine dispute as to the amount of its claim or
its right of recovery.
We cannot say that Echo was wrongfully deprived of benefits
under the Act. The Act authorized Echo to obtain a construc-
tion lien, which Echo obtained. The Act authorized foreclosure
of a lien, which Echo pursued. Echo alleged no wrongful con-
duct by Lund-Ross. In a case where a contractor successfully
foreclosed a construction lien, we stated that the contractor
received all of the benefits to which it was entitled under the
67
See Lincoln Lumber Co. v. Lancaster, supra note 8.
68
Unif. Simplification of Land Transfers Act § 5-403, comment 1, 14 U.L.A.
564 (2021).
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Act and, thus, was not entitled to relief under § 52-157. 69 To
the extent a decision by the Nebraska Court of Appeals 70 can
be read as authorization for attorney fees under § 52-157 wher-
ever a party prevails on a construction lien claim and foreclo-
sure, we disapprove it.
Accordingly, we find no error by the court in failing to
award attorney fees under § 52-157 in case No. S-21-729.
Next, we turn to the other statute that Echo contends autho-
rized an award of attorney fees.
(ii) § 44-359
Echo argues that attorney fees were mandated under
§ 44-359. That statute states:
In all cases when the beneficiary or other person
entitled thereto brings an action upon any type of insur-
ance policy, except workers’ compensation insurance, or
upon any certificate issued by a fraternal benefit soci-
ety, against any company, person, or association doing
business in this state, the court, upon rendering judg-
ment against such company, person, or association, shall
allow the plaintiff a reasonable sum as an attorney’s fee
in addition to the amount of his or her recovery, to be
taxed as part of the costs. If such cause is appealed, the
appellate court shall likewise allow a reasonable sum as
an attorney’s fee for the appellate proceedings, except
that if the plaintiff fails to obtain judgment for more
than may have been offered by such company, person, or
association in accordance with section 25-901, then the
plaintiff shall not recover the attorney’s fee provided by
this section. 71
69
See Tilt-Up Concrete v. Star City/Federal, 261 Neb. 64, 621 N.W.2d 502
(2001).
70
See Model Interiors v. 2566 Leavenworth, LLC, 19 Neb. App. 56, 809
N.W.2d 775 (2011).
71
§ 44-359 (emphasis supplied).
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Echo argues that a surety bond is an insurance policy for pur-
poses of § 44-359. We need not decide that issue here. There is
a fatal flaw to Echo’s argument.
The flaw is that Echo did not “bring[] an action upon”
the surety bond. Echo brought an action to foreclose its con-
struction lien. It was not until 2 months later that Lund-Ross
obtained the surety bond to substitute as collateral. And the
surety company was never brought in as a party in these
proceedings.
Echo argues that once it posted the lien release bond, thereby
transferring its claims from the property to the bond, the action
became one on the bond. We disagree. Had Lund-Ross instead
deposited “a sum of money in cash, certified check, or other
bank obligation” 72 to release the real estate from the lien, we
would not term the action as one on a deposit. The shifting of
the lien from the property to the collateral substitute does not
create an entitlement to attorney fees that would not other-
wise exist.
Cases involving bonds where we have allowed attorney fees
under § 44-359 demonstrate the contrast in circumstances.
We allowed attorney fees under a predecessor statute 73 to
§ 44-359 when a plaintiff sued a surety company which was
the surety on a bond. 74 In other words, the plaintiff brought an
action upon the surety bond. Similarly, we allowed fees under
§ 44-359 in a suit against an insurance company for recovery
under a motor vehicle dealer’s bond where the insurance com-
pany was the surety. 75 In a case where a drilling company sued
a subcontractor and the bonding companies for the general
contractor, we determined that attorney fees were authorized
72
§ 52-142(1)(a).
73
See Comp. Stat. § 44-346 (1929).
74
See City of Scottsbluff v. Southern Surety Co., 124 Neb. 260, 246 N.W. 346
(1933).
75
See Adams Bank & Trust v. Empire Fire & Marine Ins. Co., 244 Neb. 262,
506 N.W.2d 52 (1993).
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under § 44-359. 76 We explained, “It is clear in this case that
[the drilling company] did sue the bonding companies of the
principal contractor, and recovered judgment against them.” 77
But that is not the situation before us. We conclude that fees
are not authorized under § 44-359.
As an aside, we note that similar to § 44-359, a statute
within the Act 78 mandates attorney fees for a judicial pro-
ceeding brought on a surety bond. When the requirements of
§ 52-141 are met, no construction lien attaches to the real
estate and a claimant may proceed directly against the surety.
But no one contends that § 52-141 has application here, and we
conclude that it is not implicated.
In case No. S-21-729, we find no error by the court in not
awarding attorney fees.
(c) Case No. S-21-770
(i) Additional Facts and Findings
With respect to attorney fees, an attorney representing Echo
submitted an affidavit stating that a significant portion of the
work performed was applicable in all three cases, particularly
briefing, discovery, and a deposition. The attorney proposed
“accumulat[ing] all time and apply[ing] it to each based on the
pro rata share of the demand.” Echo set forth a table show-
ing the demand in each case and the corresponding pro rata
share of the demand. It showed that in case No. S-21-770,
the demand was $296,407.73 and the pro rata share was 87
percent. In case No. S-21-730, the demand was $32,781.03,
so the pro rata share was 9.6 percent. In case No. S-21-729,
the demand was $11,604.46, making the pro rata share 3.4
percent. According to the affidavit, the total fees incurred for
all three cases against Lund-Ross amounted to $41,607.50;
76
Rieschick Drilling Co. v. American Cas. Co., 208 Neb. 142, 303 N.W.2d
264 (1981).
77
Id. at 154, 303 N.W.2d at 271.
78
§ 52-141(6).
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Cite as 312 Neb. 729
thus, the pro rata share of fees for case No. S-21-770 totaled
$36,198.53. A document showing all time entries incurred in
the three cases was attached to the affidavit.
The court found Echo’s methodology to be appropriate and
awarded Echo attorney fees pursuant to § 52-157(3). The court
agreed with Echo that § 44-359 provided an additional legal
basis for attorney fees, reasoning that the surety bond qualified
as an insurance policy under § 44-359 and that Echo was a
beneficiary to that surety bond. Although the court stated that
it awarded Echo $36,198.53 in attorney fees, when it specifi-
cally set forth the final judgment, the court awarded attorney
fees of $41,607.50—the total for all three cases.
(ii) Discussion
On appeal, Lund-Ross argues that the court erred in case
No. S-21-770 by awarding fees because (1) it awarded the fees
incurred in all three cases rather than the proportionate share
requested and (2) it awarded fees incurred entirely in separate
matters. Echo does not dispute that the court’s order contained
the errors alleged.
[25,26] Lund-Ross does not allege or argue that the attorney
fee award was not statutorily authorized. Absent plain error,
an appellate court considers only an appellant’s claimed errors
that the appellant specifically assigns in a separate “assign-
ment of error” section of the brief and correspondingly argues
in the argument section. 79 But because we above concluded
that neither § 44-359 nor § 52-157 authorized the award of
attorney fees under the circumstances, allowing the award to
stand would constitute plain 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. 80 We therefore reverse the
award of attorney fees in case No. S-21-770.
79
In re Estate of Graham, 301 Neb. 594, 919 N.W.2d 714 (2018).
80
North Star Mut. Ins. Co. v. Miller, supra note 59.
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(d) Case No. S-21-730
In case No. S-21-730, the district court awarded attorney
fees of $3,994.32 under § 52-157(3). Although neither party
challenged the award on appeal, we must reverse it. For the
same reasons discussed above, the award under § 52-157(3)
was erroneous and allowing it to stand would be plain error.
Accordingly, we reverse the award of attorney fees in case
No. S-21-730.
VI. CONCLUSION
In all three appeals, we find no abuse of discretion by the
court in entering summary judgment and not granting equitable
relief. In cases Nos. S-21-730 and S-21-770, we find no error
by the court in entering judgment in an amount greater than the
amount of the surety bond. And in case No. S-21-770, we con-
clude that the court did not err in assessing judgment in excess
of the posted surety bond against Lund-Ross.
We conclude that prejudgment interest in an action to fore-
close a construction lien is authorized under § 45-104. Thus, in
cases Nos. S-21-729 and S-21-730, we reverse the denial and
remand with direction to award prejudgment interest in con
formity with this opinion.
Finally, we determine that neither § 44-359 nor § 52-157
authorize attorney fees under the circumstances presented in
these cases. We therefore reverse the award of such fees in
cases Nos. S-21-730 and S-21-770.
Judgment in No. S-21-729 affirmed in part
and in part reversed, and cause
remanded with direction.
Judgment in No. S-21-730 affirmed in part
and in part reversed, and cause
remanded with direction.
Judgment in No. S-21-770 affirmed in part
and in part reversed. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482823/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/10/2022 08:06 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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KINGERY CONSTR. CO. V. 6135 O ST. CAR WASH
Cite as 312 Neb. 502
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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KINGERY CONSTR. CO. V. 6135 O ST. CAR WASH
Cite as 312 Neb. 502
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 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482813/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/10/2022 08:06 AM CST
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STATE V. BROWN
Cite as 312 Neb. 654
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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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 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482821/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/10/2022 08:06 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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YOCHUM V. YOCHUM
Cite as 312 Neb. 535
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 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482820/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/10/2022 08:06 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
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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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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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IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549
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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IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549
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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IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549
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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IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549
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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IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549
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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IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549
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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IN RE ESTATE OF KOETTER
Cite as 312 Neb. 549
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 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482816/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/10/2022 08:06 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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Cite as 312 Neb. 580
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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STATE V. VANDERFORD
Cite as 312 Neb. 580
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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Cite as 312 Neb. 580
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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STATE V. VANDERFORD
Cite as 312 Neb. 580
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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Cite as 312 Neb. 580
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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STATE V. VANDERFORD
Cite as 312 Neb. 580
(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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STATE V. VANDERFORD
Cite as 312 Neb. 580
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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Cite as 312 Neb. 580
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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Cite as 312 Neb. 580
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.
- 605 -
Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
STATE V. VANDERFORD
Cite as 312 Neb. 580
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 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489056/ | FINDINGS OF FACT AND CONCLUSIONS OF LAW
SIDNEY M. WEAVER, Bankruptcy Judge.
This cause having come on to be heard upon plaintiff’s complaint seeking denial of discharge, pursuant to Section 727 of the United States Bankruptcy Code, and the Court, having heard the testimony and examined the evidence presented, having observed the candor and demeanor of the witness, having considered the arguments of counsel, and being otherwise fully advised in the premises, does hereby make the following findings of fact and conclusions of law:
This Court has jurisdiction of the parties and the subject matter.
The plaintiff, Herb Harris, is duly qualified and acting trustee of the debtor who is the defendant in this proceeding. The complaint upon which this matter was tried was brought on two (2) grounds, as follows:
A. The debtor failed to keep or preserve sufficient books, records, documents, and papers from which his financial condition or business transactions might be ascertained; and
B. The debtor has filed false schedules in this proceeding.
The debtor, Kenneth B. Winters, was employed as an associate by Horizon. Associates, Inc., at the time of the filing of the bankruptcy, a business brokerage firm which advertises, sells and solicits purchasers of businesses. From 1974 through 1977 the debtor’s statement of financial affairs reflects that he was the president of Winters and Company, Inc. and its wholly owned subsidiaries. Additionally, in 1977 he was employed as consultant to Jesup Lamont Capital Markets, Inc. and from the period of 1977 through 1979 he acted as president of Imperial Mortgage Corporation. Despite the representations on the debtor’s statement of financial affairs the Court finds, from the debtor’s testimony at trial and at the taking of his 205 Examination, that he had been actively involved in at least seven corporations, or subsidiaries, within the six years immediately preceding the filing of the bankruptcy petition, most of whose names were not listed on the statement of financial affairs.
With regard to the first ground for denial of the debtor’s discharge as alleged in plaintiff's complaint, the Court finds that in response to inquiry on the statement of financial affairs as to whether the debtor kept books of account or records relating to his affairs within the two years immediately preceding the filing of the original petition, the debtor answered “NONE”. Additionally, the Court finds that the debtor was asked at the 205 Examination, as well as several times during trial whether he had read the petition, statement of financial affairs and accompanying schedules that were prepared by his attorneys prior to his signing the same and, on all occasions, he answered in the affirmative and stated that the information contained therein was true and correct to the best of his knowledge.
The Court finds that at the 205 Examination the debtor failed to produce any personal books and records for the year immediately preceding the filing, with the exception of twenty money orders made on American National Bank and Trust Company between September 17, 1980 and January 7, 1981. (The original petition was filed on November 10, 1980.) The debtor admitted both at the 205 Examination and at the trial that no books of account or records *131relating to his affairs were kept from November 1979 to September 1980. The debt- or did not satisfy the Court in explaining why he failed to keep or preserve books and records for the period. His level of noncompliance with the trustee’s inquiry into this area is overwhelming, especially in light of the debtor’s long history of specialized experience in government bonds, municipal bonds, corporate bonds and banking practices, areas wherein proper and effective book and record keeping are of essential importance. Furthermore, the Court finds that the trustee has been seriously handicapped in this case as a result of the debtor’s failure to keep and preserve adequate business records.
The Court finds that the debtor filed a false statement of financial affairs in these proceedings. The debtor’s statement reflects that no income was received from the debtor’s trade or profession during each of the two years immediately preceding the filing of the original petition. However, copies of the debtor’s form 1040 U.S. Individual Income Tax Returns for the years 1979 and 1978 were produced at the 205 Examination and attached to the transcript of the 205 Examination as plaintiff’s Exhibit “No. 1” and “No. 2” respectively, and reveal substantial amounts of income earned from his profession during the two years immediately preceding the filing. The Court finds that; the debtor’s 1978 Return reflects business income in the amount of $78,000.00 and that the debtor received $526.45 of “other income” from the Capital National Bank Trustee Employees Profit Sharing Retirement Plan of Hibbard O’Conner & Weeks, Inc. in the year 1978 as evidenced by the 1040 Return, although the same was not reflected on the debtor’s statement of financial affairs.
The statement of financial affairs reflects that the debtor did not maintain any bank accounts, either alone or jointly, within the two years immediately preceding the filing of the petition. Despite this representation, the Court finds that the debtor had access to at least six corporate bank accounts and one personal account maintained in his sole name, within the two years immediately preceding the filing of the petition.
The debtor additionally stated on his statement of financial affairs that there were no repayments on loans, in whole or in part, made during the year immediately preceding the filing of the original petition. In fact, the Court finds that the debtor had made his first and second mortgage payments on his home throughout the year immediately preceding the filing of the original petition.
The debtor’s statement of financial affairs reflects that there were no transfers, either absolute or for the purpose of security, or any other disposition of real or tangible personal property made during the year immediately preceding the filing of the petition. Yet, the Court finds that the debt- or’s 1979 U.S. Income Tax Return, form 4797, documents the sale of various horses on December 15, 1979, evidencing transactions of the nature within the scope of inquiry during the year immediately preceding the filing of the petition.
The Court finds that the debtor filed false schedules in this proceeding. The debtor testified at trial as well as at the taking of his 205 Examination that he had failed to list his first and second mortgagees. Landmark First National Bank and Beneficial Finance Corporation, respectively, on the list of “creditors holding security” and represented in fact, with respect to the secured creditors that he had none.
Further, the Court finds that the debtor testified at trial that at the time of the filing of the original petition substantial balances existed on numerous major credit card accounts while none of these creditors were listed by the debtor on the list of “creditors having unsecured claims without priority”. Additionally, unsecured loans from Anneli Porvol, in the amount of $6,000.00, Martin A. Lutzger, in the amount of $3,000.00 and Gulfstream Bank, in the amount of $5,000.00 were not scheduled.
The Court finds that these creditors were intentionally omitted from the schedules by the debtor. It is well recognized that under Bankruptcy Rule 108(a), the list of creditors should be a list of all creditors.
*132Bankruptcy Rule 108(a) “schedules and statement required” states in pertinent part: “The bankrupt shall file with the Court schedules of all his debts and all his property... The Court finds, based upon the debtor’s admissions at the 205 Examination and at trial that he owned extensive household goods, supplies and furnishings, in addition to wearing apparel and other personal property, none of which appeared on his list of personal property. The Court finds that the reference to “miscellaneous personal property” on the schedule of “property not otherwise scheduled” fails to describe this property and that the same was scheduled in a catch-all fashion by the debtor with the intent to defraud his creditors.
Based upon the foregoing facts, the Court finds that the debtor should be denied a discharge pursuant to Section 727(a)(3) of the Bankruptcy Code. The facts clearly demonstrate that the debtor, a man with highly specialized skills and expertise in the area of securities, brokeraging and banking, failed to keep or preserve recorded information, including books, documents, records and papers, from which his financial condition or business transactions might have been ascertained. The records maintained by this debtor are inadequate and fail to comply with the standards of Section 727(a)(3) of the Bankruptcy Code. The plaintiff has established a sufficient basis under Section 727(a)(3) of the denial of the debtor’s discharge.
Additionally, the Court finds that the debtor’s statement of financial affairs and accompanying schedules of liabilities and assets are completely devoid of the truthfulness and continuity which is required by Bankruptcy Rule 108(a). The Court finds that the debtor knowingly and fraudulently made false statements and filed false schedules, which he certified under penalty of perjury were true and correct.
Based upon the evidence and testimony presented, the Court finds that the debtor is not entitled to a discharge and the same is hereby denied. A separate judgment will be entered in accordance with these findings of fact and conclusions of law. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489059/ | ORDER ON MOTION TO WAIVE BOND REQUIREMENT
R. J. SIDMAN, Bankruptcy Judge.
On May 13, 1981, the Chapter 13 debtors, James and Yvonne Korting, filed an application for removal of a certain pending state court action pursuant to the provisions of Rule 7004(a) of the Local Interim Bankruptcy Rules. On June 2, 1981, the debtors filed a motion to waive the bond requirement contained in Rule 7004(b) of such Local Interim Bankruptcy Rules. The bond requirement is stated as follows:
“Except where a trustee or debtor in possession in a case under the Bankruptcy Code or the United States is an applicant, each application for removal of a civil action or proceeding shall be accompanied by a bond with good and sufficient surety conditioned that the party will pay all costs and disbursements incurred by reason of the removal proceedings should it be determined that the civil action or proceeding was not removable or was improperly removed.” Rule 7004(b), Local Interim Bankruptcy Rules, (emphasis added)
The provisions of § 1306(b) of the Bankruptcy Code are relevant on this issue:
“Except as provided in a confirmed plan or order confirming a plan, the debtor shall remain in possession of all property of the estate.” 11 U.S.C. § 1306(b).
For the purposes of the bond requirement contained in Rule 7004(b) of the Local Interim Bankruptcy Rules, this Court hereby finds that the Chapter 13 debtors are debtors in possession and thus no bond is required of such debtors on the application *229for removal filed in this ease. With this finding, the Court hereby finds that the motion of the debtors to waive the bond requirement is without merit because no bond is required. The motion is hereby denied.
IT IS SO ORDERED. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489060/ | ORDER ALLOWING AMENDMENT TO CLAIM ORDER AUTHORIZING TRUSTEE TO PAY CLAIMS
RODNEY R. STEELE, Bankruptcy Judge.
On April 14, 1981, the Peoples Bank of Clio and the Federal Deposit Insurance Corporation as successor to the Southern National Bank, who are creditors in this proceeding, and in other proceedings connected with this case, filed a Petition to amend their Proof of Claim to claim interest accrued after the date of bankruptcy upon the principal amount of their claim as reduced by certain payments already made out of the estate, representing liquidation of security collateral, and set-offs.
At the same time the Peoples Bank and the F.D.I.C. as successor, filed their amendment to Proof of Claim to reflect the amount of post-petition interest which they did claim, in this case amounting to $94,-172.24.
By an Order entered on April 21, 1981, the Petition to amend claim was set to be heard at Montgomery, Alabama at 2:00 p. m., on Monday, May 11, 1981.
Notice was given to the attorney for the Bankrupt, to the attorneys for the bank and F.D.I.C., to the Trustee, to the Debtor, and to the Peoples Bank of Clio, Alabama.
On May 5, 1981, the Bankrupt by his attorney filed an objection to the allowance of the Amendment to Proof of Claim filed by the Peoples Bank and F.D.I.C., as successor, on the grounds that the claim erroneously includes interest at ten percent when the interest allowable is at the legal rate, and on the further ground that the claim erroneously fails to give credit to the Bankrupt for the sale by the Trustee of collateral, in that credit is given from the date of receipt of proceeds rather than from the date of sale of the collateral.
At the appointed time and place the Petition to Amend came on for hearing in accordance with the Order. Present was the attorney for the Bankrupt, the attorney for the bank and the attorney for the F.D.I.C., and the Trustee.
At that time the parties agreed that the matter might be submitted upon the record, including the Amendment to Proof of Claim, and that the following three points of law were involved:
1. On what principal figure is interest to be computed?
2. What is the correct rate of interest on such figure?
3. What are the dates on which such interest begins to run?
The parties have now submitted briefs on these points.
FACTS
In this bankruptcy case seven claims were filed. Claim numbered two of Alto L. Jackson, Sr. and Pearl N. Jackson was disallowed in full by an Order dated September 23, 1980.
Claim number three of Jena Shirley, the Barbour County Tax Collector was allowed as secured and paid in full as an ad valorem tax. See the Order dated March 30, 1981.
The remaining claims all unsecured, and the amounts are as follows:
Claim number one of The Bank of Ozark allowed in the amount of $15,735.59.
Claim number four, First Farmers and Merchants National Bank of Troy, Alabama, allowed in the amount of $6,261.13 as of September 23, 1980. See the Order of this Court dated September 23, 1980.
*231Claim number five of Allis-Chalmers Credit Corporation allowed in the amount of $5,177.48.
Claim number six of the Peoples Bank of Clio (and the F.D.I.C. as successor, etc., as its interest may appear) unpaid after reductions in the amount of $73,078.86.
Claim number seven of Benelle S. Warr, Tax Collector Barbour County, Clayton, Alabama, which is disallowed as a duplicate of claim number three already paid.
After the Trustee liquidated all of the assets in this estate he made payment to the Peoples Bank of Clio and the F.D.I.C., as successor, of all of that property which was secured to them under their security agreements or mortgages. Trustee has in addition settled a ,law suit in Jefferson County with the Peoples Bank and F.D.I.C., and that has resulted in a reduction of the amount of their claim. Trustee has also paid, in a companion ease, a dividend on this same debt which has reduced the debt to the present $73,078.86.
Trustee now has on hand in this estate the sum of $185,168.78 realized by him from the liquidation of unencumbered assets and which are now available for distribution to the above claims numbered one, four, five and six.
After the payment of these four claims in the amounts above specified, the Trustee will have remaining in his hands the sum of $84,915.72.
The questions raised then in this Petition are whether the $84,915.72 is to be distributed, to the creditors whose claims are paid in full in this proceeding, in payment of interest accrued after the date of bankruptcy and if so, upon what basis.
CONCLUSIONS
For the reasons set out below we conclude that the distribution of the remaining assets, consisting of $84,915.72, now in the hands of the Trustee, ought to be distributed to the creditors whose allowed claims have been paid in full in this case as payments on interest accrued since bankruptcy.
We start with what we perceive to be some basic bankruptcy concepts under the 1898 Act.
1. The Debtor is entitled to his exemptions out of property which may fall into his estate in bankruptcy.
2. The estate in bankruptcy after exemptions are set aside, is a trust fund for the benefit of creditors.
3. The trust fund is due to be exhausted in payments to creditors for the full amount of their claims including principal and interest. Where the estate is sufficient to pay all allowed claims in full, post-petition accrued interest is to be paid out of the estate to the allowed claims.1
Only where it is not so exhausted are trust funds due to be refunded to the Bankrupt.
4. The purpose of bankruptcy is to so administer an estate as to bring about a rateable distribution of the assets of the estate among the bankrupt’s creditors, according to their interests as of the date of bankruptcy. Vanston Bondholders Protective Committee v. Green (1947), 329 U.S. 156, 67 S.Ct. 237, 91 L.Ed. 162. This equitable principle undoubtedly extends to the payment of post-petition interest out of the estate remaining, if all valid allowed claims have been paid in full.
The remaining trust funds in this case are to be distributed to the remaining unsecured creditors, including the Peoples Bank of Clio and F.D.I.C., as successor, upon their allowed claims (including principal and interest accrued up to the date of *232bankruptcy), until the fund is exhausted or until they are paid their claims in full, principal and interest, that is, up to the amount of their allowed claims, plus interest at some rate or rates until the fund is exhausted.
What rate of interest? It must be that rate of interest established by contract or by the law.
A claim based upon an unsecured debt raised upon open account should bear interest after bankruptcy at the legal rate. In re John Osborn’s Sons and Company, C.A. 2, 1910, 177 F. 184.
A claim based upon an unsecured debt raised by written contract should bear interest at the contract rate if the contract is valid, not avoidable and not usurious. In re Oklahoma Railway Company, D.C.W.D.Okl. 1945, 61 F.Supp. 96.
In this case there is no question of invalidity, avoidability or usury of the remaining . claims. They are due to be paid, in accordance with the above principles and in accordance with Exhibit A attached hereto.
It is therefore ORDERED:
1. The amendment of the Peoples Bank of Clio, and F.D.I.C., as successor, is hereby allowed, and the claim as amended is allowed.
2. The principal figure on which post-petition interest is to be computed is the allowed amount of each remaining claim, less any payments or set-offs since adjudication, as of the dates of approval of such payments or set-offs.
3. The correct rate of interest in computing post-petition interest is the contract rate, or upon open debts, the legal rate.
4. Post-petition interest is this case begins to run from the date of adjudication.
5. Trustee is hereby authorized to pay from the remaining $84,915.72 in his hands after the payment in full of the face amount of all claims heretofor allowed in this case, the amounts set out in the column of Exhibit A to this Order headed “Percent Interest To Be Paid.”
Such amounts are to be paid out after ten days from the date of this Order with no notice of appeal having been filed and with no application for rehearing or recomputation having been filed.
*233
. The rule of paying interest on a secured debt, where the collateral security, on liquidation, is sufficient to pay the principal and interest, is a separate and distinct matter, not germane to this case. Cf. In re Oklahoma Railway Company, D.C.W.D.Okl., 1945, 61 F.Supp. 96; Coder v. Arts, C.A. 8, 1907, 152 F. 943. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489061/ | FINDINGS OF FACT AND CONCLUSIONS OF LAW
SIDNEY M. WEAVER, Bankruptcy Judge.
This cause is before the Court upon the Complaint To Avoid Preferential/Fraudulent Transfer filed by the Plaintiff herein and upon this Court’s Order of May 7, 1981, setting the cause for trial before the Court on May 27, 1981; and the Court having heard the testimony and examined the evi*246dence presented, observed the candor and demeanor of the witnesses, and having considered the argument of counsel and being fully advised in the premises, the Court does hereby make the following findings of fact and conclusions of law.
FINDINGS OF FACT
1. On September 25, 1979, JAMES R. CORYELL, III filed a Voluntary Petition in Bankruptcy in this Court and was subsequently adjudicated a Bankrupt.
2. Plaintiff JAMES C. MULLEN is the duly appointed, qualified, and acting trustee in bankruptcy for the Estate of JAMES R. CORYELL, III.
3. In 1962, JAMES R. CORYELL, Jr., the father of the Bankrupt herein, passed away, dying intestate, and owning with his wife, the Defendant ROSE M. CORYELL the following described property, located in Broward County, Florida, within this judicial district:
“The west 40 feet of Lot 18 and the east 15 feet of Lot 19, Block 6, Santa Barbara Estates, Section A, according to the plat thereof recorded in Plat Book 9, Page 10, of the Public Records of Broward County, Florida, together with all and singular the appurtenances thereto belonging.” [hereafter the subject property]
4. Title to the subject property was held by the Bankrupt’s parents as tenants by the entireties, and the subject property constituted their homestead.
5. Defendant ROSE M. CORYELL has maintained her residence at the subject property continuously since the death of her husband.
6. On June 24, 1975, the Defendant ROSE M. CORYELL executed and delivered a Quit Claim Deed on the subject property to one Louise C. Cannon, which Deed was recorded in the Public Records of Broward County on June 27, 1975 at O. R. Book 6253, Page 38. (Plaintiff’s Exhibit No. 1).
7. Also on June 24, 1975 Louise C. Cannon executed and delivered a Quit Claim Deed on the subject property to the Defendant ROSE M. CORYELL and the Bankrupt, JAMES R. CORYELL, III (improperly described as JAMES R. COR-YELL, JR.) as joint tenants with rights of survivorship. This instrument was also recorded in the public records of Broward County at O. R. Book 6253, Page 39. (Plaintiff’s Exhibit No. 2).
8. On December 23, 1975 the Defendant ROSE M. CORYELL and the Bankrupt JAMES R. CORYELL, III gave a Mortgage Deed on the subject property to United Federal Savings and Loan Association which was recorded in the public records of Broward County at O. R. Book 6848, at Page 456. (Plaintiff’s Exhibit No. 3).
9. The foregoing Mortgage Deed was given to United Federal Savings and Loan Association in connection with a loan in the amount of $25,000.00, the proceeds of which were largely used by the Bankrupt in payment of his personal obligations. Only a small percentage of the loan was used by the Defendant ROSE M. CORYELL.
10. The Bankrupt has made nearly all of the monthly installment payments on the mortgage obligation to United Federal Savings and Loan Association since the inception, and up to and including the time of trial in this cause.
11. On August 11, 1978, the Defendant ROSE M. CORYELL and the Bankrupt JAMES R. CORYELL, III executed a Warranty Deed conveying all of their right, title, and interest in the subject property to the Defendant ROSE M. CORYELL, alone. (Plaintiff’s Exhibit No. 4).
12. The foregoing described Warranty Deed was apparently actually delivered at the time of its execution to the Defendant ROSE M. CORYELL and thereafter given by her to an attorney for recordation in the public records of Broward County.
13. The foregoing described Warranty Deed (Plaintiff’s Exhibit Noi 4) although made and executed on August 11, 1978, was not filed for public record in Broward County, Florida (or indeed anywhere) until July 19, 1979 when it was filed at O. R. Book 8335, Page 532.
*24714. July 19, 1979 is within four months of the date of the filing of the bankruptcy petition, i. e., September 25, 1979.
15. On July 19, 1979 the Bankrupt was insolvent, and his liabilities exceeded his assets.
16. At the time of the execution and delivery of the Warranty Deed (Plaintiff’s Exhibit No. 4) there were lawsuits pending against the Bankrupt which ultimately resulted in Judgments being entered against him for money damages in excess of $50,-000.00, as disclosed on the Schedules filed herein.
17. Although the Bankrupt testified in this cause that the conveyance represented by the Plaintiff’s Exhibit No. 4 was made and executed purely at the insistence of the Defendant, his mother, for Estate-planning purposes, the Court finds that it was done for the purpose of attempting to protect the Bankrupt’s interest in the subject property from existing creditors and to hinder and impair such creditors in attempting to satisfy their claims against any property of the Bankrupt, or in which the Bankrupt had an interest.
18. On July 19, 1979, the subject property had a value in excess of $35,000.00.
19. There was no consideration, money, property, or thing of value given by the Defendant to the Bankrupt in connection with the execution and delivery of the Warranty Deed in Plaintiff’s Exhibit No. 4, and the conveyance was made wholly without fair consideration.
20. As a result of the conveyance in Plaintiff’s Exhibit No. 4, the Bankrupt was rendered thereby incapable of satisfying the claims of existing creditors and was rendered insolvent.
21. On August 11, 1978 and on July 19, 1979 Defendant ROSE M. CORYELL had reasonable cause to believe that her son, the Bankrupt, was insolvent and would be rendered insolvent by virtue of the transfer evidenced by Plaintiff’s Exhibit No. 4.
22. The effect of the transfer in Plaintiff’s Exhibit No. 4 was to enable the Defendant to obtain a greater percentage of any such debt than some other creditor of the same class of unsecured creditors.
23. The Bankrupt effected the transfer to the Defendant with the purpose or intent to delay, hinder, or defraud existing creditors of their just and lawful rights against the Bankrupt’s property, and the Defendant either knew, or had reasonable cause to believe, of the purpose and intent of the Bankrupt in making such transfer.
CONCLUSIONS OF LAW
24. This Court has jurisdiction over the subject matter and the parties pursuant to §§ 2(7), 60(b), and 67(e) of the Bankruptcy Act, as amended, and pursuant to 28 U.S.C. § 1471 (1979).
25. The transfer evidenced by Plaintiff’s Exhibit No. 4 occurred when it was filed for public record in the public records of Broward County, Florida on July 19, 1979. § 60(a)(2) and § 67(d)(5) of the Bankruptcy Act.
26. The transfer evidenced by Plaintiff’s Exhibit No. 4 constitutes a “voidable preference” within the meaning of § 60(a) of the Bankruptcy Act.
27. The transfer evidenced by Plaintiff’s Exhibit No. 4 occurred on July 19, 1979 when it was filed for public record in the public records of Broward County, Florida. § 67(d)(5) of the Bankruptcy Act.
28. The transfer evidenced by Plaintiff’s Exhibit No. 4 constitutes a fraudulent conveyance within the meaning of § 67(d) of the Bankruptcy Act.
29. At the time of the transfer evidenced by Plaintiff’s Exhibit No. 4, the Bankrupt was “insolvent” within the meaning of § 1(19) and § 67(d)(1)(d) of the Bankruptcy Act.
30. At the time of his father’s death in 1962, the Bankrupt, as the only son of JAMES R. CORYELL, JR., and ROSE M. CORYELL, acquired a vested remainder in the subject property pursuant to former § 731.27, Fla.Stat. (1961), now § 732.401, Fla.Stat. (1979).
*24831. The transfer evidenced by Plaintiff’s Exhibit No. 4 constitutes a “fraudulent conveyance” within the meaning of § 726.01 Fla.Stat. (1979).
32. Plaintiff, the trustee herein, is entitled to a Final Judgment cancelling, vacating, and setting aside the transfer evidenced by Plaintiff’s Exhibit No. 4 and providing that by virtue of the filing of the voluntary petition in bankruptcy herein that the Plaintiff is the owner of an undivided one-half interest in the subject property and that the subject property should be hereafter sold and the proceeds of such sale thereafter divided equally between the Defendant ROSE M. CORYELL and the Plaintiff, as trustee for the Estate of JAMES R. CORYELL, III. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489062/ | FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION
ALEXANDER L. PASKAY, Chief Judge.
THE MATTER in controversy is the conflicting claims to a check in the amount of $2,569.67 by John Washburn, the Trustee of the estate and by General Motors Acceptance Corporation (GMAC). It is the contention of GMAC, the Plaintiff who instituted this adversary proceeding, that by virtue of certain provisions of a lease agreement, it is entitled to the check.
*249Both the Plaintiff and the Defendant agree that there are no factual matters in dispute and the matters can be resolved as a matter of law by construing the relevant portion of the lease. The facts as they appear from the record can be summarized as follows:
GMAC is the financing arm of General Motors and primarily transacts business through local General Motors dealers. The Defendant, John Washburn, is a duly appointed trustee for the estate of Fresh Enterprises, Inc. (the Debtor), the corporation currently involved in a liquidation proceeding under Chapter 7 of the Bankruptcy Code. On May 1, 1979, Fresh Enterprises leased a 1979 Ford Thunderbird, Serial No. 9GH239563 from Bill Branch Leasing, Inc., a leasing company located in Ft. Myers, Florida. The motor vehicle was titled to Bill Branch Leasing, Inc. It is not clear from the title certificate whether GMAC was merely a lienholder or a co-owner of the vehicle. The lease under consideration in this controversy, provides inter alia in ¶24 that the lessee shall maintain during the lease at its sole expense, an insurance policy on the vehicle providing insurance in the amount of $100,000 for any one person for personal injury or death; $300,000 for any one accident for personal injury or death; $25,000 for property damage if the leased vehicle is an automobile; or $50,000 for property damage if the leased vehicle is a truck, and uninsured motorist coverage. This clause also provides that the coverage shall cover the lessor as an additional insured. The clause further provides that the lessee shall at all times keep the vehicle insured against all loss, damage or destruction due to fire, theft or physical damage.
The very next clause, ¶25, is entitled “Maintenance and Repairs.” It provides that the lessee shall pay for all maintenance and repairs to keep the vehicle in good working order and condition and shall return the vehicle in good condition, reasonable wear and tear excepted upon completion of the lease. It is without dispute that the lease was assigned to GMAC and that the vehicle was damaged while it was in the possession and custody and control of the Debtor. It further appears that in compliance with the insurance requirements of the lease, the lessee acquired an insurance policy from Crum and Forster Insurance Company. It further appears that Fresh Enterprises made a claim for the loss and that the insurance company issued its check in the amount of $2,569.67 in satisfaction of the claim, which check is the subject of this controversy.
According to the Plaintiff, the check is in the possession of the trustee who refuses to turn it over to GMAC after demand has been made. The trustee admits that he has a check, but contends, however, that the vehicle has been repaired; that the repairman has been paid and since the trustee paid for the repairs pursuant to the terms of the lease, he is entitled to the proceeds of the check, especially since GMAC obtained possession of the vehicle in repaired condition, did not pay for the repairs.
Neither the Plaintiff nor the Defendant furnished any authority which would be of assistance to resolve this controversy. The lease under consideration is what is commonly referred to as a “boiler plate contract” and no doubt was prepared by the lessor. It is a well-recognized rule of construction that a language in a contract should be interpreted more strongly against a party who has selected the language and ambiguous language will be construed against the party responsible for drafting the contract where another construction would produce an unjust result or defeat the purpose of the contract. Bouden v. Walker, 266 So.2d 353 (Fla.2d DCA 1972); 11 Fla.Jur., 2d Contracts, § 1106 at 400; 17 Am.Jur., 2d Contracts, § 276 at 689. There is no question that ¶ 24, the insurance clause, and ¶ 25, the maintenance and repair clause when read together are ambiguous. On the one hand, ¶ 24 seems to intimate that the requirement of the lease that the lessee maintains insurance and the insurance contract shall include a standard loss clause that all payments by the insurance company for any loss would be paid to the lessor. On the other hand, the maintenance and repair clause indicates that all repairs *250to the vehicle leased shall be borne by the lessee. This, of course, creates an anomalous situation because in ease of damage to the vehicle, the lessee has to bear the cost of repairs, yet would not have the benefit of the insurance settlement made for a claim for the very same damage. This is clearly inequitable and unfair.
While the first insurance clause speaks about property damage, the fair reading of this clause leaves no doubt that this term refers to property damage done by the vehicle and not damage suffered by the vehicle. This is clear since the damage clause has a coverage of $25,000 if it is an automobile and $50,000 if the vehicle is a truck, and of course, a 1979 Thunderbird is certainly not worth $25,000. However, the insurance clause also requires the lessee to maintain the insurance on the vehicle against all damage (emphasis supplied) or destruction due to theft, fire, or physical damage. This clause also requires to contain a standard loss payable clause under which payment shall be payable in case of loss to the lessor and the lessor would be entitled only to payment if there was a total loss of the leased vehicle and not for payment for damage to the leased vehicle. This clause does not mention any damage and the limits of the application of a loss payable clause in the event the vehicle is lost. When this provision is read in conjunction with the maintenance and repair clause, it is logical to infer that the parties intended that all insurance claims for physical damage will be paid to the lessee since under the contract it is the lessees obligation to pay for the repairs.
In light of the foregoing, this Court is satisfied that a fair reading of the lease agreement permits no other conclusion that’s the trustee is entitled to the benefits of the insurance check and GMAC has nothing more than a possible general unsecured claim if the vehicle, when returned, was not returned in good condition, reasonable wear and tear excepted.
A separate final judgment will be entered in accordance with the foregoing. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482834/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/10/2022 08:06 AM CST
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CARRIZALES V. CREIGHTON ST. JOSEPH
Cite as 312 Neb. 296
Natasha Carrizales, individually and on behalf of
Nina Carrizales, a minor, as her guardian and next
friend, and Nina Carrizales, by and through her
mother, guardian, and next friend, Natasha
Carrizales, appellants, v. Creighton Saint
Joseph Regional Healthcare System,
LLC, et al., appellees.
___ N.W.2d ___
Filed August 26, 2022. No. S-21-150.
1. Judgments: Jurisdiction: Appeal and Error. The question of juris-
diction is a question of law, upon which an appellate court reaches a
conclusion independent of the trial court; however, findings of the lower
court as to underlying factual disputes, if any, in regard to the jurisdic-
tional issue will be upheld unless they are clearly erroneous.
2. Limitations of Actions: Dismissal and Nonsuit. Neb. Rev. Stat.
§ 25-217 (Reissue 2016) 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 action and not served
with process within the time set forth in the statute.
3. Limitations of Actions: Dismissal and Nonsuit: Jurisdiction. After
dismissal of an action by operation of law under Neb. Rev. Stat.
§ 25-217 (Reissue 2016), there is no longer an action pending and the
district court has no jurisdiction to make any further orders except to
formalize the dismissal.
4. Evidence: Appeal and Error. Generally, the control of discovery is a
matter for judicial discretion, and decisions regarding discovery will be
upheld on appeal in the absence of an abuse of discretion.
5. Appeal and Error. Appellate review of a district court’s use of inherent
power is for an abuse of discretion.
6. Judgments: Words and Phrases. An abuse of discretion occurs when
a trial court’s decision is based upon reasons that are untenable or
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unreasonable or if its action is clearly against justice or conscience,
reason, and evidence.
7. Courts. Nebraska courts, through their inherent judicial power, have
the authority to do all things necessary for the proper administration
of justice.
8. 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.
9. ____: ____. 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.
10. Summary Judgment: Malpractice: Physicians and Surgeons:
Affidavits: Proof. At the summary judgment stage, it is well settled that
a physician’s self-supporting affidavit suffices to make a prima facie
case that the physician did not commit medical malpractice.
11. Expert Witnesses. A court should not admit expert testimony if it
appears the witness does not possess facts that will enable him or her
to express an accurate conclusion, as distinguished from a mere guess
or conjecture.
Appeal from the District Court for Douglas County: James
T. Gleason, Judge. Affirmed.
Theodore R. Boecker, Jr., of Boecker Law, P.C., L.L.O., for
appellants.
Joseph S. Daly and Mary M. Schott, of Evans & Dixon,
L.L.C., for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
Natasha Carrizales, individually and on behalf of her
minor daughter, Nina Carrizales (individually and collectively
Carrizales), brought a medical malpractice action alleging neg-
ligence during Nina’s birth. The district court found that one
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defendant was dismissed by operation of law as a result of
Carrizales’ failure to timely serve it. The district court granted
summary judgment in favor of the remaining defendants after
granting a motion to strike Carrizales’ expert witness. Carrizales
appeals these rulings. Finding no error, we affirm.
I. BACKGROUND
Carrizales filed her lawsuit on October 30, 2013. In her
complaint, Carrizales alleged that on October 30, 2011, she
was admitted to an Omaha, Nebraska, hospital and that she
gave birth to her daughter that day. Carrizales also alleged
that various doctors responsible for her and her daughter’s
care negligently failed to respond to signs of fetal distress and
that, as a result, her daughter was born with severe disabilities,
which will reduce her life expectancy and require extended
medical attention throughout the course of her life.
Among the defendants named in the lawsuit were Creighton
University Medical Center-Saint Joseph Hospital (Creighton
University Medical Center) and Creighton University. Carrizales
alleged that Creighton University Medical Center operated
the hospital at which the birth took place and that Creighton
University employed or granted privileges to practice medicine
at the hospital to several individual defendants. The individ
uals named as defendants included three doctors: Caron J.
Gray, Nicholas L. Wulf, and Richard G. Arms III (collectively
the doctors). Carrizales alleged that the doctors provided care
and treatment to Carrizales and her daughter during the course
of Carrizales’ hospital stay.
At issue in this appeal is the district court’s disposition of
Carrizales’ claims against Creighton University and the doc-
tors. Carrizales filed a motion for default judgment against
Creighton University, alleging that it had failed to respond to the
complaint. The district court concluded, however, that because
Carrizales failed to serve Creighton University within the dead-
line provided at the time in Neb. Rev. Stat. § 25-217 (Reissue
2016), Creighton University was dismissed by operation of
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law. The district court granted summary judgment in favor of
the doctors after entering an order striking Carrizales’ expert
witness. The district court also denied Carrizales’ motion to
alter or amend. Additional background regarding these issues
is provided in the analysis section below.
II. ASSIGNMENTS OF ERROR
Carrizales assigns, condensed and restated, that the dis-
trict court erred (1) in finding that Creighton University was
dismissed by operation of law under § 25-217, (2) in failing
to grant her motion for default judgment against Creighton
University, (3) in striking her expert witness, (4) in granting
the doctors’ motion for summary judgment, and (5) in denying
her motion to alter or amend.
III. ANALYSIS
1. Dismissal of Creighton University
(a) Background
As noted above, Carrizales filed her lawsuit on October 30,
2013. On October 31, Carrizales filed a praecipe for a sum-
mons to be served on Creighton University, in care of its reg-
istered agent, James S. Jansen, by certified mail. The clerk of
the district court issued the summons the same day consistent
with the instructions of the praecipe. The summons was No.
226226. There is no dispute that Carrizales did not immedi-
ately serve this summons.
Months later, on April 16, 2014, Carrizales filed a sec-
ond praecipe to issue a summons. Like the October 2013
praecipe, it requested a summons to be served on Creighton
University, in care of its registered agent, Jansen, by certified
mail. Later the same day, the clerk of the court issued a sum-
mons. The summons, however, listed the party to be served as
Creighton University Medical Center. This second summons
was No. 255379.
Carrizales filed a service return in the district court on April
28, 2014. The service return listed the No. 226226 summons
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in the upper right-hand corner. It indicated that copies of the
summons were sent by certified mail to “Creighton University
Medical Center” care of “James S. Jansen, RA” on April 17.
An accompanying return receipt showed the certified mail was
received April 21.
Over 4 years later, in July 2018, Carrizales filed a motion
asking the district court to enter a default judgment against
Creighton University. It alleged that Creighton University had
been served with the summons, but had not responded to the
complaint. At the hearing on Carrizales’ motion for default
judgment, Creighton University argued that a default judgment
should not be entered against it, because it was not obligated to
respond to Carrizales’ complaint. Creighton University argued
that it was not obligated to respond because Carrizales either
served the wrong party or served the October 2013 summons
after it expired.
In support of the motion for default judgment, Carrizales
offered an affidavit signed by her counsel. That affidavit stated
that Carrizales “filed a Praecipe for issuance of Summons and
Complaint upon Creighton University” on April 14, 2014.
It also stated that “[w]ithin ten days of the issuance of the
Summons by the Clerk, [Carrizales] caused a Summons to
be issued and said Summons was served via certified mail
. . . . A copy of the Summons and Complaint are attached as
Exhibit 2.” The attached exhibit 2 was a copy of summons
No. 255379, dated April 16, 2014. The affidavit also stated
that “[s]ervice was accomplished upon Creighton University
by delivery of a Summons and Complaint upon its registered
agent . . . on or about April 21, 2014, as reflected in the return
of service, a copy of which is attached hereto as Exhibit 6.”
The attached exhibit 6 is a copy of the service return that was
filed with the district court, which lists No. 226226 in the
upper right-hand corner.
The district court entered a written order in December
2020, addressing Carrizales’ motion for default judgment. In
the order, the district court observed that the service return
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Cite as 312 Neb. 296
Carrizales filed listed the document number associated with
the summons issued in October 2013. The district court found
that the October 2013 summons was not delivered until April
2014 and was thus not sent within 10 days of issuance as
required by Neb. Rev. Stat. § 25-505.01(1)(c) (Reissue 2016).
Based on this determination, the district court concluded
that Carrizales failed to serve Creighton University within 6
months of the filing of her lawsuit and that, under § 25-217,
the action against Creighton University was thus dismissed
without prejudice by operation of law.
(b) Standard of Review
[1] By finding that Carrizales’ claims against Creighton
University were dismissed by operation of law, the district
court concluded it lacked subject matter jurisdiction over those
claims. See, Stone Land & Livestock Co. v. HBE, 309 Neb.
970, 962 N.W.2d 903 (2021); Kovar v. Habrock, 261 Neb.
337, 622 N.W.2d 688 (2001). The question of jurisdiction is a
question of law, upon which an appellate court reaches a con-
clusion independent of the trial court; however, findings of the
lower court as to underlying factual disputes, if any, in regard
to the jurisdictional issue will be upheld unless they are clearly
erroneous. Walksalong v. Mackey, 250 Neb. 202, 549 N.W.2d
384 (1996).
(c) Analysis
Carrizales argues that rather than finding that Creighton
University was dismissed by operation of law, the district
court should have entered a default judgment against it. We
focus our attention on the district court’s determination that
Creighton University was dismissed by operation of law. If that
determination is correct, the district court obviously did not
err by declining to enter a default judgment against Creighton
University.
Carrizales makes both factual and legal arguments in con-
tending that the district court erred by finding that Creighton
University was dismissed by operation of law pursuant to
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§ 25-217. She argues that the district court erred by making
the factual finding that the summons that Carrizales served in
April 2014 was the summons that was issued in October 2013.
Alternatively, she argues that even if she served the summons
issued in October 2013 in April 2014, the district court erred
by finding as a matter of law that § 25-217 applied.
We will address Carrizales’ factual argument first. Carrizales
argues that her counsel’s affidavit established that the sum-
mons served in April 2014 was the summons issued earlier
that month and that there is no evidence to the contrary. We
disagree with Carrizales that her counsel’s affidavit conclu-
sively established that the summons served in April 2014 was
the summons issued that month. Carrizales’ counsel clearly
averred that he served “a Summons” in April 2014, but it is
not clear to us from the face of the affidavit that he was aver-
ring that he served the summons the clerk had issued earlier
that month. Furthermore, as noted above, Carrizales’ counsel
averred in the affidavit that service of “a Summons” was
accomplished in April 2014 “as reflected in the return of serv
ice.” The service return, however, listed the document number
corresponding to the summons issued in October 2013. We
also note that while counsel for Carrizales expressed a belief at
oral argument that the summons served in April 2014 was the
summons issued in April 2014, he also acknowledged “some
chance” that it was actually the summons issued in October
2013 that was served in April 2014. Given the evidence before
the district court, we do not find that its determination that
Carrizales served the summons issued in October 2013 was
clearly erroneous.
Having found no grounds to reverse the district court’s deci-
sion based on its factual determination, we turn to Carrizales’
legal argument. Here, Carrizales argues that even if the sum-
mons served on Creighton University was not served within
10 days of issuance as required by § 25-505.01(1)(c), she
nonetheless “served” Creighton University within the deadline
set by § 25-217. She also argues that if Creighton University
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had some objection to the summons or service of process,
it was obligated to file a motion under Neb. Ct. R. Pldg.
§ 6-1112(b)(4) or (5). By not filing such a motion, she argues,
Creighton University waived any objection to the service it
received.
At the time Carrizales filed her complaint, § 25-217 pro-
vided that an action “shall stand dismissed without prejudice
as to any defendant not served within six months from the
date the complaint was filed.” Carrizales’ argument requires
us to determine what a plaintiff must do in order for a defend
ant to be “served” for purposes of the version of § 25-217 in
effect at the time the complaint was filed in this case. On this
point, Carrizales suggested at oral argument that a defendant
is “served” for purposes of § 25-217 when it actually receives
a copy of the summons and complaint pursuant to a method
of service authorized by statute. In Carrizales’ view then,
Creighton University was “served” because service by certified
mail is authorized by statute and it actually received a copy of
the complaint with a summons, albeit an expired one. We are
not persuaded by this argument.
A similar question was at issue in State Farm Mut. Auto
Ins. Co. v. Allstate Ins. Co., 268 Neb. 439, 684 N.W.2d 14
(2004). There, we had to determine when service for pur-
poses of § 25-217 occurred in a situation in which a plaintiff
attempted to serve a defendant by publication. We consid-
ered § 25-217 in pari materia with Neb. Rev. Stat. § 25-519
(Reissue 2016), the statute directing how service by publica-
tion is to be accomplished, and concluded that the defendant
was not served under § 25-217 until the publication had been
printed in a newspaper in 3 successive weeks, as required by
§ 25-519.
In line with State Farm Mut. Auto Ins. Co., supra, we
believe it appropriate in this case to consider § 25-217 in pari
materia with § 25-505.01(1)(c). The latter statute directs how
service by certified mail is to be accomplished—by send-
ing the summons to the defendant by certified mail “within
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ten days of issuance.” Id. In this case, however, the district
court found that Carrizales failed to send a summons to
Creighton University within 10 days of its issuance, and, as we
have stated, that finding was not clearly erroneous. Because
Carrizales failed to follow the statute that directs how certi-
fied mail service is to be accomplished, we find that Creighton
University was not served for purposes of § 25-217.
[2,3] We likewise find no merit to Carrizales’ argument
that without a motion from Creighton University under
§ 6-1112(b)(4) or (5) of the rules of pleading, the district court
could not find that the claim against Creighton University was
dismissed by operation of law pursuant to § 25-217. As we
have explained on many occasions, § 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 defend
ant who is named in the action and not served with process
within the time set forth in the statute. See Davis v. Choctaw
Constr., 280 Neb. 714, 789 N.W.2d 698 (2010). After dismissal
of an action by operation of law under § 25-217, there is no
longer an action pending and the district court has no jurisdic-
tion to make any further orders except to formalize the dis-
missal. Davis, supra. That is what the district court did here
with respect to Creighton University, and for reasons we have
explained, we find that was not erroneous.
2. Striking of Expert Witness
(a) Background
In September 2017, after this case had been pending for
nearly 4 years, the doctors filed a motion requesting that
the district court enter an order striking Dr. Fred Duboe as
an expert witness for Carrizales. In the motion to strike, the
doctors asserted that after Carrizales designated Duboe, a
physician based in Illinois, as an expert witness in August
2015, their counsel contacted counsel for Carrizales on several
occasions between March 2016 and August 2017. The motion
claimed that the doctors’ counsel asked that Carrizales’ counsel
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provide dates on which Duboe could be deposed, but that no
deposition was ever scheduled.
In response to the doctors’ September 2017 motion to strike,
the district court issued an order on February 22, 2018. The
order did not grant the motion to strike, but directed that
Carrizales “shall within 14 days from the date hereof find
and determine dates upon which [Duboe] can be available for
deposition, which dates must be reasonably agreeable to [the
doctors].” It also provided that “[s]aid deposition must be taken
and concluded within two months from the date hereof.” The
order expressly warned that if “said deposition is not com-
pleted within two months from the date hereof, the Court will
strike [Duboe] as an expert witness.”
On May 3, 2018, the doctors filed another motion to strike
Duboe as an expert witness, asserting that Duboe’s deposi-
tion had not been taken and dates had not been identified for
such a deposition. At the hearing on this motion to strike,
the doctors offered and the district court received copies
of correspondence exchanged by counsel for the doctors,
Carrizales, and Creighton University Medical Center after the
district court’s order on the initial motion to strike. The corre
spondence included a letter from counsel for the doctors dated
February 23, 2018, identifying several dates in March and
April on which he would not be available for a deposition; a
copy of an email dated March 8, 2018, from Carrizales’ counsel
in which he asked the other attorneys if they would be avail-
able on April 23 to 25 for a deposition of Duboe and advised
that there were limited days on which both he and counsel
for the doctors were available; an email dated March 9, 2018,
from Carrizales’ counsel stating that he was also available for
a deposition of Duboe on April 11; an email dated March 9,
2018, from counsel for the doctors saying that he would be
available on April 23 and 24, but not April 11; and an email
dated March 13, 2018, from counsel for Creighton University
Medical Center stating that she was available for a deposition
on April 23 and 24.
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The district court also received at the hearing an affidavit
from Carrizales’ counsel. In the affidavit, he stated that by the
time April 23 and 24, 2018, were identified as feasible dates
for defense counsel, Duboe advised counsel for Carrizales
that he was no longer available on those dates. Counsel for
Carrizales also stated in his affidavit that while the first motion
to strike, filed in September 2017, was pending, he sent an
email to defense counsel indicating that Duboe would be avail-
able for a deposition on October 10, but that counsel for the
doctors replied that he wanted to “wait and see what happens”
at the hearing on the motion to strike.
The district court entered an order granting the motion to
strike Duboe as an expert witness.
(b) Standard of Review
[4-6] Generally, the control of discovery is a matter for
judicial discretion, and decisions regarding discovery will be
upheld on appeal in the absence of an abuse of discretion.
Putnam v. Scherbring, 297 Neb. 868, 902 N.W.2d 140 (2017).
Similarly, appellate review of a district court’s use of inherent
power is for an abuse of discretion. Id. An abuse of discretion
occurs 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. Id.
(c) Analysis
Carrizales contends that the district court erred by striking
Duboe as an expert witness. She first argues that the district
court could not strike Duboe’s testimony because the doctors
never served a notice of deposition or subpoena upon him.
Alternatively, she argues that the district court’s order striking
Duboe was unduly harsh.
We begin by addressing Carrizales’ argument that the dis-
trict court could not strike Duboe’s testimony because the
doctors did not serve a notice of deposition or subpoena
upon him. In support of this argument, Carrizales points to
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decisions in which courts have held that sanctions cannot
be imposed under provisions analogous to Neb. Ct. R. Disc.
§ 6-337 (Rule 37) for a deponent’s nonappearance at a deposi-
tion if the deponent was not compelled to appear by a proper
subpoena. See, e.g., Laws v. Louisville Ladder, Inc., 146 So.
3d 380 (Miss. App. 2014). We find those cases inapposite,
because, as we will explain, we disagree that the district
court order striking Duboe’s testimony was issued as a Rule
37 sanction.
[7] Rule 37 provides “a range of sanctions” that a court may
impose for specific violations of discovery rules. See John P.
Lenich, Nebraska Civil Procedure, § 28:2 at 1199 (2022). In
this case, Carrizales does not appear to have committed any
of those violations. But Rule 37 sanctions are not the only
tool trial courts have to manage discovery. Nebraska courts,
through their inherent judicial power, have the authority to do
all things necessary for the proper administration of justice.
Putnam, supra. We have recognized that this inherent power
authorizes trial courts to issue and enforce progression orders
related to discovery. See id. Indeed, we have noted that trial
courts are encouraged to issue and enforce such orders in order
to meet case progression standards adopted by this court and
that members of the bar are responsible for cooperating with
the judiciary in attempting to meet these standards. See id., cit-
ing Neb. Ct. R. § 6-101(B)(5) and (C) (rev. 2013).
We understand the district court’s February 22, 2018, order
to have been a type of progression order—it ordered deadlines
by which the parties were to identify dates for Duboe’s deposi-
tion and by which the deposition was to be completed. It also
specified that if the deposition was not completed by the dead-
line, Duboe would not be permitted to testify. We understand
the district court to have enforced that order when it issued its
subsequent order striking Duboe’s testimony.
The fact that the district court’s orders concerning Duboe’s
deposition were issued pursuant to its inherent power does
not shield them from all review. A trial court’s exercise of its
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inherent power is reviewed for an abuse of discretion. See
Putnam v. Scherbring, 297 Neb. 868, 902 N.W.2d 140 (2017).
We have emphasized, however, that this is “a fairly deferential
standard” and that a court abuses its discretion “when its deci-
sion is based upon reasons that are untenable or unreasonable
or if its action is clearly against justice or conscience, reason,
and evidence.” Id. at 878, 902 N.W.2d at 146 (emphasis in
original). We have also recognized that a trial court has broad
discretion to make discovery and evidentiary rulings condu-
cive to the conduct of a fair trial. Id. We find that neither the
district court’s February 22, 2018, order nor its subsequent
order striking Duboe as an expert witness was an abuse of this
broad discretion.
By February 22, 2018, the lawsuit had been pending for
over 4 years and Carrizales’ expert witness had not yet been
deposed. Case progression standards adopted by this court
provide that 98 percent of civil jury cases are to be disposed of
within 18 months of filing. See § 6-101(A). It appears that the
district court could have and should have done more at earlier
stages in this case to expedite its completion. But even if the
district court’s initial case management efforts were wanting,
we do not believe that precluded the district court from even-
tually taking steps to hasten the resolution of a case that had
been pending for over twice as long as our case progression
standards state the vast majority of cases of this type should.
Specifically, we do not find it unreasonable that the district
court imposed a relatively short deadline by which the parties
were required to identify dates when Duboe could be deposed
and to complete the deposition. We reach this conclusion even
assuming Carrizales was not solely to blame for the fact that
Duboe had not yet been deposed or for the overall delay in
bringing this case to completion.
As for the district court’s order striking Duboe as an expert
witness, we cannot, under the circumstances, say that was an
abuse of discretion either. The district court’s February 22,
2018, order required Carrizales to, within 14 days from the
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date of the order, identify dates within the next 2 months in
which both Duboe and the defendants’ counsel were avail-
able for Duboe’s deposition to be taken. The evidence in our
record demonstrates that Carrizales did not comply with this
portion of the order. The evidence shows that the only dates
Carrizales’ counsel identified on which both he and defense
counsel would be available were April 23 and 24, 2018.
Setting aside the fact that April 23 and 24 were just outside
the district court’s 2-month deadline, counsel for Carrizales
stated in his affidavit that by the time both defense counsel
confirmed they would be available on those dates, counsel for
Carrizales learned Duboe was no longer available.
We would perhaps have a different case before us if, after
failing to identify dates in which Duboe and the necessary
lawyers were available for Duboe to be deposed, counsel for
Carrizales had promptly alerted the district court of the dif-
ficulty of complying with its order. There is nothing in our
record, however, showing that counsel for Carrizales did any-
thing to bring the issue to the attention of the district court
until the doctors filed a motion to strike in May 2018. By that
time, more than 2 months had passed and Duboe still had not
been deposed. Only then did the district court do what it said it
would do in its February 22, 2018, order and strike Duboe as
an expert witness.
Under these circumstances, we do not believe that the
district court’s decision to strike Duboe as an expert witness
was based on reasons that were untenable or unreasonable.
See Putnam v. Scherbring, 297 Neb. 868, 902 N.W.2d 140
(2017). Neither can we find that the district court’s action was
clearly against justice or conscience, reason, and evidence.
See id. Rather, it appears that the district court concluded that
Carrizales had not complied with its earlier order and had not
offered a compelling reason for noncompliance, and therefore,
it enforced the order in the manner it said that it would. We
find no abuse of discretion.
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3. Summary Judgment
(a) Factual Background
Shortly after the district court issued its order striking Duboe
as an expert witness, Creighton University Medical Center
and the doctors filed motions for summary judgment. Prior to
the hearing on the motion for summary judgment, Carrizales
voluntarily dismissed her case against Creighton University
Medical Center.
At the hearing on the doctors’ motion for summary judg-
ment, they offered, among other things, an affidavit of Gray.
Gray’s affidavit stated that she, Wulf, and Arms provided
medical care to Carrizales in connection with the birth of
Carrizales’ daughter; that Gray was familiar with the allega-
tions in Carrizales’ complaint; that she was familiar with the
standard of care required of physicians monitoring the labor of
patients and the delivery of children; and that based upon her
review of the medical records, her personal knowledge, and
her training, education, and experience, she, Wulf, and Arms
met the applicable standard of care in treating Carrizales and
Carrizales’ daughter.
Carrizales objected to the receipt of Gray’s affidavit, argu-
ing that the doctors failed to designate her as an expert witness
and that her testimony lacked foundation. In opposition to
the motion for summary judgment, Carrizales offered, among
other things, various discovery responses of the doctors, por-
tions of a deposition of Gray, portions of a deposition of a
midwife who provided care to Carrizales during the labor and
delivery, and an affidavit of Carrizales. Carrizales also offered
an affidavit of Duboe in which Duboe averred that the doctors
breached the standard of care during the labor and delivery
process. The district court sustained the doctors’ objection to
Duboe’s affidavit, referring to its earlier ruling striking Duboe
as an expert witness.
The district court issued an order granting the doctors’
motion for summary judgment. The district court concluded
that Gray’s affidavit could be considered for purposes of the
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doctors’ summary judgment motion and that it was sufficient
to make a prima facie case that each of the doctors met the
applicable standard of care. The district court then found that
Carrizales failed to create a genuine issue of material fact as to
whether the doctors met the standard of care. It explained that
in order to create a genuine issue of material fact as to whether
the doctors breached the standard of care, Carrizales was
required to provide expert testimony contradicting Gray’s testi-
mony that the doctors had met the standard of care. The district
court stated that it had stricken Duboe as an expert witness and
that Carrizales had failed to provide other expert testimony that
would create a genuine issue of material fact.
(b) Standard of Review
[8] 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.
Lassalle v. State, 307 Neb. 221, 948 N.W.2d 725 (2020).
[9] 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. Id.
(c) Analysis
Carrizales argues on appeal that the district court erred both
by finding that Gray’s affidavit established a prima facie case
that the doctors met the standard of care and by finding that
Carrizales failed to present evidence showing the existence of
a genuine issue of material fact. We address each of these argu-
ments below.
[10] At the summary judgment stage, it is well settled that
a physician’s self-supporting affidavit suffices to make a prima
facie case that the physician did not commit medical malprac-
tice. Lombardo v. Sedlacek, 299 Neb. 400, 908 N.W.2d 630
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(2018). Carrizales contends that because of certain discovery
responses provided by the doctors and certain testimony in
Gray’s deposition, however, the district court should not have
found that Gray’s affidavit made such a prima facie case here.
As we will explain, we disagree.
Carrizales first argues that the doctors should not have been
permitted to rely on Gray’s affidavit because they failed to
designate her as an expert witness. In support of this argu-
ment, Carrizales argues that if the doctors desired to rely on
an affidavit from Gray in support of their motion for summary
judgment, they were obligated to disclose their intention to
do so in discovery. Specifically, Carrizales argues that the
doctors did not disclose their intention to rely on Gray as an
expert in their expert witness designation, in response to vari-
ous requests for production of documents, and in response to
interrogatories.
We are not persuaded that the doctors were required to dis-
close an intention to rely on Gray for purposes of summary
judgment. The interrogatories Carrizales relies on sought the
identity of persons the doctors expected or intended to call
“at the trial.” The doctors’ expert witness designation likewise
identified those experts “who will be called to testify on behalf
of [the doctors] at a trial of this case.” The doctors did not
seek to call Gray as a witness at trial; they offered her affidavit
in support of their motion for summary judgment. As for the
doctors’ responses to Carrizales’ requests for production, the
requests for production at issue sought reports of or commu-
nications with experts the doctors either “retained” or “com-
missioned.” Carrizales has not directed us to anything in our
record suggesting that Gray, a party to the case, was retained
or commissioned as an expert witness, and even assuming she
was, Carrizales has not shown that the doctors failed to pro-
duce documents responsive to these requests.
Carrizales also argues that even if Gray’s affidavit could
shift the burden to Carrizales as to the claim against Gray, it
could not do so with respect to the claims against the other
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doctors. On this point, however, Carrizales argues only that the
other doctors also did not identify Gray in response to inter-
rogatories seeking the identity of persons the other doctors
expected or intended to call at trial. As mentioned above, Gray
was not called as a witness at trial.
Carrizales next contends that Gray’s affidavit testimony
lacked adequate foundation. In support of this argument,
Carrizales relies primarily on portions of Gray’s deposition
testimony. Gray stated in that deposition that she lacked an
independent recollection of Carrizales’ labor apart from her
medical records. She also stated that she had not reviewed the
medical records of Carrizales’ daughter and did not have an
opinion as to whether Carrizales’ daughter suffered an injury
on the day she was born. Counsel for the doctors also stated
during the deposition that Gray would not be expressing an
opinion as to what caused Carrizales’ daughter’s current con-
dition. Carrizales argues that these statements showed Gray
lacked adequate foundation to provide an opinion that she and
the other doctors met the standard of care. We disagree.
[11] A court should not admit expert testimony if it appears
the witness does not possess facts that will enable him or her
to express an accurate conclusion, as distinguished from a mere
guess or conjecture. Orchard Hill Neighborhood v. Orchard
Hill Mercantile, 274 Neb. 154, 738 N.W.2d 820 (2007). Gray
may have needed to rely on medical records to assess the care
provided by the doctors, and she may not have formed opinions
as to whether Carrizales’ daughter was injured or the causation
thereof, but we do not believe any of this would preclude her
from offering an accurate conclusion as to whether the doctors
met the standard of care.
Finally, Carrizales contends that the district court should not
have granted summary judgment to the doctors because she
offered evidence that created a genuine issue of material fact.
Gray’s affidavit shifted the burden to Carrizales to produce
admissible evidence that would create a genuine issue of mate-
rial fact as to whether the doctors complied with the standard
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of care. See Lombardo v. Sedlacek, 299 Neb. 400, 908 N.W.2d
630 (2018). Generally, expert testimony from a medical profes-
sional is required to establish the standard of care in a medical
malpractice action. See id. The only expert opinion Carrizales
offered that contradicted Gray’s standard of care opinion was
expressed by Duboe. As we have already concluded, however,
the district court acted within its discretion when it precluded
Carrizales from relying on Duboe as an expert.
There is an exception to the general rule requiring expert
testimony as to the medical standard of care. Under the com-
mon knowledge exception, expert testimony is not required
where a layperson with common knowledge can infer neg-
ligence. See, e.g., Green v. Box Butte General Hosp., 284
Neb. 243, 818 N.W.2d 589 (2012). Although Carrizales does
not rely expressly on this exception, she claims that other
evidence in the summary judgment record besides Duboe’s
affidavit created a genuine issue of material fact. She points
to statements in her own affidavit that she was told during
her labor she would undergo a cesarean section but that the
procedure was never performed. She also directs us to depo-
sition testimony of a midwife involved in Carrizales’ labor
and delivery who disagreed with Gray’s deposition testimony
that Gray was merely a consulting physician. The midwife
testified to her belief that Gray was supervising the midwife.
None of this evidence, however, can create a genuine issue
of material fact as to whether the doctors complied with the
standard of care. There is no expert testimony contradicting
Gray’s opinion that the doctors met the standard of care, and
we do not believe a layperson could infer negligence under
these circumstances.
We find no merit to Carrizales’ arguments that the district
court erred by granting summary judgment to the doctors.
4. Motion to Alter or Amend
Carrizales also argues that the district court erred by deny-
ing her motion to alter or amend. In support of her contention
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that the district court should have granted her motion to alter
or amend, Carrizales merely repeats the arguments we have
already rejected above. We find no error in the district court’s
denial of the motion to alter or amend.
IV. CONCLUSION
Because we find no error on the part of the district court,
we affirm.
Affirmed. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482826/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/10/2022 08:06 AM CST
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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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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.
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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.
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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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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).
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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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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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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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(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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DIETZEL ENTERS. V. J. A. WEVER CONSTR.
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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DIETZEL ENTERS. V. J. A. WEVER CONSTR.
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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DIETZEL ENTERS. V. J. A. WEVER CONSTR.
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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DIETZEL ENTERS. V. J. A. WEVER CONSTR.
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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DIETZEL ENTERS. V. J. A. WEVER CONSTR.
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 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482828/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/10/2022 08:06 AM CST
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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.
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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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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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DUTCHER V. NEBRASKA DEPT. OF CORR. SERVS.
Cite as 312 Neb. 405
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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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 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482829/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/10/2022 08:06 AM CST
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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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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
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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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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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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 | 11-10-2022 |
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11/10/2022 08:06 AM CST
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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
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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Nebraska Supreme Court Advance Sheets
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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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
Cite as 312 Neb. 341
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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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
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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Nebraska Supreme Court Advance Sheets
312 Nebraska Reports
MID AMERICA AGRI PRODS. v. PERKINS CTY. BD. OF EQUAL.
Cite as 312 Neb. 341
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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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,
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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
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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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 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482837/ | [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Blanton, Slip Opinion No. 2022-Ohio-3985.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2022-OHIO-3985
THE STATE OF OHIO, APPELLEE, v. BLANTON, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Blanton, Slip Opinion No. 2022-Ohio-3985.]
Criminal law—R.C. 2953.21—Postconviction-relief petitions—Ineffective
assistance of counsel—Res judicata—Postconviction claims alleging a
denial of the constitutional right to effective assistance of counsel are not
barred by res judicata if the claims cannot be meaningfully reviewed
without resorting to evidence outside the trial record—Court of appeals’
judgment affirmed.
(No. 2021-0172—Submitted March 8, 2022—Decided November 10, 2022.)
APPEAL from the Court of Appeals for Adams County,
Nos. 19CA1096 and 19CA1097, 2020-Ohio-7018.
__________________
DEWINE, J.
{¶ 1} What if you have been convicted of a crime and believe the reason
you were convicted is that your trial attorney did a lousy job? When can you
SUPREME COURT OF OHIO
challenge that conviction on the basis of the attorney’s performance? When must
you do it on direct appeal—and when may you do it in a petition for postconviction
relief? This case is about those rules.
{¶ 2} The doctrine of res judicata bars someone from raising a claim that
could have been raised and litigated in a prior proceeding. State v. Perry, 10 Ohio
St.2d 175, 180, 226 N.E.2d 104 (1967). So a court reviewing a postconviction-
relief petition generally may not decide a claim that could have been presented at
trial and raised on direct appeal. Id. at 180. There’s a twist when it comes to claims
of ineffective assistance of counsel. We have held that res judicata does not bar a
postconviction ineffective-assistance-of-counsel claim when either (1) the
petitioner had the same attorney at trial and on appeal or (2) he must rely on
evidence outside the trial record to establish his claim for relief. State v. Cole, 2
Ohio St.3d 112, 113-114, 443 N.E.2d 169 (1982). The converse is that when the
petitioner had a new attorney on appeal and the claim could have been litigated
based on the trial record, res judicata applies and the postconviction claim is barred.
Id.
{¶ 3} Denny Blanton, the postconviction petitioner in this case, asks us to
change our rules. He would like for us to say that res judicata never applies to
postconviction ineffective-assistance-of-counsel claims. In this view, one could
always raise a postconviction claim of ineffective assistance of counsel even when
the claim could have been raised and addressed on direct appeal. We conclude that
it is best to stick with our existing rules.
{¶ 4} Applying these rules, we go through each of Blanton’s postconviction
claims. We determine that he is not entitled to a hearing on any of them. The court
of appeals analyzed some of the claims differently than we do, but it ultimately
reached the same result. So we affirm its judgment.
2
January Term, 2022
I. BLANTON’S TRIALS
A. The rape case
{¶ 5} When he was a senior in high school, Blanton, who was 18 years old
at the time, was accused of kidnapping and raping J.S., a 15-year-old freshman girl.
The matter proceeded to a jury trial in the Adams County Court of Common Pleas,
at which the following evidence was presented.
{¶ 6} J.S. ran track and cross-country for her high school. By her account,
she was covering her usual training route on a country road one February afternoon
when Blanton pulled over in his pickup truck and asked her for directions. He got
out of his truck, ostensibly to show her a map. But after approaching J.S., he shoved
her to the ground, punched her in the face, and bound her arms with his belt. Then
he ordered her into the back seat of his truck and drove to a cemetery. Once there,
Blanton climbed into the back seat of the truck, where he forced J.S. to put her
mouth on his penis and then vaginally raped her.
{¶ 7} J.S. recounted that after the episode was over, she made conversation
with Blanton to keep him calm. He asked her if she had “enjoyed it?” Out of fear,
she said “yes.” Finally, Blanton dropped J.S. off on the side of the road and told
her not to tell anyone what had happened. He gave her a fist bump as she got out
of the truck.
{¶ 8} Blanton told a different story. He testified that J.S. had waved at him,
appearing to be “out of breath” and “in some type of distress.” He offered her a
ride, and she climbed into the back seat. J.S. then suggested that they pull over near
the cemetery and invited Blanton to join her in the back seat. When he got in the
back seat, she began rubbing his leg. He asked if she would give him a “blow job,”
and she did. Then she asked if he wanted to have sex, which led to a consensual
sexual encounter.
{¶ 9} Blanton said he had intended to drive J.S. home afterward. But on the
way, J.S. suggested they stop for doughnuts at a local bakery. Blanton refused,
3
SUPREME COURT OF OHIO
telling her that he had to meet his girlfriend. Blanton said that at that point, J.S.’s
“whole demeanor changed” and she told him to let her out on the side of the road.
{¶ 10} Blanton dropped J.S. off near a house. J.S. related that once he was
out of sight, she “took off sprinting” toward the bakery, which was about a third of
a mile away. But when she approached, the bakery looked to be closed, so she
decided to go to the house next door instead. J.S. spotted a girl bringing laundry
into the house and asked the girl if she could use the family’s outdoor phone. J.S.
called her mother to come get her and then waited for her at the end of the driveway,
next to the bakery sign.
{¶ 11} The girl said that when she first saw J.S., J.S. was sitting on some
red stones by the bakery sign, with her head down on her knees. J.S. eventually
walked up the drive, and the girl could see that she had been crying. After making
a call, J.S. went back to sit on the stone blocks at the end of the drive.
{¶ 12} J.S.’s mother took her to the emergency room at Adams County
Regional Medical Center, where she underwent a rape examination. J.S.’s hymen
was torn, and she was bleeding from her vagina. Her left cheek was red and
swollen, she had marks on her back and arms, and there was dirt on her legs. Two
days later, J.S. was interviewed by a social worker and examined by a physician at
the Mayerson Center at Cincinnati Children’s Hospital. Subsequent testing
revealed the presence of Blanton’s DNA in semen found on J.S.’s shorts. Testing
also showed that he could not be excluded as a contributor to seminal fluid found
on swabs taken from J.S.’s vaginal and anal cavities.
{¶ 13} Police questioned Blanton the day after the attack. He admitted that
he had given J.S. a ride but denied having had any physical contact with her.
Blanton claimed at trial that he had lied to the police about having sex with J.S.
because he didn’t want his girlfriend to find out he had cheated on her.
{¶ 14} The jury returned guilty verdicts on the rape and kidnapping charges.
Blanton appealed his convictions to the Fourth District Court of Appeals, which
4
January Term, 2022
affirmed. State v. Blanton, 4th Dist. Adams No. 16CA1031, 2018-Ohio-1275.
B. The jail case
{¶ 15} While he was being held in jail on the rape charges, Blanton and two
other inmates beat up Gary Lunsford, one of their cellmates. Lunsford told
authorities that after the attack, Blanton and the others prevented him from seeking
medical assistance for his injuries. Blanton was charged with felonious assault and
kidnapping for his role in the attack on Lunsford. The trial court conducted a
second jury trial on the charges stemming from Blanton’s conduct while in jail.
{¶ 16} Trial testimony revealed that Blanton and six other inmates in his
cell block had participated in a “fight club.” Blanton and two others, Devon
Michael and Zack McKee, organized the matches. In the two weeks leading up to
the attack on Lunsford, fights took place nearly every day. Lunsford, in his telling,
was reluctant to participate; but Blanton, Michael, and McKee told him that if he
didn’t, they would make him fight all three of them at once. Lunsford said the three
would often “congregate together” and that he “knew something was going to
happen, [but not] to who or what.”
{¶ 17} One afternoon, Lunsford and another inmate wrestled while Blanton
refereed. After they took a break, McKee walked up and “sucker punched”
Lunsford. Michael joined in, and he and McKee forced Lunsford to the floor,
taking turns kicking and punching him in his head and body. Once Michael and
McKee had finished with him, Blanton walked over and punched Lunsford some
15 times in the head as he lay on the floor. A video of the attack shows that
Lunsford was not moving much, if at all, during Blanton’s initial attack.
{¶ 18} After some time, Lunsford tried to get up. Blanton quickly ran over
and delivered swift blows to Lunsford’s head. Then Blanton backed Lunsford up
against the wall and began pummeling him with his fists. Lunsford stumbled away
and fell to the floor, motionless. Michael and McKee joined back in and stomped
on Lunsford a few more times. The three attackers circled Lunsford as he lay on
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the ground. Each time Lunsford tried to stand, they knocked him back down. This
went on until Lunsford finally collapsed onto one of the bunks.
{¶ 19} Lunsford said he did not remember much of the assault, because he
had been “knocked unconscious” and was “incapacitated.” Another cellmate
recounted: “I seen he was wrapped up in a ball with his hands over his face and
then he was kicked in the back of his head and then his arms went limp. He was
out for a few seconds and then he come back to.”
{¶ 20} Lunsford maintained that he did not immediately tell jail personnel
that he had been hurt because he “wasn’t permitted to” by his three attackers. He
stayed in his bunk, and he covered his head with a blanket whenever a guard walked
by. A fellow inmate brought him his food when the cafeteria trays were delivered.
Lunsford’s trio of attackers threatened that he would “get the same treatment again
if [he] tried to hit the call box.”
{¶ 21} After a couple days of this, a corrections officer told Lunsford to get
out of his bunk and pick up his tray at the cell’s door. She saw that he had been
beaten up and took him out of the cell. Lunsford had significant visible injuries:
two black eyes; a busted lip; bruising on his face, neck, stomach, and back; and a
gash on his head. He was taken to the hospital, where an emergency-room doctor
concluded that he had sustained a concussion.
{¶ 22} Blanton did not testify in his defense. A jury found him guilty of
felonious assault and kidnapping for his attack on Lunsford. Blanton appealed
those convictions, and the Fourth District affirmed. See State v. Blanton, 2018-
Ohio-1278, 110 N.E.3d 1 (4th Dist.).
II. POSTCONVICTION PROCEEDINGS UNDER OHIO LAW
{¶ 23} Blanton subsequently filed petitions for postconviction relief,
challenging his convictions in both the rape case and the jail case. Before we get
to his claims, we provide an overview of Ohio’s postconviction-review process.
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A. The postconviction-relief statute
{¶ 24} Ohio law permits a person convicted of a crime to petition the trial
court for an order setting aside his conviction on the basis that “there was such a
denial or infringement of the person’s rights as to render the judgment void or
voidable under the Ohio Constitution or the Constitution of the United States.”
R.C. 2953.21(A)(1)(a)(i). Before a trial court may grant a hearing on a petition, it
must evaluate the petition in the context of the entire record in the case to determine
whether the petition alleges “substantive grounds for relief.” R.C. 2953.21(D). A
petition presents substantive grounds for relief when it contains allegations that are
sufficient to state a constitutional claim and the files and records of the case do not
affirmatively disprove the claim. State v. Milanovich, 42 Ohio St.2d 46, 50, 325
N.E.2d 540 (1975); R.C. 2953.21(F). If the trial court dismisses a petition on the
basis that it fails to allege substantive grounds for relief, the court must include
findings of fact and conclusions of law explaining the reasons for that decision.
R.C. 2953.21(D).
B. Application of res judicata in postconviction-relief proceedings
{¶ 25} Under the doctrine of res judicata, “a final judgment of conviction
bars the convicted defendant from raising and litigating in any proceeding, except
an appeal from that judgment, any [claim] that was raised or could have been raised
by the defendant at the trial which resulted in that judgment of conviction or on an
appeal from that judgment.” Perry, 10 Ohio St.2d at 180, 226 N.E.2d 104. Perry
was one of the first cases in which this court construed Ohio’s postconviction-relief
statutes. The question was whether res judicata applied to claims for postconviction
relief. See id. at 178-180. In other words, could a petitioner use the postconviction-
relief process to relitigate claims that could have been or already were decided in
the petitioner’s direct appeal?
{¶ 26} We said no. We noted that the postconviction-relief statute had
caused some confusion because it referred to convictions that were “void or
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voidable” as a result of a constitutional violation. Id. at 178-179. But we explained
that while the term “voidable” often refers to a conviction that can be vacated on
direct appeal, it could also be used to refer to a conviction that can be set aside after
it becomes final following a direct appeal. Id. at 179-180. We thus rejected the
notion that the postconviction statute allowed relitigation of claims that could have
been raised at trial or on direct appeal. Such a reading, we explained, “would be
wholly inconsistent with the doctrine of res judicata.” Id. at 179. And because
there was nothing else in the statute—beyond the use of the word “voidable”—
evincing an intent by the General Assembly to abolish the doctrine of res judicata
in collateral postconviction proceedings, we concluded that the doctrine still
applied. Id.
{¶ 27} As an example of a conviction that was voidable on collateral
review, this court pointed to the conviction at issue in McMullen v. Maxwell, 3 Ohio
St.2d 160, 209 N.E.2d 449 (1965). Perry at 179-180. Maxwell involved a claim
that the prosecution had failed to turn over exculpatory evidence during the
defendant’s trial. Id. at 165. Because the defendant did not learn of the alleged
constitutional violation until after he had been convicted, he could not have raised
the issue at trial and, in turn, the error could not have been reviewed in a direct
appeal. In Perry, we noted that in such a scenario, the claim “could not reasonably
be said to have been either waived by the prisoner or adjudicated against the
prisoner” in the prior proceedings. Id. at 179. The Perry court therefore held that
res judicata bars a petitioner from raising a claim in a petition for postconviction
relief unless he can show that the claim “could not have been fully adjudicated by
the judgment of conviction and an appeal therefrom.” Id. at 182.
{¶ 28} Adhering to that rule, this court later explained that “[i]f the trial
court finds, on the facts of a case, that a petitioner’s claim was fully litigated at trial
or upon appeal, or that the claim could have been fully litigated in an appeal, the
court can summarily dismiss the claim as barred by res judicata.” State v. Lester,
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January Term, 2022
41 Ohio St.2d 51, 55, 322 N.E.2d 656 (1975). The trial court must issue findings
of fact and conclusions of law specifying “the portions of the files and records
which establish the bar of res judicata.” Id.
C. Postconviction review of ineffective-assistance-of-counsel claims in Ohio
{¶ 29} Postconviction-relief petitions raising claims of ineffective
assistance of counsel pose unique challenges. Because criminal defendants rely on
their trial counsel to develop the trial record, it is often the case that counsel’s
failures in representation are not preserved in the record. In addition, when a
defendant is represented by his trial counsel on appeal, counsel may be reluctant or
unable to point out on appeal his own deficiencies at trial. We have thus refined
our doctrine in the context of postconviction claims of ineffective assistance of
counsel.
{¶ 30} Our seminal case on this issue is Cole, 2 Ohio St.3d 112, 443 N.E.2d
169. There, we reiterated the general rule that res judicata bars a claim that “ ‘was
raised or could have been raised’ ” during trial or on appeal from the judgment of
conviction. (Emphasis added in Cole.) Id. at 113, quoting Perry, 10 Ohio St.2d
175, 226 N.E.2d 104, at paragraph nine of the syllabus. But at the same time, we
acknowledged that special considerations apply with respect to postconviction
ineffective-assistance-of-counsel claims that “ ‘depend[] upon factual allegations
that cannot be determined by examination of the files and records of the case.’ ”
Id. at 113, fn. 1, quoting Milanovich, 42 Ohio St.2d 46, 325 N.E.2d 540, at
paragraph one of the syllabus. Thus, we set forth the following rule: “Where [a]
defendant, represented by new counsel upon direct appeal, fails to raise therein the
issue of competent trial counsel and said issue could fairly have been determined
without resort to evidence dehors the record, res judicata is a proper basis for
dismissing [the] defendant’s petition for postconviction relief.” Id. at syllabus.
{¶ 31} In Cole, we explained that “[g]enerally, the introduction in an R.C.
2953.21 petition of evidence dehors the record of ineffective assistance of counsel
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is sufficient, if not to mandate a hearing, at least to avoid dismissal on the basis of
res judicata.” Id. at 114. The court in Cole also made clear that simply overcoming
the res judicata bar through the introduction of evidence outside the record is not
sufficient to entitle the petitioner to a hearing. Rather, to secure a hearing, a
petitioner “must proffer evidence which, if believed, would establish not only that
his trial counsel had substantially violated at least one of a defense attorney’s
essential duties to his client but also that said violation was prejudicial to the
[petitioner].” Id.
{¶ 32} In Cole, this court discounted the evidence presented, noting that
“the allegations outside the record upon which appellant relies appear so contrived,
when measured against the overwhelming evidence in the record of trial counsel’s
competence, as to constitute no credible evidence and, thus, to justify the trial
court’s application of the principles of res judicata.” Id. While the Cole court
couched its holding in terms of “justify[ing]” the lower’s court’s use of res judicata,
id., a better understanding of the holding in Cole is simply that the evidence in that
case did not present a substantive claim for relief.
{¶ 33} Thus, in cases such as this, Cole mandates a two-part inquiry to
determine whether a petitioner who brings forth evidence outside the record of
ineffective assistance of counsel is entitled to a hearing. Has the petitioner
introduced competent evidence of ineffective assistance that was not included in
the trial record? And if so, does that evidence present substantive grounds for relief;
that is, if believed, would the newly presented evidence—together with any
evidence in the trial record—establish that counsel was ineffective?
{¶ 34} It sometimes happens that courts conflate these two inquiries and
hold that a claim that relies on evidence outside the trial record is barred by res
judicata because, even if believed, that evidence would not establish that counsel
was ineffective. Indeed, the courts below made this error in several instances. The
better practice is to treat these two inquiries as analytically distinct.
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III. WE ADHERE TO THE RULE IN COLE
{¶ 35} Blanton asks us to overrule Cole. He proposes that we replace it
with the rule used by the federal courts, which allows an ineffective-assistance
claim to be raised in a petition for postconviction relief even if it could have been
fairly adjudicated in a direct appeal. See Massaro v. United States, 538 U.S. 500,
123 S.Ct. 1690, 155 L.Ed.2d 714 (2003).
{¶ 36} In Massaro, the United States Supreme Court resolved a split in the
federal circuit courts and held that a petitioner’s claim that he had been denied
effective assistance of counsel could be brought in a collateral proceeding under 28
U.S.C. 2255—the federal postconviction-review statute—regardless of whether the
claim could have been resolved in a direct appeal. Massaro at 504-505. Although
the court concluded that an ineffective-assistance claim may still be brought on
direct appeal, it eliminated the requirement in federal courts that such a claim must
be brought on direct appeal when it can be fully addressed based on the trial record.
Id. at 508-509.
{¶ 37} The court reached its decision in Massaro after noting many of the
same concerns that this court has recognized in its own caselaw. For instance, the
Massaro court expressed concern that the trial record often will not contain the
information necessary to fairly review an ineffective-assistance claim on direct
appeal. See id. at 504-505. And the court recognized that even meritorious claims
could fail on direct appeal without adequate support in the trial record. Id. at 506.
Under its approach, the court explained, ineffective-assistance claims will most
often be litigated in a forum that allows the development of facts necessary to
support the claim. Id. at 505.
{¶ 38} We find these concerns to be adequately addressed under Ohio’s
current rule. The rule in Cole does not bar all ineffective-assistance claims that
were previously raised in a direct appeal. Rather, it permits petitioners who present
a claim of ineffective assistance and who demonstrate through evidence outside the
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trial record that their claim either was not or could not have been fairly adjudicated
in a direct appeal to have a second opportunity to litigate the claim.
{¶ 39} We acknowledge the Massaro court’s concerns that this approach
may lead to inefficiencies, in that courts reviewing postconviction claims will have
to conduct a res judicata analysis before reaching the merits of a claim, and some
claims will potentially be litigated twice. See Massaro, 538 U.S. at 506-507, 123
S.Ct. 1690, 155 L.Ed.2d 714. But the federal approach creates its own
inefficiencies by forcing trial courts to conduct additional proceedings (and
appellate courts to review additional appeals) to address claims that could have
been resolved as part of a direct appeal.
{¶ 40} In our view, the rule in Cole, 2 Ohio St.3d 112, 443 N.E.2d 169,
strikes a sensible balance. It promotes efficiency by requiring litigants to pursue
their claims at the first available opportunity. Some ineffective-assistance claims—
say, a claim based on counsel’s failure to object to obviously prejudicial evidence—
can fairly be resolved on appeal based on evidence entirely within the trial record.
It would make little sense to postpone the resolution of such claims until after
proceedings on a postconviction-relief petition.
{¶ 41} At the same time, the Cole rule protects the rights of petitioners by
allowing postconviction review of ineffective-assistance claims that truly depend
on evidence outside the trial record (for example, a claim regarding counsel’s
failure to present evidence). Indeed, under the current rule, claims that rely on
evidence outside the record may be heard on postconviction review even if similar
claims have been previously raised and adjudicated against the petitioner in his
direct appeal. See, e.g., State v. Smith, 17 Ohio St.3d 98, 101, 477 N.E.2d 1128
(1985), fn. 1 (rejecting an ineffective-assistance claim based on the limited record
available in the direct appeal but noting that res judicata would not bar the appellant
from presenting additional evidence in a subsequent postconviction proceeding).
{¶ 42} It is true that most states do not bar a postconviction ineffective-
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assistance claim even if the claim could have been decided in a direct appeal. See,
e.g., Commonwealth v. Grant, 572 Pa. 48, 67-68, 813 A.2d 726 (2002), abrogated
on other grounds by Commonwealth v. Bradley, 261 A.3d 381 (Pa.2021); State v.
Fraser, 2000 ND 53, 608 N.W.2d 244, ¶ 23; People v. Mendoza Tello, 15 Cal.4th
264, 266-267, 933 P.2d 1134 (1997); State v. Gonzalez, 205 Conn. 673, 683-684,
535 A.2d 345 (1987). Others, though, continue to apply res judicata to ineffective-
assistance claims that are capable of resolution in a direct appeal. See, e.g., State
v. Abdullah, 289 Neb. 123, 128-129, 853 N.W.2d 858 (2014); Robledo-Kinney v.
State, 637 N.W.2d 581, 585 (Minn.2002).
{¶ 43} Our general rule applying res judicata to postconviction-relief claims
is premised on this court’s long-time understanding that the language of Ohio’s
postconviction-relief statute does not displace common-law principles of res
judicata. See Perry, 10 Ohio St.2d at 179, 226 N.E.2d 104. And our application of
that rule to situations in which an ineffective-assistance claim can be fairly litigated
in a direct appeal preserves judicial resources while still protecting a petitioner’s
ability to present additional evidence in support of an ineffective-assistance claim
in a collateral proceeding. We therefore adhere to our precedent and decline the
invitation to overrule Cole.
IV. BLANTON’S POSTCONVICTION CLAIMS
{¶ 44} Having reaffirmed our traditional standard for determining whether
a postconviction ineffective-assistance-of-counsel claim is barred by res judicata,
we proceed to address Blanton’s postconviction claims. We recognize that courts
have sometimes struggled with the application of res judicata to postconviction
ineffective-assistance claims. And we acknowledge the concern expressed by some
of the amici curiae in this case that, in practice, the doctrine is often applied in an
overly expansive manner. It is our hope that our analysis of the claims in this case
will help guide courts in future cases.
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A. Postconviction proceedings in the rape case
{¶ 45} Blanton’s postconviction-relief petition in the rape case asserted that
his convictions should be vacated on the ground that he was denied his
constitutional right to effective assistance of counsel in violation of the Sixth and
Fourteenth Amendments to the United States Constitution.1 To establish
ineffective assistance, he must demonstrate that his counsel’s representation was
deficient and that he was prejudiced as a result. See Strickland v. Washington, 466
U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley,
42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus.
{¶ 46} Blanton’s petition alleged that his counsel performed deficiently in
the following respects: (1) by failing to present his defense of consent earlier in the
trial, (2) by failing to file an affidavit of disqualification against the trial-court
judge, (3) by not presenting expert testimony regarding the origin of mud on J.S.’s
shorts and the possibility that the injuries to J.S.’s genital region could have been
sustained during consensual sex, (4) by telling the jury that the defense planned to
call Blanton’s girlfriend as a witness and then failing to follow through, and (5) by
not moving for a change of venue. Additionally, he asserted that the cumulative
effect of these purported errors undermines confidence in the verdict and warrants
a new trial.
{¶ 47} To support his petition in the rape case, Blanton submitted affidavits
and other evidence outside the trial record. The trial court determined that all the
claims either were or could have been addressed in Blanton’s direct appeal. Thus,
the court concluded that res judicata applied to each claim and dismissed Blanton’s
petition without affording him an evidentiary hearing.
{¶ 48} Blanton appealed the trial court’s decision, and the Fourth District
affirmed. 2020-Ohio-7018.
1. Blanton’s petition did not argue a violation of his rights under the Ohio Constitution, so we have
no occasion to consider that document here.
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January Term, 2022
1. Counsel’s failure to raise consent at the outset
{¶ 49} Blanton’s first claim for postconviction relief in the rape case takes
aim at his counsel’s opening statement to the jury. He charges that his attorney was
ineffective because he did not tell the jury at the outset that Blanton had admitted
to having consensual sex with J.S. Instead, counsel simply told the jury that the
state had to prove all the elements of the crimes. This, Blanton asserts, gave the
jury the false impression that he changed his story after hearing the evidence against
him. And Blanton maintains that counsel’s attack-all-elements approach was
unreasonable because the only viable defense was one of consent.
{¶ 50} Part of what Blanton relies on to support this claim is evidence of an
outside-the-record conversation between him and his counsel. In his affidavit
supporting his petition, Blanton says that he told his counsel during their first
meeting that he had had consensual sex with J.S. and that he lied to police about
having sex with her because he did not want his girlfriend to find out. Blanton
claims he asked his counsel to notify the prosecutor and to arrange a second
interview so he could set the record straight, but that his counsel disagreed with that
course of action. Blanton’s petition also includes a copy of a text exchange between
his mother and one of his attorneys, in which the attorney remarked that “it was
probably about two weeks after” the incident that Blanton told him that the sex was
consensual.
{¶ 51} The Fourth District held that this claim was barred by res judicata,
noting that the trial court had pointed to evidence in the record through which the
argument could have been made and opining that it need not accept the assertions
in Blanton’s affidavit as true. 2020-Ohio-7018 at ¶ 21-22. The Fourth District was
incorrect in suggesting that the claim could have been litigated on direct appeal.
The evidence about what Blanton had told his counsel is not in the trial record, and
it was central to his claim: without it one could not know whether Blanton’s
attorneys were aware of what he intended to say prior to his taking the stand.
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{¶ 52} The problem, though, is that even if one accepts what Blanton said
in his affidavit as true, he failed to preserve his argument on the remaining merits
of his claim of ineffective assistance of counsel. The trial court found that on the
merits, Blanton’s claim did not overcome the presumption of reasonable
professional assistance. And it further concluded that Blanton’s allegations of
prejudice—particularly, his contention that the state might have investigated and
presented the case differently had his counsel informed the prosecutor of the
consent defense—were “speculative at best” and failed to show a reasonable
probability of a different outcome. In other words, the trial court found that the
evidence, “if believed,” did not establish a “violation [that] was prejudicial to the
defendant,” Cole, 2 Ohio St.3d at 114, 443 N.E.2d 169.
{¶ 53} The Fourth District affirmed this conclusion. 2020-Ohio-7018 at
¶ 21. In his memorandum in support of jurisdiction to this court, Blanton did not
set forth any proposition of law challenging the court of appeals’ judgment in this
regard. Thus, that portion of the court of appeals’ judgment is not before us. See
Estate of Ridley v. Hamilton Cty. Bd. of Mental Retardation & Dev. Disabilities,
102 Ohio St.3d 230, 2004-Ohio-2629, 809 N.E.2d 2, ¶ 27, citing In re Timken
Mercy Med. Ctr., 61 Ohio St.3d 81, 87, 572 N.E.2d 673 (1991). Accordingly, we
affirm the judgment of the court of appeals with respect to this claim.
2. Counsel’s failure to present expert testimony
{¶ 54} Blanton’s postconviction-relief petition also asserts that his trial
counsel provided ineffective assistance by failing to call expert witnesses. He says
his counsel should have called experts to testify on two matters: (1) the origin of
mud found on the shorts worn by J.S. during the encounter and (2) the nature of the
injuries to J.S.’s genitals.
a. Expert testimony regarding mud on J.S.’s shorts
{¶ 55} J.S. had recounted that Blanton pushed her to the ground before
abducting her. One of the photographs taken by a sexual-assault nurse examiner at
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the hospital depicted dirt on J.S.’s lower legs. Further, the shirt and shorts that J.S.
wore during the encounter had dirt stains on them.
{¶ 56} Before trial, Blanton’s attorneys sought independent testing of J.S.’s
shorts. They hoped to rebut her statement that she had been pushed to the ground
and show instead that she had simply been splattered with mud while running. An
expert in microscopy examined the shorts and provided a report to Blanton’s
counsel. The report concluded that some of the mud stains appeared to have straight
edges. The expert therefore opined—contrary to what the defense had hoped—that
those stains were impressions from “contact with the surface of a muddy object”
and not “mud splashes.” Blanton’s counsel did not present any evidence or
testimony regarding the report at trial.
{¶ 57} In his postconviction-relief petition, Blanton asserts that his counsel
was ineffective for not calling the microscopy expert to testify about those findings.
Blanton’s argument is based on a new theory about the import of the stains. He
points out that in J.S.’s account of being pushed to the ground, she never mentioned
having hit a hard object. Rather, Blanton contends, the expert’s conclusions align
with the account of the girl who let J.S. use her family’s phone, who said that J.S.
had sat on some stone blocks by the sign at the end of the driveway prior to
approaching the house. During her trial testimony, J.S. was not asked about and
did not mention sitting on the stones (though she did say she waited for her mother
by the sign after calling her). In light of this supposed omission, Blanton asserts
that the microscopy evidence would have undermined J.S.’s credibility.
{¶ 58} The Fourth District held that this claim was raised in Blanton’s direct
appeal and was therefore barred by res judicata. 2020-Ohio-7018 at ¶ 27. This was
incorrect: the claim wasn’t raised in the direct appeal. See Blanton, 2018-Ohio-
1275. But even if it had been, that would not necessarily determine the matter. The
question is whether the claim could have been fully addressed in the direct appeal
or whether its adjudication required evidence outside the trial record. See Cole, 2
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Ohio St.3d 112, 443 N.E.2d 169, at syllabus.
{¶ 59} The state contends that dismissal on res judicata grounds was proper
because the expert report was known to Blanton at the time of his direct appeal.
The state points to appellate caselaw stating that res judicata bars a postconviction
claim when the claim is based on evidence that was available to the defense at the
time of trial. See, e.g., State v. Adams, 11th Dist. Trumbull No. 2003-T-0064, 2005-
Ohio-348, ¶ 39 (“For a defendant to avoid dismissal of the petition by res judicata,
the evidence supporting the claims in the petition must be competent, relevant, and
material evidence outside the trial court’s record, and it must not be evidence that
existed or was available for use at the time of trial” [emphasis added]); but see id.
at ¶ 65 (res judicata did not bar an ineffective-assistance claim based on outside-
the-record evidence that was known to the defense at the time of trial).
{¶ 60} The language on which the state relies sets forth the general rule of
res judicata. But that is not the rule we apply to postconviction claims alleging
ineffective assistance of trial counsel. There is no requirement that to overcome a
res judicata bar, the evidence on which such a claim is based must have been
unknown or unavailable to the defense at trial. Indeed, the very premise of this sort
of ineffective-assistance claim is that counsel erred by failing to present exculpatory
evidence that was available to him. When the trial record does not demonstrate the
existence of such evidence, a defendant would not have been able to raise such a
claim on direct appeal. Accordingly, such a claim may properly be brought in a
postconviction-relief petition.
{¶ 61} The Fourth District erred in holding that this ineffective-assistance
claim was barred by res judicata. But again, we are unable to reverse its judgment,
because both of the lower courts concluded that the evidence did not establish that
Blanton was prejudiced. The trial court observed that the expert’s conclusion that
the shorts had come into contact with a muddy object did not necessarily contradict
the state’s theory that Blanton had pushed J.S. to the ground. It therefore
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January Term, 2022
determined that counsel’s decision not to present the expert—whose testimony was
of limited relevance at best—was reasonable trial strategy. In other words, even if
believed, the evidence still does not present a substantive ground for relief. See
Cole, 2 Ohio St.3d at 114, 443 N.E.2d 169. And the court of appeals affirmed the
trial court’s conclusions on that point. 2020-Ohio-7018 at ¶ 27. Blanton has not
appealed that portion of the court of appeals’ judgment, so we have no occasion to
revisit it. See Estate of Ridley, 102 Ohio St.3d 230, 2004-Ohio-2629, 809 N.E.2d
2, at ¶ 27.
b. Expert testimony regarding J.S.’s injuries
{¶ 62} A physician examined J.S. at the Mayerson Center two days after the
attack. According to the doctor, J.S.’s hymen was bruised. She also had an abrasion
on a portion of her vaginal wall, which meant that a layer of the vaginal tissue was
missing. In addition, J.S. was still bleeding at the time of her examination. The
duration of J.S.’s bleeding, along with the “pain in her genital area and then
extensive bruising and other injury to her genital tissues,” does not typically occur
in a consensual sexual encounter, testified the doctor.
{¶ 63} Blanton contends that his attorneys were ineffective because they did
not counter J.S.’s physician’s testimony by putting on an expert who would say that
J.S.’s injuries were consistent with consensual sex. Blanton has averred that his
attorneys did not even discuss the possibility of retaining an expert to review J.S.’s
medical records for this purpose.
{¶ 64} Blanton supported his petition with the affidavit of Dr. Fred
Mushkat, an emergency-medicine doctor and American College of Emergency
Physicians Fellow. Dr. Mushkat cited medical research concluding that the reliance
on genital injuries as an indicator of forced sexual relations is “very much
disputed.” Attached to Dr. Mushkat’s affidavit was a copy of a medical journal
article reviewing literature on the topic. The article concluded: “This review of
adult female genital injury following consensual and nonconsensual intercourse
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identified that genital injuries occur in both subject categories. No consensus exists
regarding the number of injuries or injury type (e.g., redness, swelling, ecchymoses,
and bruising) that would allow a clinician to determine consent during intercourse.”
Anderson & Sheridan, Female Genital Injury Following Consensual and
Nonconsensual Sex: State of the Science, 38 J. Emergency Nursing 518, 521 (2012).
{¶ 65} Blanton asserted a similar claim in his direct appeal. There, he
contended that his trial attorneys had been deficient by failing to either cross-
examine the Mayerson Center physician about medical research suggesting that the
types of injuries sustained by J.S. can occur during consensual sex or rebut her
conclusions using a defense expert. Blanton, 2018-Ohio-1275, at ¶ 66. Although
the research on which Blanton relied was not in the trial record, the Fourth District
noted that counsel’s decisions regarding cross-examination and whether to call an
expert witness generally fall within the realm of trial strategy and speculated that
Blanton was not prejudiced by his counsel’s alleged failure. Id. at ¶ 67-69.
{¶ 66} In the postconviction proceedings, both the trial court and the court
of appeals concluded that because Blanton had raised this claim in his direct appeal,
it was barred by res judicata. 2020-Ohio-7018 at ¶ 27. Neither court addressed the
fact that Blanton’s ineffective-assistance claim is based on evidence outside the
trial record. Because the research on which Blanton relies was not contained in the
trial record, the merits of this claim could not have been fully considered in his
direct appeal. Indeed, when a claim of ineffective assistance is based on counsel’s
failure to present evidence during the trial-court proceedings, and that evidence is
not proffered or otherwise contained in the trial record, it is almost invariably the
type of claim that cannot be meaningfully adjudicated in a direct appeal.
{¶ 67} We therefore conclude that Blanton’s claim regarding his counsel’s
failure to present evidence concerning the lack of correlation between female
genital injuries and nonconsensual sex was based on evidence—Dr. Mushkat’s
affidavit and the attached medical journal article—that was not included in the trial
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record and could not be meaningfully reviewed in his direct appeal. See Smith, 17
Ohio St.3d at 101, 477 N.E.2d 1128, fn. 1 (if the evidence in the trial record is
insufficient to establish an ineffective-assistance claim, the denial of that claim in
a direct appeal does not prevent a petitioner from supporting the claim with outside-
the-record evidence in a postconviction proceeding). Thus, the court of appeals
erred in concluding that Blanton could not raise the issue in his postconviction-
relief petition because he had already raised it in his direct appeal.
{¶ 68} Nonetheless, we still must address the prejudice question. That is,
would the evidence proffered in the petition, “if believed,” establish a “violation
[that] was prejudicial” to Blanton? Cole, 2 Ohio St.3d at 114, 443 N.E.2d 169. We
conclude that it would not.
{¶ 69} The article that Blanton submitted with Dr. Mushkat’s affidavit
asserted that as of 2012, there was no consensus regarding whether evidence of
female genital trauma could support a finding of forced sexual conduct. See
Anderson & Sheridan, 38 J. Emergency Nursing at 521. But Blanton did not
provide any expert opinion or conclusions about J.S.’s injuries. Dr. Mushkat
opined only that Blanton “did not have the benefit of a child abuse expert to discuss
whether the findings in regard to the examination of J.S. were consistent with a
consensual sexual event or a sexual assault; or whether any opinion could even be
rendered on this question without making credibility assessments of the history
given by the patient and by the accused.” We can only speculate as to what such
an expert’s conclusions would have been. Blanton has thus failed to set forth facts
sufficient to demonstrate that his counsel performed deficiently or that there is a
reasonable probability that the result of the trial would have been different if the
jury had heard this evidence.
3. Counsel’s decisions regarding calling Blanton’s girlfriend as a witness
{¶ 70} During the defense’s case-in-chief, Blanton’s counsel called
Blanton’s high school girlfriend to the stand. Before she could testify, the
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prosecutor asked to approach the bench. At sidebar, the prosecutor noted that
another criminal case was pending against Blanton that was based on allegations
relating to the girlfriend. The parties debated the extent to which the state could
question her about topics that might incriminate Blanton in the other case or
prejudice him in the rape case. Ultimately, the trial court allowed Blanton’s counsel
to confer with him outside the presence of the jury about whether to proceed with
his girlfriend’s testimony. When the jury returned, Blanton’s counsel announced
that the witness was being withdrawn. The jury subsequently learned through
Blanton’s own testimony that the withdrawn witness was his girlfriend.
{¶ 71} Blanton argued in his direct appeal that his counsel provided
ineffective assistance by announcing to the jury that he intended to call the
girlfriend as a witness and then not following through. This, he said, gave the jury
the false impression that his girlfriend’s testimony would have been damaging to
him. The Fourth District rejected his claim, concluding that there was no evidence
in the record regarding what the jurors thought of the defense’s decision not to call
the witness and that any claim of prejudice was therefore speculative. Blanton,
2018-Ohio-1275 at ¶ 72-73. Because the issue had been raised in Blanton’s direct
appeal, the trial court denied his postconviction claim on res judicata grounds, and
the court of appeals affirmed, 2020-Ohio-7018 at ¶ 29.
{¶ 72} Blanton’s postconviction-relief petition provides some information
that was not in the trial record. It explains the nature of the charges in the other
case—that Blanton had allegedly possessed a nude photo of his girlfriend taken
when she was a minor. And his affidavit reports that the defense had expected
Blanton’s girlfriend to testify that his demeanor did not change between the time
that he left her earlier that day and when he returned following his encounter with
J.S. They also expected her to say that she would have felt hurt if Blanton had
confessed to cheating on her.
{¶ 73} Blanton argues that the state would not have been able to question
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the girlfriend about the allegations in the other case under the Ohio Rules of
Evidence and therefore it was not reasonable for his counsel to fail to call the
girlfriend to the stand. The state maintains that Blanton’s claim that his counsel
acted unreasonably in deciding not to call his girlfriend is barred by res judicata.
In debating whether the decision not to call the girlfriend to testify was reasonable,
both the state and Blanton rely on information about the other case involving the
girlfriend that was not included in the trial record in this case. We therefore
conclude that the court of appeals erred in holding that the claim had been fully
adjudicated in the direct appeal.
{¶ 74} Nonetheless, we still must consider whether the evidence, if
believed, establishes a substantive ground for relief. See Cole, 2 Ohio St.3d at 114,
443 N.E.2d 169. We begin by noting that Blanton’s petition is not supported by
any averments of the girlfriend. Rather, he attested to what he believes his
girlfriend’s testimony would have been. But Blanton lacks personal knowledge of
the facts that he expected his girlfriend to relate: her perception of his demeanor
after his encounter with J.S. and her assessment of how she would have reacted had
he told her that he had had consensual sex with J.S.
{¶ 75} Even assuming that Blanton’s predictions about the girlfriend’s
testimony are correct, his claim still fails to present a substantive ground for relief.
While the state may not have been able to question the girlfriend about the specific
allegations in the other case, it likely could have explored her relationship with
Blanton generally as a means of establishing her bias or motivation to lie. See
Evid.R. 616(A). Moreover, the testimony that Blanton suggests she would have
offered does not substantially support his postconviction claim. The fact that his
girlfriend did not observe a change in his demeanor when he returned to her soon
after having sex with another girl does nothing to establish that the sex was
consensual. At best, it illustrates that Blanton was good at hiding his indiscretions
from her. And any acknowledgment by his girlfriend that she would have been hurt
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by his having sex with another girl likewise adds little to his ineffective-assistance
claim.
{¶ 76} Decisions as to whether to call a witness to testify are typically
matters of trial strategy that courts are “reluctant to disturb,” though counsel’s
decision “must be grounded in some strategy that advances the client’s interests.”
Eze v. Senkowski, 321 F.3d 110, 129 (2d Cir.2003). Here, counsel could reasonably
have concluded that the marginal benefits of the girlfriend’s testimony did not
outweigh the risk of the jury’s hearing potentially damaging evidence. We
therefore affirm the court of appeals’ judgment on this claim.
4. Counsel’s failure to file an affidavit of disqualification
{¶ 77} Prior to trial, Blanton’s attorneys filed a motion asking the trial-court
judge to recuse himself from the case. The basis for the motion was that J.S.’s
father was the superintendent of the school district where the judge’s wife worked.
The court held a hearing on the motion, during which counsel presented no
additional evidence. At the hearing, counsel explained, “[W]e are not suggesting
that your relationship with your wife * * * or your relationship with this case in any
way has been prejudicial towards our client. * * * If we felt that there was a
prejudice then it would be our duty to sign an affidavit to take the case to the
Supreme Court and do it that way.” Counsel said they had debated whether to raise
the matter at all and that they had determined that filing an affidavit of
disqualification would be “totally inappropriate.” The judge noted that the school
district is one of the largest employers in Adams County, and he explained that he
was relying on the hearing to learn whether anything inappropriate had been said
by or to his wife regarding the case. Having been informed of no such interference,
the judge declined to recuse himself.
{¶ 78} On direct appeal, Blanton did not assign any error to counsel’s
handling of the recusal issue. See Blanton, 2018-Ohio-1275. But in his
postconviction-relief petition, he asserts that his attorneys provided ineffective
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assistance by failing to further pursue the judge’s removal from the case by filing
an affidavit of disqualification in this court. See R.C. 2701.03. The allegations of
bias contained in the petition are concentrated on the judge’s wife’s employment in
the school district for which J.S.’s father was the superintendent. Blanton’s petition
doesn’t set forth any allegations about the judge’s wife’s employment that were not
included in the trial record. Thus, we agree with both of the courts below that the
claim could have been addressed on direct appeal and is therefore barred by res
judicata. See 2020-Ohio-7018 at ¶ 25.
5. Counsel’s failure to move for a change of venue
{¶ 79} Blanton asserts in his petition that his trial counsel should have
moved for a change of venue due to “the low population of [Adams County] and
the high degree of media attention” to the case. He points to the voir dire
proceedings, which he says demonstrate that a number of the jurors had some
connection to the families or agencies involved in the case. But, again, this voir
dire evidence was part of the trial record. The trial court and the court of appeals
properly concluded that the claim could have been adjudicated on direct appeal.
See 2020-Ohio-7018 at ¶ 31. Thus, it is barred by res judicata.
6. Cumulative error
{¶ 80} Finally, Blanton’s postconviction-relief petition in the rape case
asserts that his counsel performed deficiently in multiple respects, such that even if
counsel’s errors were harmless when considered separately, he was nevertheless
prejudiced by the cumulative effect of the errors. But before this court may find
that a defendant was prejudiced by “cumulative error,” it must first conclude that
multiple errors were committed. State v. Madrigal, 87 Ohio St.3d 378, 398, 721
N.E.2d 52 (2000). Because Blanton has not established any constitutional
violations, his cumulative-error claim fails. See State v. Were, 1st Dist. Hamilton
No. C-080697, 2009-Ohio-4494, ¶ 88, citing Madrigal at 398.
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B. Postconviction proceedings in the jail case
{¶ 81} Blanton’s postconviction-relief petition in the jail case raises five
claims. First, he contends that the state violated his due-process rights by
destroying video evidence from the jail in bad faith that was either materially
exculpatory or potentially useful to his defense. Specifically, he alleges that the
video would have shown that Lunsford was not unconscious when Blanton was
punching him. He also raises three ineffective-assistance claims. He alleges that
his attorneys were deficient in failing to ensure his presence at a hearing on a motion
to dismiss the indictment on the ground that the state had destroyed the video
evidence. He says that his decision not to testify at his trial was based on bad legal
advice regarding the state’s ability to impeach him with evidence of his prior
convictions. And he maintains that his attorneys should have filed either a motion
asking the trial-court judge to recuse himself from the jail case or an affidavit of
disqualification in this court. Finally, Blanton argues that he was prejudiced by the
cumulative effect of the alleged errors.
{¶ 82} The trial court once again rejected Blanton’s claims primarily on the
basis of res judicata, and the Fourth District affirmed. 2020-Ohio-7018.
1. Claims relating to the state’s failure to preserve video footage
{¶ 83} At Blanton’s trial, the state relied on video footage showing the
attack on Lunsford taken from the catwalk outside the jail cell. As previously
noted, the video shows Blanton punching Lunsford repeatedly in the head as
Lunsford lay on the cell’s floor. Blanton did this after watching Michael and
McKee beat and stomp on Lunsford. Lunsford testified that he lost consciousness
during a portion of the assault. And in the state’s closing argument, the prosecutor
described the video as portraying Blanton’s punching an “unconscious” Lunsford.
{¶ 84} Prior to trial, Blanton’s counsel filed a motion to dismiss the charges
in the jail case, claiming that Blanton’s due-process rights were violated by the
state’s failure to retain additional video footage. A due-process violation occurs
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when the government fails to preserve materially exculpatory evidence or when it
destroys evidence in bad faith that is potentially useful to the defense. See State v.
Geeslin, 116 Ohio St.3d 252, 2007-Ohio-5239, 878 N.E.2d 1, ¶ 9, citing Arizona v.
Youngblood, 488 U.S. 51, 57-58 109 S.Ct. 333, 102 L.Ed.2d 281 (1988). Blanton’s
motion focused on footage from the day of and day after the assault, a period during
which Lunsford claimed he had hidden when corrections officers approached the
cell. The defense contended that the video would have shown Lunsford’s actions
and thus was either inculpatory or exculpatory. The gist of the defense’s argument
was that Lieutenant Micah Poe, the jail’s administrator, had acted in bad faith by
selectively retaining only video footage that was helpful to the state’s case while
allowing additional footage from the time of the alleged crimes to be recorded over.
{¶ 85} The state responded that Lieutenant Poe had presented only the
felonious-assault charge to the prosecutor’s office and that he had therefore
preserved only the portion of the video showing the assault. According to the state,
it was not until the prosecutor’s office had conducted its own investigation that it
decided to add the kidnapping charge, and by that time, the footage had been
recorded over. The trial court concluded that the defense had not met its burden of
demonstrating that the video was exculpatory or destroyed in bad faith, and it
denied the motion to dismiss.
{¶ 86} Blanton was not present at the hearing on the motion to dismiss, but
he addressed the video evidence during his sentencing hearing. Blanton maintained
that Lunsford was never unconscious during the assault. He said that Lieutenant
Poe showed him footage of the assault taken from the other end of the catwalk,
which depicted Lunsford moving his arms to protect himself from Blanton’s
punches, and that Lunsford’s movements were not visible in the footage used
during trial that was taken from another angle. Lieutenant Poe testified during
Blanton’s trial that the camera on the other end of the catwalk did not capture
footage of the inside of the cell; Blanton alleged that this was a lie aimed at covering
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up the evidence that Lunsford had remained conscious.
{¶ 87} Blanton raised a due-process claim based on the destroyed video
footage in his direct appeal. Blanton, 2018-Ohio-1278, 110 N.E.3d 1, at ¶ 86. The
court of appeals paid particular attention to the allegations that Blanton made during
his sentencing hearing, noting that he had alleged “personal knowledge of the
exculpatory nature of the discarded video footage and bad faith on the part of the
investigator in failing to preserve it.” Id. at ¶ 97. But the court of appeals concluded
that even “taking [Blanton’s] statements at sentencing as truthful,” the video
footage he described—showing that Lunsford continued to protect himself against
Blanton’s punches—was not exculpatory. Id. at ¶ 98. And it held that even
assuming the video would have been potentially useful to Blanton’s defense, there
had been no showing that it was destroyed in bad faith. Id. at ¶ 99.
{¶ 88} Blanton’s postconviction-relief claim relies primarily on the same
factual allegations. He argues that the footage taken from the other end of the
catwalk depicted a “very conscious Lunsford using both arms to defend himself
from [Blanton’s] punches,” but that the footage used at trial “did not capture
Lunsford’s defensive arm movements because a table was blocking the view of
most of his body.” His petition presents additional information relating to his
allegation that the video was destroyed in bad faith, however. Specifically, Blanton
avers that when Lieutenant Poe showed him the footage of the fight from both
camera angles, “[Poe] told me he had enough charges against me to ensure I would
never go home.”
{¶ 89} Blanton’s petition asserts two claims based on these facts: that his
due-process rights were violated by the state’s failure to preserve the video and that
his attorneys provided ineffective assistance by failing to ensure his presence at the
hearing on the motion to dismiss. We address each claim in turn.
a. Application of res judicata to an alleged due-process violation
{¶ 90} In reviewing Blanton’s postconviction claim relating to the video
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evidence, the trial court noted that in Blanton’s direct appeal, the Fourth District
credited his allegations about the content of the missing video but nonetheless
concluded that the evidence he described—namely, footage of Lunsford fending
off his punches—was not exculpatory. The trial court therefore concluded that
Blanton’s due-process claim was barred by res judicata. The Fourth District
affirmed on the same grounds. 2020-Ohio-7018 at ¶ 37.
{¶ 91} As we have already explained, the general rule of res judicata is that
“a final judgment of conviction bars the convicted defendant from raising and
litigating in any proceeding, except an appeal from that judgment, any [claim] that
was raised or could have been raised by the defendant at the trial which resulted in
that judgment of conviction or on an appeal from that judgment.” Perry, 10 Ohio
St.2d at 180, 226 N.E.2d 104. We have recognized an exception to that rule in the
limited context of postconviction ineffective-assistance-of-counsel claims
involving evidence outside the record. See Cole, 2 Ohio St.3d 112, 443 N.E.2d
169, at syllabus.
{¶ 92} Blanton asks us to expand this exception to allow a postconviction
petitioner to proceed on a due-process claim based on the state’s failure to preserve
evidence, even when the alleged violation was known to the defense at the time of
trial. In essence, he asks us to reach the merits of a claim that could have been—
but was not—fully developed during the trial proceedings. This ignores our
rationale for adopting the limited exception to the application of res judicata for
postconviction ineffective-assistance claims: when a defendant must rely on his
attorney to develop the record or use evidence, and the attorney fails to do so, there
is no other way for the defendant to establish the attorney’s deficient performance
except by presenting evidence outside the trial record. See State v. Hester, 45 Ohio
St.2d 71, 76, 341 N.E.2d 304 (1976). In other words, most claims of ineffective
assistance cannot be developed by the defendant during the trial proceedings.
{¶ 93} Blanton offers no basis to expand this exception to include
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constitutional claims other than ineffective assistance of counsel, and we can see
none. Indeed, doing so would upend decades of caselaw to the contrary. It is true,
however, that res judicata precludes only those due-process claims that could have
been developed during the trial proceedings. Thus, when a petition alleges a due-
process violation based on the state’s wrongful concealment of evidence beneficial
to the defense, and that violation was not discovered until after trial, res judicata is
no bar to the claim. See Perry at 179, citing McMullen, 3 Ohio St.2d 160, 209
N.E.2d 449.
{¶ 94} But here, during the trial-court proceedings, the defense was aware
of the state’s failure to preserve the video evidence and knew of the information on
which Blanton now relies in postconviction. Because the basis for Blanton’s due-
process claim was known to him at the time of trial and could have been fully
litigated at that time, the claim is barred by res judicata.
b. Blanton’s absence from the hearing on the motion to dismiss
{¶ 95} Perhaps anticipating our holding on his due-process claim, Blanton
also contends that his counsel was ineffective for not requesting that he be present
for the hearing on the motion to dismiss. Blanton asserts that if he had attended the
hearing, he would have told his attorneys about the footage allegedly showing that
Lunsford had been conscious throughout the attack, emphasized the need for his
counsel to call Lieutenant Poe to the stand, and testified on his own behalf.
{¶ 96} The trial court found that these claims, which had been raised in
Blanton’s direct appeal, were barred by res judicata. The court of appeals affirmed
the trial court’s judgment on different grounds. See 2020-Ohio-7018 at ¶ 42-43.
The court of appeals noted that in rendering its decision, the trial court performed
“an in-depth review of the petition, the briefs submitted, the affidavits attached, and
the appellate decisions.” Id. at ¶ 43. The court of appeals explained that Blanton’s
affidavit could “fairly be considered ‘self-serving’ ” and concluded that the trial
court “did not abuse its discretion by failing to give [his] affidavit credence.” Id.
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{¶ 97} Blanton takes aim at these last statements. He says the trial court
made no such credibility determination and that the court of appeals improperly
made its own credibility determination. He therefore asks us to reaffirm our
decision in State v. Calhoun, 86 Ohio St.3d 279, 284-285, 714 N.E.2d 905 (1999),
and hold that appellate courts are not permitted to make de novo determinations
regarding the credibility of an affidavit supporting a postconviction-relief petition.
{¶ 98} We agree that appellate courts may not decide the credibility of an
affidavit supporting a postconviction petition in the first instance. We explained in
Calhoun that when reviewing a postconviction-relief petition, a trial court may
judge the credibility of a supporting affidavit and discard claims that are purely
frivolous. Id. at 292. But sworn affidavits “should not lightly be deemed false.”
Id. at 284. And when a trial court “discounts the credibility of sworn affidavits,” it
should “include an explanation of its basis for doing so.” Id. at 285.
{¶ 99} Still, this is largely beside the point. To be entitled to a hearing,
Blanton needed to set forth evidence outside the trial record that, if believed,
established that his trial counsel was ineffective. The focus of Blanton’s claim
about the missing video was that, according to Blanton, the video would have
shown that Lunsford never lost consciousness when Blanton was attacking him as
he lay on the ground. And his claim about his absence from the hearing on the
motion to dismiss is premised on his assertion that if he had been present, he would
have demonstrated that the destroyed video would have shown that Lunsford was
conscious during the attack and that the video was destroyed in bad faith.
{¶ 100} But that is all a non sequitur. Blanton’s allegations about the
content of the video do not establish that it was materially exculpatory. To convict
Blanton of felonious assault, the state was required to prove that he knowingly
caused serious physical harm to Lunsford. See R.C. 2903.11(A)(1). Blanton
watched as other inmates dragged Lunsford to the floor and began kicking him in
the head. Once Lunsford was incapacitated, Blanton joined in and punched him
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about 15 times in the head. The attackers then dispersed for a few moments. But
when Lunsford tried to stand up, Blanton dealt him a few more blows to the head.
He then pinned Lunsford up against the wall, beating him until he collapsed. The
group continued to attack Lunsford until he stopped moving. A doctor determined
that the assault caused Lunsford to sustain a concussion. As the court of appeals
concluded in Blanton’s direct appeal, whether Lunsford was moving during the
entirety of Blanton’s assault has no bearing on whether Blanton knowingly caused
him serious physical harm. See Blanton, 2018-Ohio-1278, 110 N.E.3d 1, at ¶ 98.
{¶ 101} The court of appeals also determined in Blanton’s direct appeal that
even if the footage of the assault from a different angle would have been
“potentially useful” to his defense, Blanton had made no showing that it was
destroyed in bad faith. Id. at ¶ 99. Blanton’s petition sets forth additional
allegations on the issue of bad faith based on evidence outside the trial record.
Blanton alleges that Lieutenant Poe laughed at him when he was convicted of the
charges in the rape case and told him that he “would have 30 years to think about
what [he] did.” And Blanton says that following the assault on Lunsford, Poe
claimed to have “enough charges against [Blanton] to ensure that [he] would never
go home.”
{¶ 102} The problem with Blanton’s bad-faith argument is that his
allegations—even if believed—don’t established bad faith. At most, the allegations
could establish that Poe had some animosity toward Blanton. Poe’s animosity
doesn’t equate to a showing that he deliberately destroyed evidence. Thus, even if
we credit Blanton’s outside-the-record evidence about what he would have added
to the hearing on the motion to dismiss, Blanton is still not entitled to relief. Blanton
has failed to set forth facts that, if believed, show that the result of the hearing on
the motion to dismiss would have been different had he been present. See Cole, 2
Ohio St.3d at 114, 443 N.E.2d 169.
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2. Legal advice regarding impeachment by prior conviction
{¶ 103} Blanton further asserts that his trial counsel gave him incorrect
legal advice that influenced his decision not to testify in his own defense in the jail
case. He avers that his attorneys advised him against testifying, telling him that the
prosecutor would have the right to “impeach [him]” with his recent convictions in
the rape case. He maintains that this advice was incomplete, in that the state does
not have an absolute right to impeach a defendant with his prior convictions.
Rather, under Evid.R. 609(A)(2), evidence that the accused has been convicted of
crime is admissible only if the trial court “determines that the probative value of
the evidence outweighs the danger of unfair prejudice, of confusion of the issues,
or of misleading the jury.” Blanton maintains that had he known this, he would
have sought a pretrial ruling on the admissibility of his convictions from the rape
case before deciding whether to testify in the jail case.
{¶ 104} The trial court rejected this claim on two grounds. It concluded that
the claim was barred by res judicata because it could have been raised on direct
appeal and that the allegations failed to establish a substantive claim for relief. We
disagree with the trial court’s first determination and are unable to consider the
second.
{¶ 105} In determining that res judicata applied, the trial court reasoned that
the fact “[t]hat the specific reasons for the decision not to testify were not in the
record did not prevent [Blanton] from arguing [in his direct appeal] that counsel
was ineffective for failing to have him testify.” The court of appeals agreed,
concluding that Blanton’s claim “could have been included in the direct appeal.”
2020-Ohio-7018 at ¶ 46. We disagree. Blanton’s ineffective-assistance claim
alleges that he was given bad legal advice regarding his decision whether to testify.
That information is not in the trial record, and the claim could not have been
adjudicated in his direct appeal. This claim was therefore not subject to dismissal
on res judicata grounds.
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{¶ 106} Nevertheless, both the trial court and the court of appeals
alternatively determined that Blanton’s ineffective-assistance claim failed on the
merits. Id. at ¶ 47. The court of appeals noted that Blanton’s affidavit stated: “If
called to the witness stand, I would have told the jury that Gary Lunsford was fully
conscious and deflecting my punches with his arms.” Id. The court of appeals
concluded, “[Blanton] fails to see how the statement ‘deflecting my punches with
his arms’ would not be helpful to him.” Id. Thus, the court of appeals determined
that even if Blanton’s allegations were taken as true, he failed to show that he was
prejudiced by his counsel’s performance. See id. Because Blanton has not
challenged that determination, that portion of the court of appeals’ judgment is not
before us. See Estate of Ridley, 102 Ohio St.3d 230, 2004-Ohio-2629, 809 N.E.2d
2, at ¶ 27, citing Timken Mercy Med. Ctr., 61 Ohio St.3d at 87, 572 N.E.2d 673.
We affirm the judgment of the court of appeals rejecting this claim.
3. Counsel’s failure to file a motion to recuse or an affidavit of
disqualification
{¶ 107} Blanton next asserts that his counsel provided ineffective assistance
by failing to move for the trial judge’s recusal or to file an affidavit in this court to
have him disqualified in the jail case. The lower courts concluded, as they did with
the similar allegation in the rape case, that this claim was barred by res judicata.
See 2020-Ohio-7018 at ¶ 52-54.
{¶ 108} But the analysis for this claim is not the same in both cases. As we
explained earlier, Blanton’s claim regarding his attorneys’ failure to pursue an
affidavit of disqualification in the rape case was barred by res judicata because the
factual allegations of bias were contained in the trial record, through the motion for
recusal and the subsequent hearing on that motion. But Blanton’s counsel did not
file a motion to recuse in the jail case. As a result, the facts on which Blanton now
relies are not contained in the trial record. Because the claim relies on information
outside the trial record, it is not barred by res judicata.
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{¶ 109} Still, we conclude that the lower courts reached the correct
judgment. The allegations of bias on which Blanton relies in his petition in the jail
case stem entirely from the rape case: Blanton again highlights the fact that the
judge’s wife was an employee of the school district for which J.S.’s father served
as superintendent. He also vaguely alleges that during the rape trial, the judge
“made comments, some of which were not recorded, and rulings” that reinforced
Blanton’s belief that the judge was biased against him. His petition does not
elaborate on the nature of the comments or rulings in the rape case. Nor does he
allege any conduct by the trial judge during the jail case that suggests any improper
bias. Indeed, Blanton contends only that his counsel should have filed a motion to
recuse to prevent the judge’s alleged bias in the rape case from “carrying over” to
the jail case. But the fact that a judge has presided over a previous case involving
the same defendant does not by itself establish bias in the current case. We
therefore conclude that Blanton has failed to allege facts sufficient to establish that
he was denied effective assistance of counsel in this respect, and we affirm the
judgment of the court of appeals on that basis.
4. Cumulative error
{¶ 110} Blanton again contends that he has been prejudiced by the
combined effect of his counsel’s errors in the jail case, such that he has been denied
the right to effective assistance of counsel. Because Blanton has not established a
substantive right to relief on any of his claims, this claim, too, must fail.
V. CONCLUSION
{¶ 111} We adhere to our precedent regarding the application of res judicata
to postconviction claims alleging a denial of the constitutional right to effective
assistance of counsel. Such claims are not procedurally barred if they cannot be
meaningfully reviewed without resorting to evidence outside the trial record. In
this case, however, all of Blanton’s claims are either barred by res judicata or fail
to set forth a substantive claim for relief. We therefore affirm the judgment of the
35
SUPREME COURT OF OHIO
Fourth District Court of Appeals upholding the trial court’s dismissals of his
petitions for postconviction relief.
Judgment affirmed.
KENNEDY, FISCHER, DONNELLY, and BRUNNER, JJ., concur.
O’CONNOR, C.J., and STEWART, J., concur in judgment only.
_________________
C. David Kelley, Adams County Prosecuting Attorney, and Mark R.
Weaver and Ryan M. Stubenrauch, Assistant Prosecuting Attorneys, for appellee.
Dennis C. Belli, for appellant.
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W.
Springman Jr., Chief Assistant Prosecuting Attorney, urging affirmance for amicus
curiae Hamilton County Prosecutor’s Office.
Morrow, Gordon & Byrd, Ltd., and Phillip Demarest, urging affirmance for
amici curiae Ohio Law and Liberty Foundation and Rape, Abuse & Incest National
Network.
Timothy Young, Ohio Public Defender, and Timothy B. Hackett, Max
Hersch, and Elise Grifka Wander, Assistant Public Defenders; Russell S. Bensing;
and Erika Cunliffe, Assistant Cuyahoga County Public Defender, urging reversal
for amici curiae Office of the Ohio Public Defender, Ohio Association of Criminal
Defense Lawyers, and Office of the Cuyahoga County Public Defender.
_________________
36 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482836/ | [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Hatton, Slip Opinion No. 2022-Ohio-3991.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2022-OHIO-3991
THE STATE OF OHIO, APPELLEE v. HATTON, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Hatton, Slip Opinion No. 2022-Ohio-3991.]
Crim.R. 33(B)—R.C. 2953.21 and 2953.23—The trial court and court of appeals
abused their discretion by applying res judicata to bar defendant’s claims—
Judgment reversed and cause remanded to the trial court.
(No. 2021-0704—Submitted March 30, 2022—Decided November 10, 2022.)
APPEAL from the Court of Appeals for Pickaway County, No. 19CA34,
2021-Ohio-1416.
_____________________
O’CONNOR, C.J.
{¶ 1} Appellant, Martin L. Hatton, is serving an aggregate 39-year prison
sentence for his 1997 convictions for aggravated burglary, kidnapping, rape,
felonious assault, and theft—offenses that he has consistently maintained he did
not commit. Hatton has unsuccessfully challenged his convictions on direct appeal,
SUPREME COURT OF OHIO
in a timely petition for postconviction relief, and in numerous other postconviction
filings.
{¶ 2} In 2018, more than 20 years after his convictions, Hatton discovered
through a public-records request a memorandum from Raman Tejwani, the DNA
expert who testified for the state at Hatton’s trial, to the Pickaway County
prosecutor dated June 22, 1998. In the memo, Tejwani acknowledged that the
mixed samples (i.e., DNA samples that included DNA from more than one
contributor) about which she had testified at Hatton’s trial contained male DNA
from someone other than Hatton or Ricky Dunn, whom the state had identified as
the second of two participants in the offenses and against whom the state had also
obtained convictions.
{¶ 3} Based primarily on his discovery of the Tejwani memo, Hatton filed
a motion for leave to file a motion for a new trial and a successive petition for
postconviction relief, both of which the Pickaway County Court of Common Pleas
denied without a hearing. The Fourth District Court of Appeals affirmed the trial
court’s judgment.
{¶ 4} We reverse the court of appeals’ judgment and remand this matter to
the trial court for further proceedings.
Relevant Background
Trial proceedings
{¶ 5} Following a jury trial in 1997, Hatton was convicted of aggravated
burglary, kidnapping, rape, felonious assault, and theft. The state’s theory of the
case was that Hatton and Dunn entered the Circleville home of P.C. and S.C., that
Hatton raped their 17-year-old daughter J.C. at knifepoint in her upstairs bedroom,
and that Hatton then forced her downstairs to the family room, where Dunn raped
her. J.C.’s trial testimony tracked the state’s theory, although she could not identify
Hatton as the man who had raped her in her bedroom.
2
January Term, 2022
{¶ 6} During the crimes, J.C.’s father, P.C., walked downstairs to
investigate sounds he had heard from his bedroom. From the stairway, P.C.
observed one person, whom he could not identify, running from the house.
However, P.C. was able to restrain a second person—later identified as Dunn—
who ran into him after he reached the bottom of the staircase. P.C. testified that
while he and Dunn struggled, Dunn screamed out the door, “Marty, Marty, Marty!”
and stated, “I came with Marty Hatton.” Meanwhile, J.C. ran upstairs to her
mother, and they called 9-1-1.
{¶ 7} Sergeant Wayne Gray, the first police officer to arrive at the scene,
found P.C. standing over Dunn in the foyer. Dunn was screaming for “Marty,” and
he told Sergeant Gray he was there with “Marty Hatton.” The officers arrested
Dunn and began searching for the second suspect.
{¶ 8} A more complete description of the testimony from Hatton’s trial,
including Dunn’s incriminating testimony and evidence that Dunn and Hatton were
together on the night of the offenses, may be found in State v. Hatton, 4th Dist.
Pickaway No. 97 CA 34, 1999 WL 253450 (Apr. 19, 1999) (“Hatton I”). Here,
though, we focus on the DNA evidence presented at Hatton’s trial.
{¶ 9} The state called Tejwani, a criminalist employed by the city of
Columbus’s crime lab, as an expert witness. The crime lab had received from the
Circleville Police Department blood samples from Hatton, Dunn, and J.C.; vaginal
swabs and underwear collected from J.C.; and a purported semen stain on a piece
of fabric cut by the police from a sweatshirt that Hatton was allegedly wearing on
the night of the offenses. The stain from the sweatshirt did not contain enough cells
to extract DNA, and no conclusions could be drawn regarding its source. The lab
performed a differential extraction of the mixed samples on the vaginal swabs and
underwear to separate the female and male fractions, and it used a polymerase chain
reaction to test the DNA.
3
SUPREME COURT OF OHIO
{¶ 10} Tejwani testified that the male fractions from the vaginal swabs and
underwear “could not give information for the contributor[s]” because they were
mixed samples and that she could “neither exclude nor include anybody” as a
contributor to those mixed samples. With respect to those mixed samples, the table
of test results included in the lab report signed by Tejwani, provided to Hatton’s
counsel before trial, and admitted as evidence stated only, “Inconclusive.”
{¶ 11} During her trial testimony, Tejwani referred to her notes, which the
state had not produced to Hatton but which Tejwani agreed to provide to Hatton’s
attorney at the conclusion of her testimony.
{¶ 12} The next day, Hatton called his own forensic expert, Larry M.
Dehus, who had reviewed the lab report and the notes that Tejwani had provided to
defense counsel the previous day. He testified that “there was information in the
notes that was not included in the report,” specifically the presence of a faint B
allele in the mixed-sample male DNA fractions at genetic marker D7S8. According
to Dehus, the B allele was significant because it could not have come from Hatton,
Dunn, or J.C., all of whom had only A alleles at that genetic marker. He therefore
opined that someone other than Hatton and Dunn “was [a] contributor to semen in
those samples.”
{¶ 13} The state neither offered a rebuttal to Dehus’s testimony that the
mixed samples contained DNA from a male contributor other than Hatton or Dunn
nor suggested an alternative source for the additional DNA. In fact, the prosecutor
ignored Dehus’s testimony about the significance of the B allele altogether, never
once mentioning the B allele in his cross-examination of Dehus. Instead, the
prosecutor focused almost exclusively on impeaching Dehus’s qualifications. In
his closing argument, the prosecutor told the jury that Dehus’s testimony was no
different from Tejwani’s testimony—that the DNA test results did not conclusively
include or exclude Hatton. But the prosecutor then flatly rejected the defense’s
argument that someone other than Hatton and Dunn was involved: “There was no
4
January Term, 2022
third person. It was Ricky Dunn and Marty Hatton inside that residence * * *
beyond any reasonable doubt.”
Hatton’s direct appeal and initial petition for postconviction relief
{¶ 14} The Fourth District affirmed Hatton’s convictions on direct appeal.
Hatton I, 4th Dist. Pickaway No. 97 CA 34, 1999 WL 253450. As relevant here,
the court of appeals rejected Hatton’s argument that the state’s failure to disclose
the existence of the B allele prior to trial deprived him of a fair trial. Id. at *20-21.
It stated that unlike a typical violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct.
1194, 10 L.Ed.2d 215 (1963), in which the jury is denied the opportunity to hear
about the alleged exculpatory evidence, Hatton’s expert witness was able to testify
at trial about the B allele and its significance. Hatton I at *21.
{¶ 15} In 1998, while his direct appeal was pending in the court of appeals,
Hatton filed a petition for postconviction relief in the trial court. There, he again
argued that the state had “failed to disclose relevant, exculpatory evidence”—the
presence of the B allele—“in time for its effective use at trial.” In support of his
petition, Hatton filed an affidavit from molecular biologist Christie T. Davis. Davis
agreed with Tejwani’s characterization of the male DNA fractions from the mixed
samples as “inconclusive,” but she also stated that the B allele must have come
from someone other than Hatton or Dunn. After the court of appeals affirmed
Hatton’s convictions in his direct appeal, the trial court denied Hatton’s petition for
postconvition relief without holding a hearing, characterizing the arguments in his
petition as “basically identical” to those he had unsuccessfully raised on appeal.
The Fourth District affirmed that judgment, stating that Davis’s affidavit was “not
altogether different from” Dehus’s testimony and did not demonstrate that Tejwani
had testified falsely. State v. Hatton, 4th Dist. Pickaway No. 00CA10, 2000 WL
1152236, *5 (Aug. 4, 2000).
5
SUPREME COURT OF OHIO
The Tejwani memo
{¶ 16} In 2018, in response to a public-records request, Hatton received for
the first time a copy of a memo from Tejwani to the county prosecutor. The memo
was dated June 22, 1998, a date on which both Hatton’s direct appeal and his first
petition for postconviction relief were pending. The memo, which Tejwani wrote
following a phone conversation she had with Hatton’s postconviction counsel,
Keith Yeazel, states:
Mr. Yeazel was concerned about the origin of the faint “B”
type observed at the D7S8 locus in sample 5 (vaginal swabs, male
fraction) as reported in the Crime Lab log, page 3. This type was
not observed in the known blood samples of [J.C.], Martin L. Hatton
or Ricky D. Dunn. The male fraction of the vaginal swabs consisted
of a mixed DNA sample and no information regarding the
contributor could be obtained from the DNA typing results which
were reported as “inconclusive” in the Lab Report.
{¶ 17} In the memo, Tejwani implicitly informed the prosecutor that
Hatton’s attorney was asking about an element of the DNA test results that she had
not included in the lab report or testified about at trial, and she also acknowledged
that neither Hatton nor Dunn could have contributed the B allele that was found in
the mixed samples, because a B allele was “not observed in the known blood
samples.” The memo was the first and only acknowledgment in the record by a
state’s witness that the B allele indicated that someone other than Hatton or Dunn
had contributed to the male DNA in the mixed samples. The prosecutor did not
disclose the Tejwani memo to Hatton’s trial, appellate, or postconviction counsel.
And Hatton did not learn of its existence for more than 20 years.
6
January Term, 2022
Hatton’s 2019 motion for leave to file a motion for a new trial and his petition
for postconviction relief
{¶ 18} In 2019, based primarily on his discovery of the Tejwani memo,1
Hatton filed a motion for leave to file a motion for a new trial and a petition for
postconviction relief. Hatton made similar arguments in both filings and requested
an evidentiary hearing and a new trial. Hatton argued that the memo contradicted
Tejwani’s trial testimony that the DNA test results were inconclusive and that the
memo demonstrated that the test results excluded him as a contributor to the mixed
samples. He also argued that the state’s failure to disclose that material,
exculpatory information and its presentation of false testimony from Tejwani
violated his right to a fair trial. Finally, he preemptively argued that res judicata
should not apply, because the Tejwani memo had not been “subject to inclusion or
review at any level.”
{¶ 19} The trial court addressed Hatton’s motion and postconviction
petition together, and it denied both without a hearing. Without distinguishing
between the motion and the petition, the court summarily rejected Hatton’s
arguments that the memo contradicted Tejwani’s trial testimony and that it
demonstrated that the test results excluded him as a source of the DNA. It also held
that res judicata barred Hatton’s arguments because the memo was “not really new”
evidence and because the “issue [had] been litigated and decided before.” On
appeal, the Fourth District agreed that res judicata barred Hatton’s requested relief,
and it affirmed the trial court’s judgment. 2021-Ohio-1416, ¶ 29, 39, 46.
1. In support of his motion and petition, Hatton also submitted evidence that in 2009, Dunn recanted
his testimony that implicated Hatton in the offenses, but both the trial court and the court of appeals
had previously considered the recantation and found it not credible. See State v. Hatton, 4th Dist.
Pickaway No. 13CA26, 2014-Ohio-3601. Hatton also submitted a purportedly newly discovered
police report in which a detective noted that he and another officer did not believe Dunn’s initial
statements to them that Dunn had had consensual sex with J.C.
7
SUPREME COURT OF OHIO
{¶ 20} In this discretionary appeal, Hatton presents three propositions of
law. He asks this court to hold that (1) the state must always disclose DNA test
results that exclude a defendant as a contributor to an evidentiary DNA sample, (2)
the state must disclose DNA test results and analyses if it learns, even after trial,
that its expert testified contrary to those results, and (3) a trial court errs by denying
a petition for postconviction relief when the petitioner has established with newly
discovered evidence that the conviction was based on materially false evidence.
Analysis
{¶ 21} We do not reach Hatton’s propositions of law, which concern the
merits of whether Hatton is entitled to a new trial under Crim.R. 33 or R.C. 2953.21
and 2953.23, because determinative threshold issues require us to reverse the court
of appeals’ judgment and remand this matter to the trial court for further
proceedings.
Res judicata does not bar Hatton’s motion or his petition
{¶ 22} Before directly addressing Hatton’s motion for leave to file a motion
for a new trial and his petition for postconviction relief, we first reject the trial
court’s and court of appeals’ determinations that res judicata precludes Hatton from
seeking a new trial and postconviction relief based on the recently discovered
Tejwani memo. The doctrine of res judicata precludes a convicted defendant “from
raising and litigating in any proceeding, except an appeal from that judgment, any
defense or any claimed lack of due process that was raised or could have been
raised” at trial or on direct appeal. State v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d
233 (1996), syllabus. Res judicata applies to motions for a new trial, see, e.g., State
v. Rodriguez, 8th Dist. Cuyahoga No. 108048, 2019-Ohio-5117, ¶ 23, and petitions
for postconviction relief, see State v. Reynolds, 79 Ohio St.3d 158, 679 N.E.2d 1131
(1997).
{¶ 23} The trial court here held that res judicata bars Hatton’s claims
because his purportedly “ ‘new evidence’ is not really new” and because his
8
January Term, 2022
arguments have been litigated before. The court of appeals likewise concluded that
res judicata bars Hatton’s claims. It reasoned, “[T]he pertinent information from
the [Tejwani] memo was known and available to [Hatton] during his trial.” 2021-
Ohio-1416 at ¶ 28. It also stated that Hatton had challenged, albeit unsuccessfully,
Tejwani’s credibility in his 1998 petition for postconviction relief. Id. at ¶ 29. Both
courts’ conclusions, however, are based on a fundamental misunderstanding of the
Tejwani memo and its import.
{¶ 24} While the existence of the B allele and its omission from the lab
report and Tejwani’s trial testimony did permeate Hatton’s arguments on direct
appeal and in his 1998 petition for postconviction relief, the Tejwani memo does
more than simply restate the existence of the B allele and reiterate Tejwani’s
testimony that the DNA test results were inconclusive. The new information in the
memo is the acknowledgment by Tejwani—the state’s expert witness—that the B
allele could not have originated from Hatton or Dunn and that, therefore, DNA from
another male was present in the mixed samples. That new information creates an
obvious hole in the state’s narrative that two men entered J.C.’s home, that those
two men raped J.C. and left their DNA, and that those two men were Hatton and
Dunn. If the male DNA in the mixed samples was wholly contributed by two men,
one of whom was Dunn, then Tejwani’s acknowledgment of the B allele and its
significance would mean that Hatton could not have been the other contributor.2
{¶ 25} Tejwani’s acknowledgment in the memo of the significance of the B
allele, which was glaringly absent from both the lab report and her trial testimony,
2. This does not mean that the test results necessarily exonerate Hatton, because we do not know
whether the mixed samples contained DNA from two men or from more than two men. Davis stated
that the male fraction indicated “a mixture of DNA from at least two individuals,” and Tejwani
could say only that there was “more than one donor.” Dehus stated that someone other than Hatton
and Dunn must have contributed to the male fraction of the samples. Davis also acknowledged
scenarios under which DNA from a male, unconnected to the offenses, could have ended up in the
mixed samples. That said, no evidence was introduced at trial to identify any innocent source of
DNA in the male fraction of the samples.
9
SUPREME COURT OF OHIO
is qualitatively different than bare knowledge of the B allele’s presence. Had he
been armed with the withheld acknowledgement by the state’s own expert, Hatton
could have impeached Tejwani’s incomplete testimony and buttressed, if not
outrightly confirmed, defense expert Dehus’s testimony about the DNA test results,
the substance of which the prosecutor essentially ignored. Additionally, had
Tejwani’s acknowledgement come out at trial, it likely would have compelled the
state to offer some explanation for the additional or alternative contributor to the
mixed samples, given the state’s theory that Dunn and Hatton were the only two
offenders. Tejwani’s acknowledgment and its potential effect on Hatton’s trial
have not been, and could not have been, litigated before. Accordingly, we conclude
that both the trial court and the court of appeals abused their discretion by applying
res judicata to preclude Hatton from arguing for a new trial and postconviction
relief based on newly discovered evidence.
Motion for leave to file a motion for a new trial
{¶ 26} We now turn to Hatton’s motion for leave to file a motion for a new
trial.
{¶ 27} Crim.R. 33(A) states: “A new trial may be granted on motion of the
defendant for any of the following causes affecting materially the defendant’s
substantial rights: * * * (6) When new evidence material to the defense is
discovered which the defendant could not with reasonable diligence have
discovered and produced at the trial.” Generally, a motion for a new trial based on
newly discovered evidence must be filed within 120 days after the jury verdict was
rendered or the trial court’s decision was issued if the defendant waived the right
to a jury trial. Crim.R. 33(B).
{¶ 28} An untimely motion for a new trial based on newly discovered
evidence may be filed only if the defendant first establishes by clear and convincing
evidence that he was unavoidably prevented from discovering the evidence within
the 120-day period. Id. If the trial court determines that the defendant has met that
10
January Term, 2022
burden and grants a motion for leave to file a motion for a new trial, then the
defendant must file that motion within seven days. Id. In the motion for a new
trial, the defendant must show that the newly discovered evidence discloses “ ‘ “a
strong probability that it will change the result if a new trial is granted” ’ ” and that
it is not “ ‘ “merely cumulative to former evidence.” ’ ” State v. LaMar, 95 Ohio
St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 85, quoting State v. Hawkins, 66
Ohio St.3d 339, 350, 612 N.E.2d 1227 (1993), quoting State v. Petro, 148 Ohio St.
505, 76 N.E.2d 370 (1947), syllabus. The defendant is entitled to an evidentiary
hearing when the allegations in the motion demonstrate substantive grounds for
relief. State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999).
{¶ 29} Because Hatton seeks a new trial more than 20 years after his
convictions, he must comply with Crim.R. 33(B)’s two-step process for filing an
untimely motion. Appellate review of a trial court’s ruling on a motion for leave
to file a motion for a new trial is conducted under an abuse-of-discretion standard.
State v. Townsend, 10th Dist. Franklin No. 08AP-371, 2008-Ohio-6518, ¶ 8, citing
State v. Pinkerman, 88 Ohio App.3d 158, 160, 623 N.E.2d 643 (4th Dist.1993),
citing State v. Wright, 2d Dist. Greene No. 90 CA 135, 1992 WL 66385 (Mar. 31,
1992). An abuse of discretion is more than an error of law or judgment; it implies
that the court’s attitude is unreasonable, arbitrary, or unconscionable. Blakemore
v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶ 30} When a defendant seeks leave to file a motion for a new trial under
Crim.R. 33(B), the trial court may not consider the merits of the proposed motion
for a new trial until after it grants the motion for leave. State v. Bethel, 167 Ohio
St.3d 362, 2022-Ohio-783, 192 N.E.3d 470, ¶ 41, citing State v. Brown, 8th Dist.
Cuyahoga No. 95253, 2011-Ohio-1080, ¶ 14. The sole question before the trial
court when considering whether to grant leave is whether the defendant has
established by clear and convincing proof that he was unavoidably prevented from
discovering the evidence on which he seeks to base the motion for a new trial.
11
SUPREME COURT OF OHIO
{¶ 31} In support of his motion for leave to file a motion for a new trial,
Hatton submitted numerous documents, including the Tejwani memo and an
affidavit in which he detailed his initial receipt of the memo in 2018. Hatton could
not have discovered the Tejwani memo within 120 days after the jury’s verdict,
because Tejwani did not write it until after that time had elapsed. And then, after
Tejwani drafted the memo and transmitted it to the prosecutor, the state withheld
the memo from Hatton, despite its relevance to arguments in Hatton’s then-pending
direct appeal and petition for postconviction relief. We have held that “a defendant
may satisfy the ‘unavoidably prevented’ requirement contained in Crim.R. 33(B)
by establishing that the prosecution suppressed the evidence on which the defendant
would rely in seeking a new trial.” State v. McNeal, __ Ohio St.3d __, 2022-Ohio-
2703, __ N.E.3d __, ¶ 17, citing Bethel at ¶ 25, 59. The state does not dispute
Hatton’s assertion that he was unavoidably prevented from discovering the Tejwani
memo. Instead, it continues to assert that it had no duty to turn over the memo.
{¶ 32} The trial court ignored Crim.R. 33(B)’s two-step process and
sidestepped the preliminary question whether Hatton had demonstrated that he was
unavoidably prevented from discovering the evidence on which he seeks to rely.
Instead, the court improperly jumped to the merits of Hatton’s claim for a new trial,
which the court reviewed under the standard stated in Petro, 148 Ohio St. 505, 76
N.E.2d 370, at syllabus:
To warrant the granting of a motion for a new trial in a
criminal case, based on the ground of newly discovered evidence, it
must be shown that the new evidence (1) discloses a strong
probability that it will change the result if a new trial is granted, (2)
has been discovered since the trial, (3) is such as could not in the
exercise of due diligence have been discovered before the trial, (4)
is material to the issues, (5) is not merely cumulative to former
12
January Term, 2022
evidence, and (6) does not merely impeach or contradict the former
evidence.
The court held that the Tejwani memo was not outcome determinative, because
“DNA evidence was not essential” to the state’s case and the jury was able to
convict Hatton based on other evidence. The court stated that Hatton’s “ ‘new
evidence’ comes nowhere near meeting the conditions outlined * * * in Petro.”
{¶ 33} Although the Petro standard will apply in resolving the merits of
Hatton’s motion for a new trial under Crim.R. 33(A)(6), Hatton was not required
to satisfy that standard to obtain leave to file a motion for a new trial. He was
required to establish only that he was unavoidably prevented from discovering the
evidence on which he seeks to base his motion. Unless and until a trial court grants
a defendant leave to file a motion for a new trial, the merits of the new-trial claim
are not before the court. See Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, 192
N.E.3d 470, at ¶ 41 (“The trial court should not have purported to deny Bethel’s
new-trial motion on its merits, because the court never permitted Bethel to file that
motion”). As the Fourth District noted in this case, the state conceded that the trial
court erred by failing to address the narrow, preliminary question before it. 2021-
Ohio-1416 at ¶ 10-11.
{¶ 34} Hatton supported his motion for leave to file a motion for a new trial
with uncontradicted evidence that, on its face, demonstrates that he was
unavoidably prevented from discovering the Tejwani memo—the primary evidence
upon which he seeks to base his motion for a new trial—within the time for filing
a motion for a new trial. By overlooking Hatton’s satisfaction of that burden and
denying his motion for leave to file a motion for new trial, the trial court abused its
discretion.
{¶ 35} Questions about whether Hatton’s newly discovered evidence
satisfies the remaining elements of the Petro standard, including whether the
13
SUPREME COURT OF OHIO
Tejwani memo creates a strong probability that it would change the result if a new
trial were granted, remain for the trial court to decide when adjudicating the motion
for a new trial itself. Thus, we express no opinion on whether Hatton should
ultimately prevail on the merits of his motion for a new trial.
{¶ 36} Nevertheless, we do hold that Hatton is entitled to an evidentiary
hearing on his motion. The trial court ultimately and improperly decided Hatton’s
motion for a new trial on the merits, concluding that the Tejwani memo was not
outcome determinative, and it also employed the wrong analysis to reach that
conclusion. Whether suppressed evidence is outcome determinative for purposes
of a motion for a new trial is not determined by whether sufficient other evidence
supported the jury’s verdict but by whether the suppressed evidence, when viewed
in the context of the whole case, is sufficient to undermine confidence in the verdict.
McNeal, __ Ohio St.3d __, 2022-Ohio-2703, __ N.E.3d __, at ¶ 21. As we stated
above, the Tejwani memo illuminated a substantial hole in the state’s theory of its
case against Hatton, and Hatton reasonably alleged, and is entitled to an opportunity
to prove at an evidentiary hearing, that the new information contained in the memo,
had it been available to him at trial, would likely have resulted in a different
outcome. We conclude that Hatton’s motion alleged sufficient substantive grounds
for relief to warrant a hearing.
Petition for postconviction relief
{¶ 37} Finally, we turn to Hatton’s petition for postconviction relief under
R.C. 2953.21 and 2953.23. Pursuant to R.C. 2953.21(A)(1)(a), a convicted
defendant who asserts a denial or infringement of constitutional rights sufficient to
render his conviction void or voidable may file a petition asking the court that
imposed sentence to vacate the judgment or sentence or to grant other relief. A
petitioner, like Hatton, who files a petition more than 365 days after the trial
transcript was filed in the court of appeals in his direct appeal or who files a
successive petition, must satisfy the jurisdictional requirements in R.C.
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January Term, 2022
2953.23(A)(1) or (2) for an untimely, second, or successive petition for
postconviction relief. Bethel, 167 Ohio St.3d 362, 2022-Ohio-783, 192 N.E.3d 470,
at ¶ 20; R.C. 2953.21(A) and 2953.23(A). To warrant an evidentiary hearing on a
petition for postconviction relief, the petitioner bears the burden of producing
evidence that demonstrates a cognizable claim of constitutional error. State v.
Sidibeh, 10th Dist. Franklin No. 12AP-498, 2013-Ohio-2309, ¶ 13.
{¶ 38} We review a decision to grant or deny a petition for postconviction
relief, including the decision whether to afford the petitioner a hearing, under an
abuse-of-discretion standard. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-
6679, 860 N.E.2d 77, ¶ 51-52, 58. But whether a trial court has subject-matter
jurisdiction to entertain an untimely, second, or successive petition for
postconviction relief is a question of law, which we review de novo. State v.
Apanovitch, 155 Ohio St.3d 358, 2018-Ohio-4744, 121 N.E.3d 351, ¶ 24.
{¶ 39} Hatton invoked R.C. 2953.23(A)(1) as the basis for the trial court’s
jurisdiction to consider his petition.3 To satisfy R.C. 2953.23(A)(1), Hatton was
required to show (1) that he was unavoidably prevented from discovering the facts
on which he must rely to present his claim for relief and (2) that but for
constitutional error at trial, no reasonable fact-finder would have found him guilty.
The “unavoidably prevented” requirement in R.C. 2953.23(A)(1) mirrors the
“unavoidably prevented” requirement in Crim.R. 33(B). Bethel at ¶ 59, citing State
v. Barnes, 5th Dist. Muskingum No. CT2017-0092, 2018-Ohio-1585, ¶ 28.
{¶ 40} Neither the trial court nor the court of appeals directly addressed
whether Hatton satisfied one of the exceptions in R.C. 2953.23(A) to establish the
trial court’s jurisdiction to consider an untimely and successive petition for
3. The trial court erroneously stated that Hatton relied on R.C. 2953.23(A)(2), which is inapplicable
here. See Apanovitch at ¶ 29 (holding that R.C. 2953.23(A)(2) confers jurisdiction only over a select
class of offenders who applied for DNA testing under R.C. 2953.71 through 2953.81 or under former
R.C. 2953.82).
15
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postconviction relief. Although the trial court stated that Hatton’s “ ‘new evidence’
is not really new,” it did so in the context of applying res judicata, not in the context
of assessing its jurisdiction under R.C. 2953.23. Similarly, the court of appeals
alluded to its finding that the Tejwani memo did not contain facts previously
unavailable to Hatton, but then, rather than holding that the trial court lacked
jurisdiction, the court of appeals stated, “Therefore, appellant’s petition herein is
also barred by res judicata.” 2021-Ohio-1416 at ¶ 38.
{¶ 41} Having determined that the trial court and the court of appeals
abused their discretion by applying res judicata to preclude Hatton’s claims, we
must reverse the court of appeals’ decision affirming the dismissal of Hatton’s
petition for postconviction relief on that basis. On remand, the trial court must
begin by answering the threshold question—whether Hatton satisfied the
jurisdictional requirements of R.C. 2953.23(A)(1) to file an untimely and
successive petition for postconviction relief. In answering that question, the court
should avoid indulging in the mischaracterizations of the Tejwani memo that
permeated the lower courts’ prior decisions in this matter and that we have rejected
in our discussion of res judicata above.
Conclusion
{¶ 42} For these reasons, we reverse the judgment of the Fourth District
Court of Appeals and remand this matter to the trial court with instructions that it
grant Hatton’s motion for leave to file a motion for a new trial; afford Hatton an
evidentiary hearing on his motion for a new trial; and determine whether Hatton
has satisfied the jurisdictional requirements for an untimely and successive petition
for postconviction relief under R.C. 2953.23(A)(1), and if so, determine the merits
of that petition.
Judgment reversed
and cause remanded.
FISCHER, DEWINE, and STEWART, JJ., concur.
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January Term, 2022
DONNELLY, J., concurs, with an opinion joined by BRUNNER, J.
KENNEDY, J., concurs in judgment only.
_________________
DONNELLY, J., concurring.
{¶ 43} I fully join the majority opinion. I write separately to note that a
sizeable amount of evidence outside the trial-court record has accumulated in this
case from the many postconviction filings made between 1998 and 2019 by
appellant, Martin Hatton. When postconviction petitioners seeking new trials
provide evidence outside the trial-court record that potentially undermines the
theory of guilt that was used to convict them, courts should hold hearings on the
petitions as a regular practice. But Ohio courts are not doing this. I also write to
emphasize the pitfalls of having only one trial judge assess the integrity of a
conviction throughout the entire life of a criminal case. And there are pitfalls to
conducting postconviction review as a continuation of the adversarial process rather
than as a neutral truth-seeking process. Justice would be better served by expanding
the rules that apply to petitions for postconviction relief and motions for a new trial
that involve claims of actual innocence and relevant evidence that was not proffered
at the time of trial. Justice would also be better served by supplementing the
postconviction process with an independent commission that has the power to
investigate claims of actual innocence and assess whether a viable claim of
innocence has been established. This case highlights the need for such reforms.
{¶ 44} As is clear from the majority opinion, the identity of the second
perpetrator was the central issue at Hatton’s 1997 trial. The rape victim was unable
to identify the person who, along with Ricky Dunn, broke into her home and raped
her. As the state’s DNA expert testified, the DNA evidence was inconclusive. The
state’s expert also knew that the DNA samples contained male DNA that could not
have come from Hatton or Dunn, but the state failed to disclose that fact to the
defense before or during the expert’s testimony. The state did not provide Hatton
17
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with the expert’s revelatory DNA-analysis notes until after the expert had testified.
However, Dunn testified that Hatton was the second perpetrator, and other
witnesses testified that Dunn had identified Hatton as the second perpetrator.
{¶ 45} In support of his 1998 postconviction petition, Hatton submitted the
affidavit of a DNA expert averring that the state had used scientifically
unacceptable procedures in performing its DNA testing and that her review of the
state’s results indicated that either Hatton was not a contributor to the DNA samples
or that a third male had also contributed to the DNA samples. Hatton also provided
an affidavit from Dunn’s cellmate averring that Dunn had told him that he had
falsely identified Hatton as the second perpetrator. The trial court denied the
petition without a hearing, concluding that the DNA expert’s affidavit submitted by
Hatton did not contain new evidence outside the trial-court record (other than the
expert’s opinion of the evidence that had been presented at trial) and that the
cellmate’s affidavit was hearsay and did not “create a strong probability the result
in [a new] trial would be different.”
{¶ 46} In 2005 and 2008, with the help of the Ohio Innocence Project,
Hatton requested postconviction DNA testing. The trial court concluded in both
instances that DNA testing was unwarranted because a “reasonable jury” could still
find Hatton guilty “based solely upon circumstantial evidence and testimony of the
other witnesses.” The court of appeals affirmed both judgments. State v. Hatton,
4th Dist. No. 05CA38, 2006-Ohio-5121; State v. Hatton, 4th Dist. No. 09CA4,
2010-Ohio-1245. In affirming the second judgment, the Fourth District Court of
Appeals added that Hatton could have raped the victim without leaving DNA, and
that the convictions were based on other evidence, including Dunn’s testimony.
2010-Ohio-1245 at ¶ 23-25.4
4. I consider the appellate court’s elaboration in this instance to be inappropriate. It is not the role
of an appellate court to come up with theories supporting a criminal defendant’s guilt that are not
reflected in the trial court’s decision.
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January Term, 2022
{¶ 47} In support of a 2011 motion for leave to file a motion for a new trial,
Hatton submitted correspondence that Dunn had sent to the Innocence Project in
2009, recanting his trial testimony and identifying the second perpetrator as “Jeff
Massey.” Hatton also submitted a more recent affidavit from Dunn in which he
averred that he had falsely identified Hatton rather than Massey as the second
perpetrator. Although Hatton included an affidavit from an attorney for the
Innocence Project explaining that the organization had not provided Dunn’s
correspondence to Hatton until December 2010, the trial court concluded that
Hatton had failed to justify his delay in filing his motion, and it denied leave. After
being instructed by the Fourth District to reach the merits of Hatton’s motion, State
v. Hatton, 4th Dist. Pickaway No. 11CA23, 2013-Ohio-475, the trial court denied
the motion without a hearing, finding that Dunn’s recantation was not credible and
that other unspecified evidence supported Hatton’s conviction.
{¶ 48} Hatton’s 2019 motion for leave to file a motion for a new trial and
his 2019 petition for postconviction relief included a 1998 memo from the state’s
DNA expert to the county prosecutor that had not previously been disclosed to
Hatton. In the memo, the expert admits that the DNA samples from Hatton’s trial
included DNA from a male other than Hatton or Dunn. Hatton’s motion and
petition also included police reports from January 1997 that were provided to
Hatton in response to his April 2019 public-records request. The reports indicate
that the investigating detectives found Dunn to be completely lacking in credibility
and that although Dunn had identified Hatton as the second perpetrator, the
detectives, after consulting with the county prosecutor, determined that the most
they could do with that information was to have Hatton appear in a live lineup. The
reports make clear that the detectives and the county prosecutor did not believe that
there was adequate evidence at that point to file charges against Hatton. However,
one of the reports states that a municipal-court judge had called the police
department and demanded that charges be filed against Hatton. One of the
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detectives filed criminal complaints against Hatton in the Circleville Municipal
Court the same day.
{¶ 49} The trial court denied Hatton’s 2019 motion and petition without a
hearing. The trial court concluded that Hatton’s arguments were barred by res
judicata, that there was no new evidence in the case, and that the DNA evidence
was not essential to the conviction, because the jury had convicted him “on a
plethora of additional evidence.”
{¶ 50} When presented with each individual claim or bit of evidence to
support Hatton’s requests for postconviction review, the trial judge did not deem it
necessary to test the veracity of each in light of all the other evidence. But looking
at all of Hatton’s postconviction efforts together, we now have (1) a statement from
one of Dunn’s cellmates indicating that Dunn had told him that he had perjured
himself during Hatton’s trial, (2) an affidavit from a DNA expert indicating that the
state’s DNA testing procedures were scientifically unacceptable, (3) a recantation
by Dunn—the only person who identified Hatton as the second perpetrator and the
state’s star witness, (4) police reports showing that charges were filed against
Hatton only because a judge had insisted that charges be filed and that the detectives
and prosecutor who had reviewed the evidence had not believed it was sufficient to
charge him, (5) repeated requests by Hatton for DNA testing, (6) unwavering
claims of innocence by Hatton, and now (7) a written statement from the state’s
DNA expert stating that the DNA samples include male DNA that could not have
come from Hatton or Dunn. Hatton has not established a right to relief on his
claims, but he has presented evidence that if true would merit a new trial. The trial
court’s refusal to hold an evidentiary hearing on Hatton’s claims at this point is
unreasonable.
{¶ 51} We try to get as close as we can to the truth through the many rules,
the many roles, and the many participants involved in jury trials. But after a trial
concludes with a verdict, any subsequent arguments regarding the truth-finding
20
January Term, 2022
process are made to the trial judge alone. Judges are not exempt from the normal
human tendency to interpret new evidence in a way that confirms one’s already
existing beliefs—known as confirmation bias—and a trial judge who presided over
a defendant’s trial “cannot help but carry any bias from the original case into the
consideration of the post-conviction claim,” Frank Tankard, Tough Ain’t Enough:
Why District Courts Ignore Tough-on-Paper Standards for a Federal Prisoner’s
Right to a Hearing and How Specialty Courts Would Fix the Problem, 79 UMKC
L.Rev. 775, 777 (2011). Confirmation bias is not the same as judicial bias, but it
poisons judicial decision-making all the same. For this reason, among others, I
believe that statewide reforms are in order for postconviction claims of actual
innocence.
{¶ 52} In a July 2022 report, the Ohio Task Force on Conviction Integrity
and Postconviction Review recommended such reforms to Ohio’s postconviction-
review process. Report and Recommendations, available at
https://www.supremecourt.ohio.gov/docs/Boards/CIPR/Report.pdf (accessed Oct.
19, 2022) [https://perma.cc/97RM-THBP]. Among other suggested changes, the
task force recommends the creation of an Independent Innocence Inquiry
Commission and amendments to the statutes governing postconviction petitions,
R.C. 2953.21 and 2953.23. State Representative David Leland recently proposed
new legislation to the General Assembly that incorporates these reforms. 2022 H.B.
No. 738 (as introduced), chrome-extension://ieepebpjnkhaiioojkepfniodjmjjihl
/data/pdf.js/web/viewer.html?file=https%3A%2F%2Fsearch-prod.lis.state.oh.us
%2Fsolarapi%2Fv1%2Fgeneral_assembly_134%2Fbills%2Fhb738%2FIN%2F00
%2Fhb738_00_IN%3Fformat%3Dpdf (accessed October 31, 2022); see also Rep.
Leland to introduce bill addressing wrongful convictions (Oct. 11, 2022),
https://ohiohouse.gov/members/david-leland/news/rep-leland-to-introduce-bill-
addressing-wrongful-convictions-112149 (accessed Oct. 19, 2022)
[https://perma.cc/9W7N-JAQB]. The task force also drafted a proposed criminal
21
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rule, Crim.R. 33.1, which I hope will be advanced for review and consideration by
this court’s Commission on the Rules of Practice and Procedure. Report and
Recommendations at 1. It is my sincere hope that this court and the General
Assembly give serious consideration to these proposals for reform.
{¶ 53} Under these reforms, a petitioner claiming innocence would not need
to struggle through multiple layers of review to finally get four or more justices at
this court to hold that a nonfrivolous request for postconviction review should
proceed to an evidentiary hearing. Instead, a hearing would be required for all
nonfrivolous claims of innocence that include evidence that was not proffered
during the original proceedings. And if the Independent Innocence Inquiry
Commission comes to fruition, a petitioner’s claims would not remain solely at the
mercy of the adversarial process and a judge who previously presided over the
matter. Instead, petitioners would be able to present their claims to an independent
truth-seeking body that is not susceptible to confirmation bias and that bears
allegiance to nothing other than the truth.
{¶ 54} Amending the statutes governing postconviction petitions and
adopting Crim.R. 33.1 would ensure for all convicted people claiming innocence
the same opportunities for evidentiary hearings and substantive review that the
majority is ensuring through this decision for Hatton. I fully join the majority
opinion.
BRUNNER, J., concurs in the foregoing opinion.
_________________
Judy C. Wolford, Pickaway County Prosecuting Attorney, and Jayme
Hartley Fountain, Assistant Prosecuting Attorney, for appellee.
The Behal Law Group, L.L.C., and John M. Gonzales, for appellant.
_________________
22 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482838/ | [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Ames v. Dublikar, Beck, Wiley & Mathews, Slip Opinion No. 2022-Ohio-3990.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2022-OHIO-3990
THE STATE EX REL. AMES, APPELLANT, v. BAKER, DUBLIKAR, BECK, WILEY &
MATHEWS ET AL., APPELLEES.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Ames v. Dublikar, Beck, Wiley & Mathews, Slip
Opinion No. 2022-Ohio-3990.]
Mandamus—Public records—Private entities may be subject to public-records law
under quasi-agency test—Under Civ.R. 12(B)(6), a court must presume that
a complaint’s factual allegations are truthful and draw all reasonable
inferences in the nonmovant’s favor—Court of appeals departed from the
Civ.R. 12(B)(6) standard—Judgment reversed and cause remanded.
(No. 2022-0170—Submitted July 12, 2022—Decided November 10, 2022.)
APPEAL from the Court of Appeals for Portage County, No. 2021-P-0046.
_________________
Per Curiam.
{¶ 1} Appellant, Brian M. Ames, appeals the judgment of the Eleventh
District Court of Appeals dismissing his petition for a writ of mandamus against
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appellees, Baker, Dublikar, Beck, Wiley & Mathews (“the Baker firm”), Public
Entity Risk Services of Ohio (“PERSO”), and the Ohio Township Association Risk
Management Authority (“OTARMA”). Ames brought his action under Ohio’s
Public Records Act, R.C. 149.43, to obtain unredacted copies of invoices that the
Baker firm had prepared for PERSO. The court of appeals dismissed Ames’s
petition, determining that he was not entitled to the writ, because the information
the Baker firm had redacted was protected by the attorney-client privilege. We
conclude that the court of appeals did not properly apply the standard of review in
dismissing Ames’s petition, and we therefore reverse the judgment and remand this
cause to the court of appeals with instructions that it conduct an in camera
inspection of the contested invoices.
I. BACKGROUND
{¶ 2} Ames set forth the following facts in his amended petition. Ames is
a resident of Portage County, in which Rootstown Township is located. OTARMA
is a governmental risk-sharing pool with Ohio townships, including Rootstown
Township, as members. PERSO is an Ohio for-profit corporation that provides
claim-handling services to OTARMA and its members. And the Baker firm
provides legal services to PERSO, documenting the services it provides in invoices
addressed to PERSO.
{¶ 3} Prior to making the public-records request that is the basis for this
case, Ames had brought multiple actions against the Rootstown Township Board
of Trustees (“Rootstown”) alleging violations of Ohio’s Open Meetings Act, R.C.
121.22. In response to those actions, Rootstown filed three claims with PERSO.
In turn, the Baker firm provided legal services to PERSO related to those claims.
{¶ 4} In April 2021, Ames emailed a public-records request to James F.
Mathews, an attorney at the Baker firm who had defended Rootstown against
Ames’s prior actions, and David P. McIntyre, the Rootstown Township Board of
Trustees’ chairman. Ames sought “copies of the invoices for legal services
2
January Term, 2022
provided to [Rootstown] by [OTARMA] and [PERSO] for [nine] cases.” The
Baker firm provided the invoices but redacted the narrative portions, citing legal
authority holding that the narratives were protected from disclosure under the
attorney-client privilege. After Ames received the redacted records, he emailed a
second records request to the Baker firm and McIntyre specifying that he wanted
unredacted copies of the records he had originally received. The Baker firm refused
his request for unredacted records.
{¶ 5} Ames then filed a petition in the court of appeals, seeking a writ of
mandamus ordering appellees to produce unredacted copies of the records he had
requested. Each appellee moved for dismissal under Civ.R. 12(B)(6). The court of
appeals determined that appellees were subject to the Public Records Act despite
their private-party status, but it nevertheless dismissed Ames’s petition on the
ground that the narrative portions of itemized attorney-fee billing statements
containing descriptions of legal services performed by counsel for a client are
protected by the attorney-client privilege. See 2022-Ohio-171, ¶ 19, 39. This
appeal followed.
II. ANALYSIS
A. PERSO is not immune from suit1
{¶ 6} As a threshold matter, PERSO argues that a private entity like itself
should not be subject to the Public Records Act simply because it conducts business
with a public entity. PERSO insists that in reaching a contrary conclusion, the court
of appeals misread this court’s decision in State ex rel. Armatas v. Plain Twp. Bd.
of Trustees, 163 Ohio St.3d 304, 2021-Ohio-1176, 170 N.E.3d 19.2
1. OTARMA and the Baker firm do not argue, as PERSO does, that they are immune from suit
under the Public Records Act.
2. PERSO also notes this court’s citation in Armatas to State ex rel. Bell v. Brooks, 130 Ohio St.3d
87, 2011-Ohio-4897, 955 N.E.2d 987. In Bell, we determined that a joint self-insurance pool was
not the functional equivalent of a public office. Id. at ¶ 26. But the court of appeals here rested its
3
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{¶ 7} In Armatas, the relator brought a mandamus action against a
township’s trustees, seeking the production of invoices for legal services that had
been performed on the township’s behalf. Armatas involved the same entities that
Ames has sued here: the Baker firm had been hired and supervised by PERSO on
behalf of OTARMA, to which Plain Township belonged. In determining whether
the township could be required to produce legal-services invoices, this court applied
the quasi-agency test. Armatas at ¶ 14-22. Traditionally, that test required—in
order for a relator in an R.C. 149.43 mandamus action to be entitled to relief—a
determination that “(1) a private entity prepare[] records in order to carry out a
public office’s responsibilities, (2) the public office [be] able to monitor the private
entity’s performance, and (3) the public office ha[ve] access to the records for this
purpose,” State ex rel. Mazzaro v. Ferguson, 49 Ohio St.3d 37, 39, 550 N.E.2d 464
(1990). But based on our survey of the caselaw in Armatas, we applied a modified
version of this test and concluded that “when a requester has adequately proved the
first prong of the quasi-agency test, the requester has met his burden: proof of a
delegated public duty establishes that the documents relating to the delegated
functions are public records,” id. at ¶ 16.
{¶ 8} In Armatas, we determined that the township’s activities satisfied the
modified test. Id. at ¶ 22-23 (intervening subheading) (“The invoice at issue comes
under the township’s jurisdiction and documents procedures and operations that the
township delegated to OTARMA and PERSO”). We reasoned that PERSO’s
decision to hire attorneys for the township constituted a delegation of the
township’s duty to prosecute and defend itself against lawsuits, which necessarily
involves hiring and supervising attorneys. Id. at ¶ 19-20. And the invoices were a
means for the township, as the client of the lawyers hired by PERSO, to “protect
the public interest by knowing what and how its lawyers [were] being paid, to
decision on the quasi-agency test, not the functional-equivalency test. We accordingly limit our
discussion to the quasi-agency test.
4
January Term, 2022
ensure the quality of the representation.” Id. at ¶ 24. Although the township did
not possess the invoices, we nevertheless found that the invoices were “under the
township’s jurisdiction,” id.; see R.C. 149.011(G).
{¶ 9} It follows from Armatas that Rootstown has delegated a public duty
to PERSO. Here, as in Armatas, PERSO provides claim handling for OTARMA
and the Baker firm provides legal services to PERSO in connection with actions
that Ames brought against Rootstown. And the records in question relate to the
delegation of that duty.
{¶ 10} In Armatas, the relator sued the public body while here, Ames has
sued PERSO, OTARMA, and the Baker firm—but that distinction does not matter.
As this court recognized in Armatas, we have extended the quasi-agency test to
private entities, requiring them to produce public records. Id., 163 Ohio St.3d 304,
2021-Ohio-1176, 170 N.E.3d 19, at ¶ 15 (citing two prior decisions). Additionally,
the Public Records Act authorizes a mandamus action against either “a public office
or the person responsible for the public record,” R.C. 149.43(C)(1)(b). This
provision reflects the Public Records Act’s “intent to afford access to public
records, even when a private entity is responsible for the records.” Mazzaro, 49
Ohio St.3d at 39, 550 N.E.2d 464.
{¶ 11} In State ex rel. Toledo Blade Co. v. Ohio Bur. of Workers’ Comp.,
106 Ohio St.3d 113, 2005-Ohio-3549, 832 N.E.2d 711, this court concluded that a
newspaper company properly brought a mandamus action against two private
entities, reasoning that they were “ ‘person[s] responsible’ ” for the records in
question because all elements of the traditional, tripartite quasi-agency test were
met. (Brackets added.) Id. at ¶ 20-21, quoting R.C. 149.43(C). Under Toledo
Blade, then, PERSO may be sued under the Public Records Act when, as here, the
quasi-agency test is satisfied.
{¶ 12} It is true that PERSO did not prepare the records in question here;
the Baker firm did. Even so, this does not cut in PERSO’s favor. The relationships
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in this case among Rootstown, OTARMA, PERSO, and the Baker firm present a
more complicated picture than the paradigmatic case featuring records prepared and
possessed by a sole private entity. See, e.g., Mazzaro (private accounting firm
prepared and possessed the records). Given that PERSO is the recipient of records
relating to a public duty that Rootstown delegated to it, we conclude that it is a
proper party to this suit.
{¶ 13} Further, we decline to entertain PERSO’s request to revisit our
opinion in Armatas. PERSO argues that by jettisoning the second and third prongs
of the quasi-agency test, this court broke with precedent and opened the floodgates
to litigation against private entities. PERSO misses the mark. In assigning primacy
to the first prong in Armatas, we did not chart a new course; rather, as the opinion
says, we simply followed the logic of this court’s earlier decisions applying the
quasi-agency test. For instance, Armatas cites State ex rel. Gannett Satellite
Information Network v. Shirey, 78 Ohio St.3d 400, 403-404, 678 N.E.2d 557
(1997), in which we determined that a city’s inability to either monitor a
consultant’s performance or access the consultant’s records was not dispositive.
Armatas, 163 Ohio St.3d 304, 2021-Ohio-1176, 170 N.E.3d 19, at ¶ 17. And as
Armatas makes clear, this court has long permitted mandamus actions against
private entities under the Public Records Act. Moreover, PERSO does not cite any
cases to support its speculation that Armatas opened the floodgates. If that trickle
eventually turns into a flood, then the General Assembly can address it. See Kish
v. Akron, 109 Ohio St.3d 162, 2006-Ohio-1244, 846 N.E.2d 811, ¶ 44 (observing
that the General Assembly may alter—and in the past has altered—the Public
Records Act in response to a judicial interpretation it disagrees with).
{¶ 14} In summary, PERSO is not immune from a lawsuit brought under
the Public Records Act.
6
January Term, 2022
B. The court of appeals departed from the Civ.R. 12(B)(6) standard
{¶ 15} Under existing caselaw, an invoice for a legal service provided to a
public-office client is a public record, with the caveat that the narrative portion of
the invoice describing the service is protected from disclosure by the attorney-client
privilege. See Armatas at ¶ 13, citing State ex rel. Anderson v. Vermilion, 134 Ohio
St.3d 120, 2012-Ohio-5320, 980 N.E.2d 975, ¶ 13, and State ex rel. Dawson v.
Bloom Carroll Local School Dist., 131 Ohio St.3d 10, 2011-Ohio-6009, 959 N.E.2d
524, ¶ 26-28. Drawing on this precedent, the court of appeals concluded that
Ames’s request for unredacted invoices had failed to state any claim upon which
relief could be granted and found appellees’ motions to dismiss well-taken. 2022-
Ohio-171 at ¶ 35-44. In reaching this conclusion, the court of appeals departed
from the Civ.R. 12(B)(6) standard.
{¶ 16} As Ames correctly observes, a Civ.R. 12(B)(6) motion limits a court
to testing the sufficiency of the complaint and the materials incorporated into it.
State ex rel. Hanson v. Guernsey Cty. Bd. of Commrs., 65 Ohio St.3d 545, 548, 605
N.E.2d 378 (1992); State ex rel. Peoples v. Schneider, 159 Ohio St.3d 360, 2020-
Ohio-1071, 150 N.E.3d 946, ¶ 9. In this case, the materials incorporated into
Ames’s petition included redacted invoices sent to Ames by the Baker firm.
{¶ 17} In opposing appellees’ motions to dismiss, Ames argued to the court
of appeals that it was required to presume the truth of his allegation that “[t]here is
no attorney-client privileged information reflected on the invoices.” But the court
of appeals did the opposite: it concluded that the invoices contained privileged
information. 2022-Ohio-171 at ¶ 41, 53. That was error, because under Civ.R.
12(B)(6), a court must presume a complaint’s factual allegations are truthful and
draw all reasonable inferences in the nonmovant’s favor. See Clark v. Connor, 82
Ohio St.3d 309, 311, 695 N.E.2d 751 (1998).
{¶ 18} Because the court of appeals misapplied the Civ.R. 12(B)(6)
standard, we must reverse and remand for further proceedings. In doing so, we
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instruct the court of appeals on remand to conduct an in camera inspection of the
contested invoices. See State ex rel. Lanham v. DeWine, 135 Ohio St.3d 191, 2013-
Ohio-199, 985 N.E.2d 467, ¶ 22 (“the court has consistently required an in camera
inspection of records before determining whether the records are excepted from
disclosure”). Appellees’ suggestion that no such inspection is warranted because
Ames did not ask for one in his petition is not supported by apposite authority.
III. CONCLUSION
{¶ 19} We reverse the judgment of the court of appeals and remand the
cause with instructions that the court of appeals conduct an in camera inspection of
the contested invoices.
Judgment reversed
and cause remanded.
O’CONNOR, C.J., and KENNEDY, DEWINE, DONNELLY, STEWART, and
BRUNNER, JJ., concur.
FISCHER, J., dissents.
_________________
Brian M. Ames, pro se.
Baker, Dublikar, Beck, Wiley & Mathews, James F. Mathews, and Andrea
K. Ziarko, for appellee Baker, Dublikar, Beck, Wiley & Mathews.
Buechner, Haffer, Meyers & Koenig Co., L.P.A., Robert J. Gehring, and
Saba N. Alam, for appellee Ohio Township Association Risk Management
Authority.
Reminger Co., L.P.A., Patrick Kasson, and Thomas Spyker, for appellee
Public Entity Risk Services of Ohio.
_________________
8 | 01-04-2023 | 11-10-2022 |
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STATE V. MOORE
Cite as 312 Neb. 263
State of Nebraska, appellee, v.
Gregory Moore, appellant.
___ N.W.2d ___
Filed August 19, 2022. No. S-21-755.
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. Judgments: Statutes: Appeal and Error. To the extent an appeal calls
for statutory interpretation or presents questions of law, an appellate
court must reach an independent conclusion irrespective of the determi-
nation made by the court below.
3. Speedy Trial. The statutory right to a speedy trial is set forth in Neb.
Rev. Stat. §§ 29-1207 and 29-1208 (Reissue 2016).
4. ____. Periods excluded in computing the time for trial are identified in
Neb. Rev. Stat. § 29-1207(4) (Reissue 2016).
5. ____. When calculating the time for speedy trial purposes, 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.
6. ____. Nothing in the text of Neb. Rev. Stat. § 29-1207(4)(a) (Reissue
2016) requires that the “other proceedings concerning the defendant”
occur in the case in which the defendant alleges a statutory speedy trial
violation.
7. ____. Broadly construed, Neb. Rev. Stat. § 29-1207(4)(a) (Reissue
2016) applies to proceedings in the pending case as well as to proceed-
ings in other pending cases.
8. 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.
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STATE V. MOORE
Cite as 312 Neb. 263
Appeal from the District Court for Scotts Bluff County:
Andrea D. Miller, Judge. Affirmed.
Kelly S. Breen, of Nebraska Commission on Public
Advocacy, for appellant.
Douglas J. Peterson, Attorney General, and Jordan Osborne
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
INTRODUCTION
Gregory Moore appeals from the overruling of his motion
for discharge based upon Nebraska’s speedy trial statutes. 1
Moore contends the district court erred in excluding delay
related to his competency proceedings in a different case and
to his filing a motion to continue an arraignment. Because the
court did not err in excluding delay due to Moore’s incompe-
tency to stand trial, we affirm.
BACKGROUND
Information and Procedural History
This appeal originates from proceedings in the district court
for Scotts Bluff County in case No. CR20-730. On December
16, 2020, the State filed an information charging Moore with
second degree murder and use of a deadly weapon to commit
a felony for events occurring on November 25. The informa-
tion was filed on the same day that the same district court,
in case No. CR20-249, an otherwise unrelated felony case,
entered an order determining that Moore was incompetent to
stand trial.
On December 17, 2020, Moore filed a motion to con-
tinue the arraignment set for the next day. The motion stated
1
See Neb. Rev. Stat. §§ 29-1205 to 29-1209 (Reissue 2016).
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that within the next 2 weeks, Moore’s counsel would file
a written not guilty plea and waiver of appearance. The
motion requested that the matter be set for a status hearing in
February 2021.
On December 18, 2020, the court ordered that the written
plea be filed within 2 weeks or Moore “shall appear for an
arraignment on December 31.” The court’s order granting the
continuance of the arraignment struck through proposed lan-
guage stating “and defendant is ordered to appear on the ___
day of February, 2021 at ____ _.m. for Status Hearing.”
On December 23, 2020, Moore filed his written not guilty
plea. He requested that the court schedule a status hearing
within 60 days, but he did not send a proposed order for the
court to sign. The court did not set a status hearing.
Nearly 6 months later, on June 15, 2021, the State moved
for a status conference. The State attached to its motion a
December 16, 2020, order in case No. CR20-249 which found
Moore not competent to stand trial. According to the order,
Moore was to be committed to the Lincoln Regional Center
(LRC) for treatment to restore competency. The order further
provided that the court would hold a review hearing to assess
Moore’s competency every 60 days until either the disability
was removed or other disposition of Moore had been made.
The court scheduled the status conference for a hearing on
July 14.
At the beginning of the July 14, 2021, hearing, the court
stated that it was holding status hearings in both cases Nos.
CR20-249 and CR20-730. The court recited that Moore had
been sent to the LRC for a determination of competency, that
he had been evaluated, and that the court had received a July
1 report. According to the report, Moore remained incompe-
tent to stand trial.
In case No. CR20-249, the court received as evidence the
July 2021 report from the LRC. The court found that Moore
was continuing to receive treatment at the LRC, noted the
recommendation that Moore remain at the LRC “as he is still
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Cite as 312 Neb. 263
at this point not competent to stand trial,” stated that it would
continue to order his commitment to the LRC, and scheduled a
review hearing for September 14.
Turning to case No. CR20-730, the State offered the same
July 2021 report from the LRC. Moore’s counsel lodged a
relevancy objection, observing that competency proceedings
had not been instituted in case No. CR20-730. According
to Moore’s counsel, Moore had maintained that he acted in
self-defense at the time of the crimes charged in the instant
case. Moore’s counsel further stated that Moore understood
the function of a trial and the duties of the judge, prosecu-
tor, and jury. The court overruled the objection and received
the report.
Motion for Discharge and Hearing
Prior to the status hearing, on July 6, 2021, Moore filed a
motion for discharge. In August, the court held an evidentiary
hearing on the motion. Moore appeared by video from the
LRC. The parties collectively offered six exhibits, which the
court received.
One exhibit contained a certified copy of the file in case
No. CR20-249. That exhibit showed that in April 2020, the
State filed an information in Scotts Bluff County District Court
charging Moore with terroristic threats, third degree assault,
and use of a deadly weapon to commit a felony. Pursuant to
Moore’s suggestion of incompetency, the court ordered an
evaluation and later set a competency hearing for December
15. The exhibit contained the court’s December 16 order find-
ing Moore incompetent to stand trial.
The court received into evidence a November 25, 2020,
evaluation of Moore. The court had ordered the evaluation
to address Moore’s capacity to proceed to trial in case No.
CR20-249. The evaluator opined:
Moore currently lacks the ability to understand the factual
components of the legal proceedings, he does not pres-
ently maintain sufficient ability to apply that knowledge
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to his own case in a rational manner or meaningfully
assist his attorney in his own defense as a result of his
ongoing symptoms of mental illness.
(Emphasis in original.)
District Court’s Order
The court overruled Moore’s motion for discharge. It excluded
from the speedy trial calculation the time from December 17,
2020, through July 14, 2021, under § 29-1207(4)(b) and (f).
The court stated that Moore requested a continuance but did
not provide a written order approving the waiver, nor did
Moore file anything asking that the waiver be approved. Thus,
the court found that the delay resulted from “Moore’s inac-
tion to file the acceptance of waiver and/or failure to set a
status hearing.”
The court also excluded the time between December 17,
2020, through the date of its September 13, 2021, order under
§ 29-1207(4)(a) and (d). It determined that the State showed
Moore was found to be incompetent to stand trial in case
No. CR20-249. The court reasoned that because Moore had
been found incompetent in that case, he could not “argue that
he is competent to stand trial in this case.” The court further
stated that Moore’s commitment to the LRC by the court’s
order in case No. CR20-249 made him “unavailable” in the
instant case.
Moore filed a timely appeal. We granted the State’s petition
to bypass review by the Nebraska Court of Appeals. 2
ASSIGNMENTS OF ERROR
Moore assigns, reordered, that the court erred in (1) “hold-
ing that the time delay herein was the result of other proceed-
ings and unavailability of [Moore] caused by competency
proceedings instituted in [case No. CR20-249]” and (2) “hold-
ing that the time delay herein was caused by [Moore’s] filing
2
See Neb. Rev. Stat. § 24-1106(2) (Cum. Supp. 2020).
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of a motion to continue the arraignment set for December 18,
2020[,] and subsequently filing a written waiver of appearance
and not guilty plea on December 23.”
STANDARD OF REVIEW
[1] 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. 3
[2] To the extent an appeal calls for statutory interpretation
or presents questions of law, an appellate court must reach an
independent conclusion irrespective of the determination made
by the court below. 4
ANALYSIS
Speedy Trial Principles
[3] The statutory right to a speedy trial is set forth in
§§ 29-1207 and 29-1208. 5 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. 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
[4,5] Periods excluded in computing the time for trial are
identified in § 29-1207(4). When calculating the time for
speedy trial purposes, the State bears the burden to show, by
the greater weight of the evidence, that one or more of the
3
State v. Bixby, 311 Neb. 110, 971 N.W.2d 120 (2022).
4
Id.
5
State v. Abernathy, 310 Neb. 880, 969 N.W.2d 871 (2022).
6
Id.
7
Id.
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Cite as 312 Neb. 263
excluded time periods under § 29-1207(4) are applicable. 8
Pertinent to this appeal, the following periods are excludable:
(a) The period of delay resulting from other proceed-
ings concerning the defendant, including, but not limited
to, an examination and hearing on competency and the
period during which he or she is incompetent to stand
trial; the time from filing until final disposition of pretrial
motions of the defendant, including motions to suppress
evidence, motions to quash the indictment or informa-
tion, demurrers and pleas in abatement, and motions for
a change of venue; and the time consumed in the trial of
other charges against the defendant;
(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 without counsel shall
not be deemed to have consented to a continuance unless
he or she has been advised by the court of his or her right
to a speedy trial and the effect of his or her consent. A
defendant who has sought and obtained a continuance
which is indefinite has an affirmative duty to end the con-
tinuance by giving notice of request for trial or the court
can end the continuance by setting a trial date. When the
court ends an indefinite continuance by setting a trial
date, the excludable period resulting from the indefinite
continuance ends on the date for which trial commences.
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;
....
(d) The period of delay resulting from the absence or
unavailability of the defendant;
8
State v. Hernandez, 309 Neb. 299, 959 N.W.2d 769 (2021).
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....
(f) Other periods of delay not specifically enumerated
in this section, but only if the court finds that they are for
good cause. 9
We consider the potential application of these subsections in
resolving whether the court erred in overruling Moore’s motion
for discharge.
Overruling of Motion for Discharge
The district court excluded two periods of delay in comput-
ing the time for trial. Each period began running on the day
following the filing of the information and remained running
when Moore filed his motion for discharge. We start with the
court’s finding pertaining to competency proceedings in case
No. CR20-249.
Moore argues that the court erred in finding that the delay
was both the result of other proceedings and unavailability
caused by competency proceedings, when those proceedings
were instituted in a different case. We disagree. As explained
below, the district court did not err in finding the delay exclud-
able under § 29-1207(4)(a).
Delays associated with competency are typically excluded
from the speedy trial clock. 10 When a person becomes men-
tally incompetent after committing an offense, Nebraska law
forbids trying the person for the offense until the disability
is removed. 11 Thus, it would be illogical to force the State to
bring an incompetent defendant to trial within 6 months when
the defendant could not be subjected to a criminal trial. The
twist in this case is that the competency proceedings and find-
ing of incompetency occurred in a different criminal case.
9
§ 29-1207(4).
10
See § 29-1207(4)(a).
11
See Neb. Rev. Stat. § 29-1822(1) (Cum. Supp. 2020). See, also, Cooper
v. Oklahoma, 517 U.S. 348, 116 S. Ct. 1373, 134 L. Ed. 2d 498 (1996)
(criminal trial of incompetent defendant violates due process).
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In considering whether time associated with competency
proceedings in a different case is excludable, we start with the
plain text of § 29-1207(4)(a). It provides that “delay resulting
from other proceedings concerning the defendant, including,
but not limited to, an examination and hearing on compe-
tency and the period during which he or she is incompetent
to stand trial” is an excludable period of time for speedy
trial purposes. 12
[6] Nothing in the text of § 29-1207(4)(a) requires that the
“other proceedings concerning the defendant” occur in the
case in which the defendant alleges a statutory speedy trial
violation. By including the clause “the time consumed in the
trial of other charges against the defendant,” § 29-1207(4)(a)
specifically contemplates excluding time due to proceedings in
a different case.
[7] Though not in the context of competency proceedings,
we have considered the impact of a delay related to a defend
ant’s other criminal case on his or her speedy trial rights. In
State v. Blocher, 13 we affirmed the district court’s determina-
tion that time the defendant spent incarcerated in a different
county on different charges was properly attributable to her
under § 29-1207(4)(d). We observed that at least a portion of
the same period—time when the defendant was incarcerated in
the other county during the pendency of charges against her—
would be properly excluded under § 29-1207(4)(a). We stated,
“Broadly construed, § 29-1207(4)(a) applies to proceedings in
the pending case as well as to proceedings in other pending
cases . . . .” 14
Here, the State adduced evidence of Moore’s incompetency
to stand trial. The certified copy of the transcript in case No.
CR20-249, received during the hearing on the motion for
12
§ 29-1207(4)(a) (emphasis supplied).
13
State v. Blocher, 307 Neb. 874, 951 N.W.2d 499 (2020).
14
Id. at 881, 951 N.W.2d at 504.
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discharge, contained the district court’s December 16, 2020,
order finding that Moore was not competent to stand trial and
committing him to the LRC. It also included the court’s July
19, 2021, journal entry which stated that it reviewed the com-
petency report and which set case No. CR20-249 for a further
competency review hearing in September. Moreover, during
the July 14 status hearing, the court received in the instant case
the July 2021 report opining that Moore was not competent to
stand trial.
We are also mindful of the particular circumstances of this
case related to the incompetency finding. On the same day that
the State filed in the district court for Scotts Bluff County the
information against Moore in the instant case, the same district
court entered an order finding Moore to be incompetent in case
No. CR20-249. The record shows that the same judge handled
both of the criminal cases against Moore. While perhaps the
State could have taken additional steps to establish Moore’s
incompetency for purposes of the record in the instant case,
the court and counsel for both parties knew that the court
committed Moore to the LRC and that the court found Moore
incompetent to stand trial at or about the time the instant case
was bound over to district court.
Under the facts of this case, the State proved by the greater
weight of the evidence that time should be excluded under
§ 29-1207(4)(a). We conclude the court properly excluded
from the speedy trial clock the period of delay from December
17, 2020, through the time of the court’s September 13, 2021,
order due to Moore’s incompetency to stand trial.
[8] We need not resolve whether the district court prop-
erly determined that the same period of delay and that a
shorter period of delay were also excluded from the speedy
trial calculation. Moore challenges findings that the delay
from December 17, 2020, through September 13, 2021, was
excluded due to his “absence or unavailability” and that the
delay from December 17, 2020, through July 14, 2021, was
caused by Moore. But even if the court erred with respect to
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either of those periods of delay, which we do not suggest or
imply, the same period was already properly excluded due to
Moore’s incompetency to stand trial. An appellate court is not
obligated to engage in an analysis that is not necessary to adju-
dicate the case and controversy before it. 15
CONCLUSION
The district court found Moore incompetent to stand trial
in a different case on or about the time that the State filed the
information in the instant case in the same court. We conclude
that the State proved by the greater weight of the evidence
that the period during which Moore was incompetent to stand
trial should be excluded in computing the time for trial in the
instant case. Accordingly, we find no error in the overruling
of Moore’s motion for discharge, and we affirm the district
court’s order.
Affirmed.
15
Nebraska Republican Party v. Shively, 311 Neb. 160, 971 N.W.2d 128
(2022).
Miller-Lerman, J., concurring.
I concur in the majority opinion of the court and write
separately only to address some confusion, the resolution of
which is not necessary to the rationale upon which this speedy
trial appeal is decided but could be impactful under a different
set of facts. The confusion arises as to when the district court
accepted Moore’s written plea of not guilty submitted under
Neb. Rev. Stat. § 29-4206 (Reissue 2016) and thus waived
arraignment and ended any continuances sought in relation
thereto. Specifically, I think it prudent to counsel trial courts
against being casual regarding the court’s duty to accept (or
reject) a written plea tendered under § 29-4206.
Section 29-4206(1) provides, inter alia, that “district courts
may accept a written . . . plea of not guilty.” In this case, on
December 18, 2020, the court ordered, inter alia, that a written
plea be filed within 2 weeks. On December 23, Moore filed a
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written not guilty plea. In its September 13, 2021, order deny-
ing Moore’s motion for discharge, the district court stated,
inter alia, that although Moore filed his written not guilty plea,
after doing so, he “did nothing to gain approval of the District
Court” and that such delay is attributable to “Moore’s inac-
tion.” Although it may be the custom in trial courts to assume
the written not guilty plea has been accepted and only rejection
of written not guilty pleas are done in writing, I do not think
this custom is faithful to the statute and results in ambiguity,
and the absence of a ruling should not be chargeable against
the defendant.
Apart from circumstantial indications, we do not know when
Moore’s not guilty plea was accepted, and the answer does not
change the outcome under the facts and our resolution of this
case. However, and especially where written pleas are invited,
I would urge the trial courts to make a ruling under § 29-4206
on a date certain indicating when the written not guilty plea
was accepted—or perhaps rejected—so that the parties and
the trial court can incorporate such date in their speedy trial
calculations, which would be especially useful in another case
where the date matters.
Heavican, C.J., joins in this concurrence. | 01-04-2023 | 11-10-2022 |
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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 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482839/ | [Cite as State v. Reed, 2022-Ohio-3986.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-200104
TRIAL NO. B-1902448
Plaintiff-Appellee, :
: O P I N I O N.
VS.
:
ANTONIO REED, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 9, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, David Hoffmann, Assistant
Public Defender, and Krista Gieske, Assistant Public Defender, for Defendant-
Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
CROUSE, Judge.
{¶1} In February 2020, defendant-appellant Antonio Reed was convicted of
trafficking in a fentanyl-related compound, in violation of R.C. 2925.03(A)(2), a first-
degree felony. Reed was sentenced to an indefinite term of five to seven-and-one-half
years under R.C. 2929.14(A)(1)(a).
{¶2} In his first assignment of error, Reed argues that the trial court erred by
denying his motion to suppress evidence seized during an unconstitutional search of
his person.
{¶3} In his second assignment of error, Reed argues that the trial court erred
in sentencing him pursuant to the indefinite-sentencing scheme established under
2018 Am.Sub.S.B. 201, identified under R.C. 2901.011 as the Reagan Tokes Law,
because the law is facially unconstitutional under the Ohio and United States
Constitutions. For the following reasons, we overrule both assignments of error and
affirm the judgment of the trial court.
I. Procedural History
{¶4} In May 2019, a grand jury indicted Reed on four counts of trafficking in
and possession of fentanyl and fentanyl-related compounds. Reed filed a motion to
suppress evidence of drugs collected at the time of his arrest based on Reed’s claim
that his Fourth Amendment rights were violated. After a hearing, the trial court denied
the motion.
{¶5} Reed subsequently pled no contest to the charges and the four counts
merged at sentencing into a single violation of R.C. 2925.03(A)(2) for trafficking in a
fentanyl-related compound. The trial court sentenced Reed under the Reagan Tokes
Law to an indefinite term of five to seven-and-one-half years. This timely appeal
2
OHIO FIRST DISTRICT COURT OF APPEALS
followed.
II. Factual History
{¶6} The testimony at the suppression hearing revealed that for
approximately one year, members of the Gang Enforcement Unit of the Cincinnati
Police Department (“CPD”) and the Drug Enforcement Administration had been
investigating a man named Damien Dennis for drug trafficking. According to Officer
Tom Weigand of the CPD, who was part of the investigation team, Dennis was a “high-
level drug trafficker dealing in large quantities of drugs” who “got his supply directly
from Mexico.” Over the course of the investigation, CPD intercepted various packages
intended for Dennis and seized hundreds of thousands of dollars from his car, bank
accounts and safety deposit box.
{¶7} Weigand learned during the investigation that Dennis often went to a
particular gas station on Vine Street in Cincinnati. While there, Weigand had observed
on a handful of occasions that Dennis would sit in his car at a gas pump, another
person would get into Dennis’s car, an exchange would take place, the other person
would exit from the car, and then both would drive away. During these exchanges,
neither Dennis nor the other person would engage in any business with the gas station.
Weigand testified that based on his 18 years with the CPD, including five years in the
Gang Enforcement Unit, he recognized this as a common pattern for drug-trafficking
interactions.
{¶8} On May 7, 2019, Weigand was on duty in plainclothes tracking Dennis.
Weigand observed Dennis pull up to a gas pump at the Vine Street gas station.
Weigand saw another car pull up to the gas pump next to Dennis. Weigand then
watched Reed get out of the second car and enter Dennis’s car. Weigand saw Reed and
3
OHIO FIRST DISTRICT COURT OF APPEALS
Dennis make an exchange of what Weigand “believed to be drugs,” although Weigand
admittedly could not see what was exchanged. After the exchange, Reed got out of
Dennis’s car and returned to his own. Then both cars left the gas station. Weigand did
not see the occupants of either vehicle engage in any business with the gas station.
Weigand believed that Dennis had just sold drugs to Reed because he knew from his
investigation that Dennis received his supply in bulk from Mexico.
{¶9} As Reed drove away, Weigand radioed his observations to uniformed
officers in marked patrol cars. Weigand testified that he requested that the uniformed
officers conduct a traffic stop of Reed’s vehicle “due to the fact that we had probable
cause to believe that a drug transaction just took place.” Weigand followed Reed’s car
to the parking lot of an apartment building. Reed parked, with Weigand close by, and
Weigand radioed for the uniformed officers to close in.
{¶10} Reed was getting out of his car when the uniformed officers rolled up
behind him in their patrol vehicles. One of the uniformed officers, Officer Charles
Knapp, ordered Reed to show his hands and asked him about any outstanding
warrants. Knapp testified that asking about warrants is a “tactic” he sometimes uses
to defuse the situation when dealing with people who are suspected of having
committed “serious felonies.” During this time, Knapp removed Reed from his car and
handcuffed him.
{¶11} After handcuffing Reed, Knapp patted Reed down, focusing on the area
near the rear of the waistband of Reed’s pants where Reed might be able to reach while
handcuffed. Knapp then moved Reed away from the door of Reed’s car and began a
second pat-down of Reed. Knapp did not find anything during either pat-down.
{¶12} The officers obtained Reed’s consent to search his vehicle and began
4
OHIO FIRST DISTRICT COURT OF APPEALS
their search of the vehicle. Meanwhile, Knapp restrained Reed while Weigand
conducted a thorough search of Reed’s person. After noticing an “unnatural bulge”
between Reed’s legs, Weigand shook Reed’s pants so that the item he felt would fall
down the leg of Reed’s pants. This led to Weigand’s recovery of a bag containing drugs.
{¶13} After Weigand discovered the bag of drugs, Reed was placed into
Knapp’s patrol vehicle. At no point during the interaction did anyone tell Reed he was
under arrest, nor was Reed informed of his Miranda rights.
III. Analysis
A. First Assignment of Error
{¶14} In his first assignment of error, Reed argues that his Fourth
Amendment right against unreasonable searches and seizures was violated by the
search of his person and therefore, the trial court erred in denying his motion to
suppress. Reed contends that at the time of the search, there was no probable cause to
search or arrest him and that the arrest was based upon evidence uncovered by the
illegal search. Lacking probable cause, Reed argues, the police were not authorized to
search Reed’s person beyond a limited pat-down for weapons.
{¶15} Appellate review of a motion to suppress presents a mixed question of
law and fact. State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71,
¶ 8. “When considering a motion to suppress, the trial court assumes the role of trier
of fact and is therefore in the best position to resolve factual questions and evaluate
the credibility of witnesses.” Id. We must accept the trial court’s factual findings if they
are supported by competent, credible evidence, but we review de novo the trial court’s
application of the law to those facts. Id.
5
OHIO FIRST DISTRICT COURT OF APPEALS
1. Reed did not waive his Fourth Amendment claim.
{¶16} As a preliminary matter, the state urges us to overrule Reed’s first
assignment of error because, the state contends, Reed waived the issue of probable
cause. The state argues that during the proceedings in the trial court, Reed did not
expressly claim that the police lacked probable cause to search or arrest him prior to
the search that uncovered the drugs.
{¶17} In Reed’s written motion to suppress, he argued that the search
uncovering the drugs exceeded the legitimate scope of a pat-down during a Terry stop.
See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The motion states
that argument was based on the state’s response to his motion for a bill of particulars,
which asserted that Reed was pulled over for a traffic stop. The state did not file a
written response to the motion to suppress. Nevertheless, Reed’s claim that the police
exceeded the scope of a Terry stop carries with it the implicit assertion that there was
no probable cause to support a full evidentiary search or arrest.
{¶18} Moreover, at the beginning of the suppression hearing, the judge
summarized the written suppression motion as follows: “[T]he defense’s position is
that Mr. Reed was not under arrest and was beyond a Terry stop.” The trial court went
on to state:
During the off-record conversation, the prosecutor’s
position is that the police had Mr. Reed under
surveillance, observed what they believed to be illegal
drug activity that would rise to the level of a felony, in
which case the stop was effected by the observation of law
enforcement; and, at that particular point in time, that
6
OHIO FIRST DISTRICT COURT OF APPEALS
Mr. Reed was being placed under arrest and being
searched pursuant to a legal, valid arrest.
{¶19} When asked by the court if it accurately summarized the parties’
positions, defense counsel and the prosecutor said that it did. Ultimately, based on the
testimony and arguments at the suppression hearing, the trial court found there was
probable cause to arrest Reed and the search was a proper search incident to the arrest.
{¶20} Because the issue of probable cause was fully litigated by the parties at
the suppression hearing, and considered by the trial court, we find that Reed did not
waive the lack of probable cause as grounds for appeal.
2. Reed’s search and arrest were supported by probable cause.
{¶21} The Fourth Amendment to the United States Constitution, as applied to
the states through the Fourteenth Amendment, prohibits the government from
“unreasonable searches and seizures.” Absent an applicable exception, warrantless
searches are per se unreasonable. State v. Bacher, 170 Ohio App.3d 457,
2007-Ohio-727, 867 N.E.2d 864, ¶ 8 (1st Dist.).
{¶22} One such exception to the warrant requirement is the search incident to
a lawful arrest. When a person is lawfully arrested, an officer may conduct a “full
search of the arrestee’s person” to search for evidence, not merely a protective pat-
down to uncover weapons. State v. Haynes, 1st Dist. Hamilton No. C-140205,
2015-Ohio-3432, ¶ 25, citing United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38
L.Ed.2d 427 (1973). Further, a search-incident-to-arrest need not follow the formal
arrest but may precede the arrest, so long as probable cause for arrest existed at the
time of the search and the search was contemporaneous with the arrest. State v.
Gilmore, 1st Dist. Hamilton Nos. C-070521 and C-070522, 2008-Ohio-3475, ¶ 14,
7
OHIO FIRST DISTRICT COURT OF APPEALS
citing Rawlings v. Kentucky, 448 U.S. 98, 111, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980).
{¶23} Probable cause for a warrantless arrest exists when, based on the totality
of the circumstances, “ ‘the arresting officer, at the time of the arrest, possess[es]
sufficient information that would cause a reasonable and prudent person to believe
that a criminal offense has been or is being committed.’ ” State v. Acoff,
2017-Ohio-8182, 100 N.E.3d 87, ¶ 11 (1st Dist.), quoting State v. Elmore, 111 Ohio
St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 39. Establishing probable cause
“ ‘requires only a probability or substantial chance of criminal activity, not an actual
showing of such activity.’ ” State v. Thorton, 1st Dist. Hamilton Nos. C-170586 and
C-170587, 2018-Ohio-2960, ¶ 21, quoting Illinois v. Gates, 462 U.S. 213, 103 S.Ct.
2317, 76 L.Ed.2d 527 (1983), fn. 13. Probable cause is a “practical, nontechnical
concept.” Gates at 287. It does not require officers to rule out an innocent explanation
for suspicious facts. Thorton at ¶ 22.
{¶24} Similar to the case at bar, this court reviewed a probable-cause
determination in Gilmore, 1st Dist. Hamilton Nos. C-070521 and C-070522,
2008-Ohio-3475. In that case, a Cincinnati police officer was conducting undercover
surveillance in an area known to have a high level of drug-trafficking activity. Id. at
¶ 5. The officer watched as a van pulled up to a building, and a man left the building to
approach the van. Id. The man spoke with the driver of the van, then briefly went back
into the building before returning to the van. Id. The man got in the van, which
proceeded to drive around the block. Id. When the van returned, the man got out of
the van and walked away. Id. The officer testified based on his 20 years of experience,
this pattern was suggestive of a drug transaction. Id. at ¶ 6. As a result, the Gilmore
court found that there was sufficient probable cause to arrest the driver of the van
8
OHIO FIRST DISTRICT COURT OF APPEALS
where the high level of drug activity in the area coincided with the officer’s testimony
about the established pattern of behavior indicating a drug transaction. Id. at ¶ 12-13.
{¶25} Further, probable cause does not require the police to actually witness
the drug transaction at all where there is sufficient circumstantial evidence to
demonstrate a fair probability that such a transaction has occurred. State v. Whitt, 2d
Dist. Clark No. 2010 CA 3, 2010-Ohio-5291, ¶ 25. In Whitt, the police had engaged in
a series of controlled drug buys through a confidential informant (“CI”). Id. at ¶ 4.
Initially, the focus of the investigation was on the dealer who sold drugs to the CI. Id.
However, the investigating detective came to believe that Whitt was the supplier who
provided the drugs to the dealer. Id. In two of the four controlled buys, the CI gave
money to the dealer, then the dealer interacted with Whitt at Whitt’s residence, and
after that, the dealer provided the drugs to the CI. Id. at ¶ 5 and 7. In the other two,
the dealer was seen interacting with Whitt immediately before or shortly after the
dealer sold drugs to the CI. Id. at ¶ 6 and 8. Although the investigating officers did not
observe Whitt participating in any “ ‘hand-to-hand’ drug transactions,” the court
nonetheless found that the pattern of behavior of the CI, the dealer, and Whitt, taken
together, created probable cause that Whitt had supplied the drugs to the dealer. Id.
at ¶ 25.
{¶26} Here, the trial court found that Weigand was surveilling Dennis, a
known drug dealer that had been under investigation for almost a year. Weigand saw
Reed and Dennis make an exchange in Dennis’s car, parked at a gas pump without
engaging in any business with the gas station. In Weigand’s experience, this pattern
was consistent with the pattern that had been established for Dennis’s drug
transactions. It does not matter that Weigand did not see drugs or know for sure that
9
OHIO FIRST DISTRICT COURT OF APPEALS
drugs were exchanged because probable cause “requires only a probability or
substantial chance of criminal activity, not an actual showing of such activity.” State
v. Jordan, 2020-Ohio-689, 145 N.E.3d 357, ¶ 11 (1st Dist.).
{¶27} We hold that Weigand had probable cause to arrest Reed following the
observed transaction at the gas station, and when Weigand communicated the basis
for his probable cause to Knapp and the other uniformed officers, any of the officers
could lawfully stop Reed and initiate his arrest. See Gilmore, 1st Dist. Hamilton Nos.
C-070521 and C-070522, 2008-Ohio-3475, at ¶ 13. Even assuming that Reed was not
arrested until after the challenged search, a search is still a lawful search incident to
arrest so long as probable cause existed at the time of the search and was
contemporaneous with the arrest. Id. at ¶ 14. Regardless of the precise moment when
the arrest occurred during the police interaction with Reed, probable cause existed
prior to the start of the interaction, and the arrest was completed when Reed was
secured in the police vehicle within moments of the challenged search of Reed’s
person. We therefore conclude that the search was a valid search incident to Reed’s
lawful arrest.
{¶28} Reed cites State v. Eppinger, 74 Ohio App.3d 503, 599 N.E.2d 709 (8th
Dist.1991) in support of his argument that there was no probable cause to arrest him
prior to the search. However, Eppinger is distinguishable. In Eppinger, the Eighth
District held that police lacked reasonable suspicion to justify an investigatory Terry
stop of the defendant. Id. at 505. The detective in that case had observed “some kind
of exchange” take place where several people were gathered in a schoolyard. Id. at 504.
The police had recently received complaints of drug sales taking place at that location.
Id. The court held that the observed activity “did not amount to suspicious criminal
10
OHIO FIRST DISTRICT COURT OF APPEALS
activity.” Id. at 505. By contrast, in the instant case, Weigand observed Reed make an
exchange with a specific, known drug dealer. This exchange was not merely “some kind
of exchange” taking place in a gathered crowd. Rather, Weigand observed Reed
participating in an exchange following a peculiar, distinct pattern that his experience
and training told him was specifically indicative of contraband changing hands. Based
on the totality of the circumstances, we can clearly distinguish the facts in Eppinger
from those in the case at bar.
{¶29} Because the challenged search was supported by sufficient probable
cause and took place incident to Reed’s lawful arrest, we overrule Reed’s first
assignment of error.
B. Second Assignment of Error
{¶30} In his second assignment of error, Reed argues that the trial court erred
in sentencing him to an indefinite sentence pursuant to the Reagan Tokes Law because
the law is unconstitutional on its face as violative of the separation-of-powers doctrine,
substantive- and procedural-due-process protections, and equal-protection
principles.
{¶31} Reed failed to object to the constitutionality of the Reagan Tokes Law
before the trial court. Failure to raise a constitutional objection in the trial court waives
the issue, and “it need not be heard for the first time on appeal.” State v. Dixon, 1st
Dist. Hamilton No. C-210502, 2022-Ohio-3654, ¶ 3. The appellate court may
nonetheless review a challenge to the constitutionality of a statute for plain error. Id.
A “plain error” is one that is both “obvious and prejudicial” and would, if permitted,
“have a materially adverse effect on the character and public confidence in judicial
proceedings.” Id. at ¶ 14.
11
OHIO FIRST DISTRICT COURT OF APPEALS
{¶32} We have previously addressed a similar challenge to the Reagan Tokes
Law in State v. Guyton, 1st Dist. Hamilton No. C-190657, 2022-Ohio-2962. In Guyton,
we determined that the Reagan Tokes Law is constitutional on its face, rejecting claims
that the law violates separation of powers, due process, and equal protection. Id. at
¶ 69. Based on our holding in Guyton, we overrule Reed’s second assignment of error.
IV. Conclusion
{¶33} For the foregoing reasons, we overrule both of Reed’s assignments of
error and affirm the judgment of the trial court.
Judgment affirmed.
BOCK, J., concurs.
ZAYAS, P.J., concurs in part and dissents in part.
ZAYAS, P.J., concurring in part and dissenting in part.
{¶34} I agree with the majority opinion that the trial court properly denied
Reed’s motion to suppress, and that the Reagan Tokes Law is not facially
unconstitutional under separation-of-powers, equal-protection, and substantive-due-
process grounds. With respect to procedural due process, I respectfully dissent
because I agree with Judge Bergeron’s thoughtful dissent in Guyton at ¶ 107
(Bergeron, J., concurring in part and dissenting in part), that the notice and hearing
procedures under the Reagan Tokes Law violate the fundamental requirements of
procedural due process. I depart from this court’s precedent because “ ‘stare decisis’
does not apply with the same force and effect when constitutional interpretation is at
issue.” State v. Bodyke, 126 Ohio St.3d 266, 2010-Ohio-2424, 933 N.E.2d 753, ¶ 35-
37; State v. Hackett, 164 Ohio St.3d 74, 2020-Ohio-6699, 172 N.E.3d 75, ¶ 38 (Fischer,
J., concurring).
12
OHIO FIRST DISTRICT COURT OF APPEALS
Please note:
The court has recorded its entry on the date of the release of this opinion.
13 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482833/ | Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/10/2022 08:06 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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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 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482841/ | [Cite as In re J.H., 2022-Ohio-3987.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: J.H. : APPEAL NOS. C-210663
C-210664
: TRIAL NOS. 21-1860Z
21-1862Z
:
: O P I N I O N.
:
Appeals From: Hamilton County Juvenile Court
Judgments Appealed From Are: Affirmed in Part and Reversed in Part
Date of Judgment Entry on Appeal: November 9, 2022
Joseph T. Deters, Hamilton County Prosecutor, and Alex Scott Havlin, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,
Raymond T. Faller, Hamilton County Public Defender, and Jessica R. Moss, Assistant
Public Defender, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Presiding Judge.
{¶1} An early morning raid discovered defendant-appellant J.H. sleeping in
bed with a gun concealed in his pants. The juvenile court ultimately adjudged him
delinquent for carrying a concealed weapon and having a weapon under disability
(owing to an outstanding warrant). On appeal, J.H. challenges both adjudications
based on alleged evidentiary errors, as well as on sufficiency and manifest weight
grounds. Based on our review of the record, we hold that insufficient evidence
supported the weapons under disability adjudication because the state presented no
evidence that J.H. was a “fugitive from justice.” However, we reject J.H.’s various
challenges to his concealed weapons adjudication. We accordingly reverse the juvenile
court’s judgments in part and affirm them in part.
I.
{¶2} In the morning hours of June 24, 2021, forceful shouts broke the silence
in the bedroom wherein J.H. and a few of his friends lay fast asleep. The teenage boys
awoke to find themselves surrounded by glaring lights and guns held in their faces.
Members of the Cincinnati Police Department’s Fugitive Apprehension Unit had
entered the home on Clephane Avenue and found their way to the bedroom with the
hopes of locating J.H. The officers handcuffed and questioned each of the boys, then
identified J.H. and released the remaining boys. After one of the officers handcuffed
J.H., he noticed a gun in J.H.’s pocket. The officer then reached into J.H.’s pocket and
pulled out a teal-colored gun (along with an accompanying magazine). J.H. was
arrested and taken into custody without incident.
{¶3} Earlier that morning, Cincinnati Police Officer Scott Traufler had
received information that J.H. was at the Clephane house. According to the state, J.H.
2
OHIO FIRST DISTRICT COURT OF APPEALS
had a warrant out for his arrest for aggravated robbery, prompting the aforementioned
search and arrest of J.H. Defense counsel maintains that the warrant was improperly
issued after J.H. failed to show up for a pretrial hearing that did not require his
attendance in the first place.
{¶4} In September 2021, following a trial, a magistrate adjudicated J.H.
delinquent as to carrying a concealed weapon and having weapons under disability.
J.H. filed objections to the magistrate’s decision, and following the objections hearing,
the juvenile court overruled J.H.’s objections and adopted the magistrate’s
adjudication in pertinent part. A dispositional hearing ensued, with the court placing
J.H. on probation, giving him a suspended commitment to the Ohio Department of
Youth Services, ordering him to complete a residential treatment program, and
ordering that the firearm be forfeited. J.H. now appeals, presenting two assignments
of error. We discuss the assignments of error out of order for ease of discussion.
II.
{¶5} In a portion of his second assignment of error, J.H. challenges the
sufficiency of the evidence to support his adjudication for having weapons under
disability, as well as raising a manifest weight of the evidence claim. Specifically, J.H.
insists that the state presented insufficient evidence to establish that he was a fugitive
from justice, an essential element of his weapons under disability offense.
{¶6} In considering a sufficiency challenge, “the question is whether the
evidence presented, when viewed in a light most favorable to the prosecution, would
allow any rational trier of fact to find the essential elements of the crime beyond a
reasonable doubt.” State v. Dent, 163 Ohio St.3d 390, 2020-Ohio-6670, 170 N.E.3d
816, ¶ 15. We review sufficiency determinations de novo but “the court is not to weigh
3
OHIO FIRST DISTRICT COURT OF APPEALS
the evidence.” State v. McDonald, 1st Dist. Hamilton No. C-180310, 2019-Ohio-3595,
¶ 12; Dent at ¶ 15 (“[O]ur [sufficiency-of-the-evidence] review is de novo.”). And “in
conducting a sufficiency review, a reviewing court must consider all the evidence
admitted at trial, even improperly admitted evidence.” State v. Kareski, 137 Ohio
St.3d 92, 2013-Ohio-4008, 998 N.E.2d 410, ¶ 24, citing Lockhart v. Nelson, 488 U.S.
33, 34, 109 S.Ct. 285, 102 L.Ed.2d 265 (1998).
{¶7} As relevant to J.H.’s adjudication, pursuant to R.C. 2923.13(A)(1),
“unless relieved from disability under operation of law or legal process, no person shall
knowingly acquire, have, carry, or use any firearm or dangerous ordnance, if any of
the following apply: (1) the person is a fugitive from justice.” To be a fugitive from
justice, a defendant must have been charged with a prior offense for which he sought
to avoid capture and he must have “fled from justice.” In re J.T., 2014-Ohio-5062, 21
N.E.3d 1136, ¶ 22, 24 (1st Dist.). The burden rests on the state to prove beyond a
reasonable doubt that J.H. qualified as a fugitive from justice. Id. at ¶ 24.
{¶8} While no statutory definition of “fugitive from justice” exists, various
appellate districts, including our own, have endeavored to flesh out the concept, albeit
without uniformity in these approaches. In State v. Cherry, 171 Ohio App.3d 375,
2007-Ohio-2133, 870 N.E.2d 808 (2d Dist.), the Second District, in evaluating a
sufficiency challenge, elaborated on the meaning of “fugitive from justice.” Id. at ¶ 19.
Utilizing the definition of “fugitive from justice” as provided by extradition laws, the
Second District formulated a comparable definition: “the alleged fugitive from justice
must: (1) have incurred guilt – i.e., be guilty of having committed some offense; (2) be
aware that he is being sought by police in connection with that offense; and (3) being
aware that he is being sought by police, take some affirmative action to elude detection
4
OHIO FIRST DISTRICT COURT OF APPEALS
by police.” Id. at ¶ 21. In State v. March, 2019-Ohio-2001, 136 N.E.3d 932, ¶ 24 (8th
Dist.), the Eighth District adopted the exact definition of “fugitive from justice” in R.C.
2923.13(A)(1) as used by the Second District in Cherry. And in an Eleventh District
case, State v. McClelland, 11th Dist. Portage Nos. 1488 and 1491, 1985 Ohio App.
LEXIS 9740, *10 (Dec. 20, 1985), the court weighed the fact that the defendant “knew
there was still an active warrant for his arrest” (as well as the fact that the defendant
had fled the jurisdiction) in determining that the defendant was a fugitive from justice.
Our court, however, rejected the awareness requirement reflected in these decisions
in In re J.T., holding that “the state did not have to prove that [defendant] was aware
that he was wanted for a criminal offense.” In re J.T. at ¶ 22.
{¶9} In line with In re J.T., other districts do not require awareness by the
defendant that the authorities are searching for him. In State v. Hall, 5th Dist. Stark
No. 2004CA00174, 2005-Ohio-167, for example, the Fifth District defined “fugitive
from justice” as a person who “(1) is suspected of or has been convicted of a crime; (2)
is sought by the jurisdiction so that he may be subjected to its criminal system[;] and
(3) has left the jurisdiction and is found within the boundaries of another.” Id. at ¶
14. The Ninth District also subscribes to this approach, framing the inquiry in nearly
identical terms. See State v. Adkins, 80 Ohio App.3d 817, 610 N.E.2d 1143 (9th
Dist.1992).
{¶10} While appellate districts in Ohio disagree as to the awareness
requirement and they do not use the same verbiage to define a “fugitive from justice,”
a consensus exists among the districts that the state must establish that the defendant
took some affirmative step to elude detection by the police. See March at ¶ 25 (“R.C.
2923.13(A)(1) requires the state to show that [defendant] was a fugitive from justice,
5
OHIO FIRST DISTRICT COURT OF APPEALS
which, in turn, requires the state to show that [defendant] ‘took an affirmative action
to elude detection by police.’ ”); Cherry at ¶ 21 (The defendant “must * * * take some
affirmative action to elude detection by the police.”); Adkins at 821 (The state must
prove that the defendant “left the jurisdiction and is found within the boundaries of
another.”); In re J.T., 2014-Ohio-5062, 21 N.E.3d 1136, at ¶ 22, quoting McClelland at
*9 (The state must “present sufficient evidence that [defendant] had ‘fled from
justice.’ ”). And the court in McClelland relied on the fact that “Webster’s New World
Dictionary (1979) defines ‘fugitive’ as one who is fleeing from danger or justice.”
McClelland at *9. This standard thus requires action, rather than a defendant
passively going about his business within the relevant jurisdiction.
{¶11} The facts of extant cases help illustrate the point. For example, the state
may prove: (1) that the defendant left the jurisdiction, Adkins at 821; (2) that he fled
from the police when they showed up to apprehend him, McClelland, 11th Dist.
Portage Nos. 1488 and 1491, 1985 Ohio App. LEXIS 9740, at *11-12; March, 2019-
Ohio-2001, 136 N.E.3d 932, at ¶ 26; or (3) that he took other action to evade arrest
that “endanger[ed] the life of an officer,” such as engaging in a high-speed car chase
or firing a gun at a police officer, McClelland at *11-12; Cherry, 171 Ohio App.3d 375,
2007-Ohio-2133, 870 N.E.2d 808, at ¶ 22; State v. Anderson, 183 Ohio App.3d 522,
2009-Ohio-3900, 917 N.E.2d 843, ¶ 42; State v. Kortz, 2d Dist. Montgomery No.
25041, 2013-Ohio-121, ¶ 5. These examples are certainly not exhaustive, but the state
must show more than “uncooperative” and “reluctant” behavior toward police officers.
March at ¶ 26.
{¶12} In the case before us, the state points to the warrant that precipitated
the arrest of J.H. and his apparent awareness of the existence of the warrant to
6
OHIO FIRST DISTRICT COURT OF APPEALS
establish his “fugitive” status. However, the state failed to identify any evidence
supporting the notion that J.H. “fled from justice,” In re J.T., 2014-Ohio-5062, 21
N.E.3d 1136, at ¶ 22, consistent with the caselaw identified above. In fact, we are
unaware of any case where the simple existence of a warrant justified a conclusion that
the defendant qualified as a fugitive from justice. See March at ¶ 29 (noting that a
“fugitive from justice” “does not require that a defendant take an affirmative action to
elude a court appearance; it requires eluding detection by police, who would be seeking
a defendant on a capias”).
{¶13} Moreover, we find it significant that J.H. made no effort to resist arrest
or flee from the authorities as they sought to apprehend him. In March, even though
the defendant acted “uncooperative” with respect to his apprehension, the court found
insufficient evidence to satisfy the fugitive from justice requirement. Id. at ¶ 26. J.H.
did not leave the jurisdiction and did not flee from (or resist) the police when they
showed up to arrest him. He was found sleeping inside a residence in Hamilton
County and, according to Officer Traufler, police arrested him “without incident.”
Accordingly, we conclude that the state failed to present sufficient evidence to
establish that J.H. was a fugitive from justice, an essential element of his adjudication
for having weapons under disability.
{¶14} We sustain in part J.H.’s second assignment of error, concluding that
his adjudication for having weapons under disability is not supported by sufficient
evidence. This conclusion renders J.H.’s remaining challenges to his weapons under
disability adjudication (on evidentiary and manifest weight grounds, as presented in
his first and second assignments of error) moot.
7
OHIO FIRST DISTRICT COURT OF APPEALS
III.
{¶15} As to J.H.’s adjudication for carrying a concealed weapon, in his first
assignment of error, he alleges that the juvenile court abused its discretion by
admitting state’s evidence that lacked proper authentication. In his second
assignment of error, he challenges the adjudication as based on insufficient evidence
and against the manifest weight of the evidence.
{¶16} With respect to his evidentiary objection, J.H. disputes that the firearm
admitted into evidence was the same gun recovered during his arrest. Authentication
represents a threshold condition for the admissibility of evidence. Pursuant to Evid.R.
901(A), “[t]he requirement of authentication or identification as a condition precedent
to admissibility is satisfied by evidence sufficient to support a finding that the matter
in question is what its proponent claims.” A “witness with knowledge” may offer
“[t]estimony that a matter is what it is claimed to be” as a means of authenticating a
document or object. Evid.R. 901(B)(1). And, “[a]uthentication is ‘a very low threshold,
which is less demanding than the preponderance of the evidence.’ ” State v. Patterson,
1st Dist. Hamilton No. C-170329, 2018-Ohio-3348, ¶ 13, quoting State v. White, 4th
Dist. Scioto No. 03CA2926, 2004-Ohio-6005, ¶ 61. Here, Officer Traufler, with
personal knowledge, identified the weapon in evidence as the firearm he retrieved
from J.H. at the time of his arrest. The firearm was teal and had a serial number on it,
rendering it easily identifiable. Based on this testimony, we find no abuse of discretion
in the juvenile court’s decision to admit the firearm as evidence.
{¶17} Turning to the sufficiency and manifest weight arguments, we provided
the sufficiency standard above and the manifest weight one is equally familiar: in that
respect, we sit as a “thirteenth juror,” State v. Thompkins, 78 Ohio St.3d 380, 387, 678
8
OHIO FIRST DISTRICT COURT OF APPEALS
N.E.2d 541 (1997), and “review the entire record, weigh the evidence and reasonable
inferences, [and] consider the credibility of the witnesses.” State v. Barnthouse, 1st
Dist. Hamilton No. C-180286, 2019-Ohio-5209, ¶ 6. 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.’ ” State v. Sipple, 2021-Ohio-
1319, 170 N.E.3d 1273, ¶ 7 (1st Dist.), quoting State v. Martin, 20 Ohio App.3d 172,
175, 485 N.E.2d 717 (1st Dist.1983).
{¶18} J.H. first insists that he did not “conceal” the firearm from the officers.
After all, he was fast asleep right before the officers interrupted his slumber. Pursuant
to R.C. 2923.12(A), “[n]o person shall knowingly carry or have, concealed on the
person’s person or concealed ready at hand, any of the following: (1) A deadly weapon
other than a handgun; (2) A handgun other than a dangerous ordnance; or (3) A
dangerous ordnance.” “A gun is ‘concealed’ as that term is used in R.C. 2923.12 if it is
‘so situated not to be discernable by ordinary observation by those near enough to see
it if it were not concealed.’ ” State v. McGee, 1st Dist. Hamilton No. C-150496, 2016-
Ohio-7510, ¶ 26, quoting State v. Davis, 15 Ohio App.3d 64, 64, 472 N.E.2d 751 (1st
Dist.1984). And “[t]he element of concealment in the offense of carrying a concealed
weapon does not require that the weapon be completely hidden from view under all
conceivable circumstances.” McFinley v. Bethesda Oak Hosp., 79 Ohio App.3d 613,
618, 607 N.E.2d 936 (1st Dist.1992).
{¶19} J.H. posits that, because the officers identified the gun in his pocket
before physically retrieving it, it was not concealed. However, it took officers several
minutes of handcuffing the boys, standing near J.H., and questioning the teenagers
before they noticed the firearm. During Officer Traufler’s testimony, when asked
9
OHIO FIRST DISTRICT COURT OF APPEALS
whether he could see the firearm, he replied, “No. It was concealed in his pant pocket.
I mean, you could feel something heavy in there.” Viewing this evidence in the light
most favorable to the state, it cannot be said that no rational trier of fact could have
found all the essential elements of the offense of carrying a concealed weapon beyond
a reasonable doubt. And, the court, as the fact finder, was tasked with assessing the
credibility of the witnesses in this case. See State v. Kidd, 1st Dist. Hamilton No. C-
200356, 2021 Ohio App. LEXIS 3803, *23 (Oct. 29, 2021) (“Generally, credibility is
an issue for the trier of fact to resolve.”). The juvenile court sat in the best position to
observe each witness on the stand and determine their credibility.
{¶20} J.H. also invokes R.C. 2923.12(D)(3), which provides for an affirmative
defense to the charge of carrying a concealed weapon if “[t]he weapon was carried or
kept ready at hand by the actor for any lawful purpose and while in the actor’s own
home.” J.H. was located inside the bedroom of a residence, asleep, at the time of his
arrest. While it seems plausible that J.H. was, in fact, residing in the Clephane home
where he was arrested, he bore the burden to establish this point at trial. “The burden
of going forward with the evidence of an affirmative defense, and the burden of proof,
by a preponderance of the evidence, for an affirmative defense other than self-defense,
defense of another, or defense of the accused’s residence presented as described in
division (B)(1) of this section, is upon the accused.” R.C. 2901.05(A). J.H. offered no
evidence at trial that he actually resided in the Clephane home. And sleeping or
temporarily staying in the home of another does not automatically transform the
residence into a “home” for purposes of R.C. 2923.12(D). See State v. Kelly, 8th Dist.
Cuyahoga No. 81992, 2003-Ohio-4057 (holding that, although defendant spent
considerable time at the home of his girlfriend, this did not entitle defendant to an
10
OHIO FIRST DISTRICT COURT OF APPEALS
instruction on the affirmative defense of being in his own home for purposes of having
a concealed gun).
{¶21} Finally, J.H. claims that there is no competent, credible evidence that
the gun presented at trial was the same one taken from his person during his arrest.
However, as discussed above, Officer Traufler’s testimony sufficed to authenticate the
weapon. Considering the above, the juvenile court did not lose its way in adjudicating
J.H. delinquent as to the carrying a concealed weapon charge, nor did it create a
manifest miscarriage of justice.
{¶22} We overrule J.H.’s first and second assignments of error insofar as they
pertain to his adjudication for carrying a concealed weapon.
* * *
{¶23} In light of the foregoing analysis, we reverse the juvenile court’s
judgment as to J.H.’s adjudication for weapons under disability and discharge him
from further prosecution on that offense in the appeal number C-210663. However,
we affirm J.H.’s adjudication for carrying a concealed weapon in the appeal number
C-210664.
Judgment accordingly.
CROUSE and BOCK, JJ., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
11 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482840/ | [Cite as In re N.S., 2022-Ohio-3988.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
IN RE: N.S. AND C.S. : APPEAL NO. C-220066
TRIAL NO. F15-2432X
: O P I N I O N.
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 9, 2022
Bailey Law Office, LLC, and Donyetta D. Bailey, for Appellant father,
Victor Dwayne Sims, for Appellee grandfather.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} Father appeals from the trial court’s judgment awarding
companionship time of his children, N.S. and C.S. to grandfather. In three
assignments of error, father argues that the trial court failed to give special weight to
father’s wishes regarding visitation with grandfather, wrongfully placed the burden of
proof on father to establish that visitation with grandfather was not in the children’s
best interest, and abused its discretion in ultimately determining that visitation with
grandfather was in the children’s best interest.
{¶2} While we understand father’s position, our review of the record reveals
no abuse of discretion on the part of the trial court. We therefore find father’s
assignments of error to be without merit and affirm the trial court’s judgment.
Factual and Procedural Background
{¶3} At the start of this litigation, father had legal custody of N.S. and C.S.
Grandfather (father’s father) filed a request for an emergency hearing and a petition
for custody of N.S. and C.S. on December 23, 2020. In a supporting affidavit,
grandfather alleged that the children were in imminent danger due to constant
physical and mental abuse by father. Following a hearing, a juvenile court magistrate
denied grandfather’s motion for an emergency order of custody because the testimony
presented established that the most recent alleged physical abuse that left any mark
on the children occurred more than nine months earlier, and the court could not make
a finding of imminent risk of harm without a recent event of serious harm to the
children. The order further provided that no one was allowed to use physical discipline
on the children pending further order of the court.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶4} On January 7, 2021, grandfather filed another request for an emergency
order of custody. In a supporting affidavit, grandfather alleged that approximately a
week earlier, on New Year’s Eve, father had choked N.S. by lifting her off the floor by
her neck. The magistrate issued an order granting emergency custody to grandfather
after finding that testimony at a hearing established that father had used corporal
punishment in contravention of the magistrate’s previous order. The matter was set
for a subsequent hearing on January 13, 2021. Father did not appear on that date, and
the magistrate continued the emergency grant of interim custody to grandfather.
{¶5} On January 14, 2021, father filed a petition for custody of N.S. and C.S.
and a request for an emergency hearing, alleging that the children’s basic needs were
not being met under grandfather’s care and that they wanted to return home.
Following a hearing, the magistrate denied father’s motion.
{¶6} Father then filed a motion to set aside the magistrate’s order granting
interim custody to grandfather, arguing that he had been unable to join the remote
hearing on grandfather’s motion and present his case. The trial court granted father’s
motion to set aside the magistrate’s order, finding that father was erroneously notified
of a remote hearing, when the hearing had been held in person, and it remanded the
case for a new hearing. On remand, the magistrate issued an order denying
grandfather’s motion for an emergency order of interim custody and ordered that the
children be returned to father.
{¶7} Grandfather modified his motion for custody of N.S. and C.S. to a
motion for visitation with the children. At a hearing on his motion, grandfather
testified that he had an excellent relationship with his grandchildren. He explained
3
OHIO FIRST DISTRICT COURT OF APPEALS
that he often watched them after school, from the time that they got off the school bus
until late in the evening.
{¶8} Grandfather testified that he had concerns about father abusing the
children. He stated that after N.S. told him that father had “whooped” her with a belt
and left a mark on her skin, he told father that father had crossed a line and that “I
didn’t say he couldn’t whoop them. I said he couldn’t break—breaking their skin and
putting welts on them was over the line.” Grandfather identified several pictures
depicting various injuries to N.S. that he stated resulted from discipline by father,
including a cut on N.S.’s thigh that occurred when she was “whooped” and an injury
to her mouth and lip incurred when father smacked her. According to grandfather,
these injuries occurred over a period of time from September of 2017 to October of
2020. During this period of time, grandfather never contacted authorities about his
concerns with father’s treatment of the children, but rather attempted to resolve his
concerns “in house.” Grandfather also spoke to Denise Shamel, father’s mother, about
his concerns. He and Shamel planned for Shamel to tell father that if father ever felt
like he needed to “whoop” the children, he should take them to Shamel’s and leave
them with her.
{¶9} Father testified and addressed grandfather’s allegations that he had
caused the injuries to N.S. depicted in the photographs. He denied the allegations,
explaining that one of the depicted injuries was caused when N.S. got into a “scuffle”
with another girl, and that N.S. suffered another injury when she was punched in the
mouth while being bullied on the school bus. Father also denied grandfather’s
allegations that he had caused injury to N.S. on New Year’s Eve. He stated that he
4
OHIO FIRST DISTRICT COURT OF APPEALS
believed grandfather fabricated those allegations as retribution for him telling
grandfather that he was no longer welcome in father’s life.
{¶10} Father testified that while he had previously used corporal punishment
on his children, he did not currently do so, and that he had not physically disciplined
them in the past several years. And he stated that grandfather had never approached
him with grandfather’s concerns about his treatment of the children.
{¶11} Father stated that he was opposed to grandfather being granted
visitation with N.S. and C.S. He told the court that the children were traumatized
following the court’s temporary grant of emergency custody to grandfather. Their
grades fell during that period, they were not as happy, and they were withdrawn.
Father testified that when the children were returned to his care, father enrolled them
in therapy, and that their grades and mental health have since improved.
{¶12} Father’s testimony corroborated that offered by grandfather concerning
the time that grandfather spent with the children after school and in the evenings.
Father explained that he no longer works such long hours and is able to do more for
the children himself.
{¶13} Father also presented testimony from his sister Abiona Jamison and his
mother Denise Shamel. Both testified that they spent New Year’s Eve with father and
the children, and that they did not see father discipline N.S. or C.S. Jamison
elaborated that she had never seen any signs of abuse on the children, and that neither
child had ever told her that their father abused them. Shamel likewise testified that
she had never seen father abuse the children and that the children had never reported
abuse by father. She acknowledged that grandfather had conveyed to her his concern
5
OHIO FIRST DISTRICT COURT OF APPEALS
that father was too rough with the children, but stated that she did not share
grandfather’s concerns.
{¶14} Shamel testified that grandfather is not a truthful person, and that she
felt that he disrespects her in front the children. Both father’s brother, Devante
Shamel, and father’s girlfriend, Konta Perkins, also testified that grandfather is not a
truthful person and that they had never seen father abuse the children.
{¶15} In addition to the testimony presented, the magistrate conducted an in
camera interview with N.S. The magistrate issued a decision denying grandfather’s
request for visitation. The decision stated that, after conducting the in camera
interview, the magistrate did not believe that grandfather’s allegations were
meritorious and that father’s explanations of the children’s injuries were accurate. The
magistrate considered the relevant statutory factors before determining that visitation
with grandfather was not in the children’s best interest. The decision provided that:
[T]he court has grave concerns about allowing grandfather to have
visitation with the children. His motivation for documenting marks on
the children does not appear to be what he stated. The court does not
believe that the children would have reported abuse to grandfather but
not reported it to anyone else. They simply do not appear to have had
that kind of close relationship. This is further buttressed by the fact that
no one else ever observed any concerning behavior from father or the
children that would have indicated abuse.
{¶16} Grandfather filed objections to the magistrate’s decision, arguing that
the magistrate’s findings were contrary to the testimony and to the manifest weight of
the evidence, and that the decision was not in the children’s best interest. Transcripts
6
OHIO FIRST DISTRICT COURT OF APPEALS
were not filed, but to facilitate its review of the objections, the trial court reviewed the
audio-visual record of the proceedings. The trial court found grandfather’s objections
to be well taken, stating that the magistrate did not properly determine the factual
issues or appropriately apply the law. It indicated that the hearing before the
magistrate had focused on whether father had abused the children, when the actual
focus of the hearing should have been on whether visitation with grandfather was in
the children’s best interest. Because of this misguided focus, the court found, the
magistrate allowed his disbelief that abuse had occurred to color his interpretation of
the testimony.
{¶17} The trial court did not find father’s witnesses to be credible, stating that
“[f]ather’s witnesses claimed to be regularly involved with the children, some even on
a daily basis, but denied any knowledge of ever seeing any injuries on the children or
hearing about the children having issues with other children” and that “there appeared
to be personal issues at play regarding the nature of the witnesses’ relationship with
Grandfather that made their testimony additionally questionable.” The court further
found that father’s description of the children’s relationship with grandfather lacked
credibility, stating that “Grandfather has a long-standing relationship with these
children and was involved in their daily care until the very recent past when the
relationship between Grandfather and Father became strained.”
{¶18} The trial court considered the relevant statutory best-interest factors
and determined that visitation or companionship time with grandfather was in the
children’s best interest. The court accordingly set aside the magistrate’s decision,
granted grandfather’s motion for visitation, and denied father’s pending motion for
custody because father already held legal custody of the children.
7
OHIO FIRST DISTRICT COURT OF APPEALS
{¶19} Father now appeals.
Grandparent Visitation
{¶20} In three related assignments of error, father challenges the trial court’s
entry granting visitation to grandfather. Before addressing father’s arguments, a
discussion of the statutes governing grandparent visitation is instructive.
{¶21} R.C. 3109.12, applicable in this case, provides that if a child is born to
an unmarried woman, the father of the child has acknowledged paternity, and that
acknowledgement has become final or officially determined, then “the parents of the
father and any relative of the father may file a complaint requesting that the court
grant them reasonable companionship or visitation rights with the child.” R.C.
3109.12(A). The trial court may grant a grandparent companionship or visitation
rights if it determines that doing so is in the best interest of the child. R.C. 3109.12(B).
In determining whether visitation with a grandparent is in a child’s best interest, “the
court shall consider all relevant factors, including, but not limited to, the factors set
forth in division (D) of section 3109.051 of the Revised Code.” Id.
{¶22} The best-interest factors set forth in R.C. 3109.051(D) are as follows:1
(1) The prior interaction and interrelationships of the child with * * * the
person who requested companionship or visitation if that person is not
a parent, sibling, or relative of the child;
(2) The geographical location of the residence of each parent and the
distance between those residences, and if the person is not a parent, the
1The factors set forth in R.C. 3109.051(D)(11), (13), and (14) are not relevant in this appeal, as they
solely concern the child’s parents, and not a family member seeking visitation.
8
OHIO FIRST DISTRICT COURT OF APPEALS
geographical location of that person’s residence and the distance
between that person’s residence and the child’s residence;
(3) The child’s and parents’ available time, including, but not limited to,
each parent’s employment schedule, the child’s school schedule, and the
child’s and the parents’ holiday and vacation schedule;
(4) The age of the child;
(5) The child’s adjustment to home, school, and community;
(6) If the court has interviewed the child in chambers, pursuant to
division (C) of this section, * * * the wishes and concerns of the child, as
expressed to the court;
(7) The health and safety of the child;
(8) The amount of time that will be available for the child to spend with
siblings;
(9) The mental and physical health of all parties;
(10) Each parent’s willingness to reschedule missed parenting time and
to facilitate the other parent’s parenting time rights, and with respect to
a person who requested companionship or visitation, the willingness of
that person to reschedule missed visitation;
* * *
(12) In relation to requested companionship or visitation by a person
other than a parent, whether the person previously has been convicted
of or pleaded guilty to any criminal offense involving any act that
resulted in a child being an abused child or a neglected child; whether
the person, in a case in which a child has been adjudicated an abused
9
OHIO FIRST DISTRICT COURT OF APPEALS
child or a neglected child, previously has been determined to be the
perpetrator of the abusive or neglectful act that is the basis of the
adjudication; * * * and whether there is reason to believe that the person
has acted in a manner resulting in a child being an abused child or a
neglected child;
* * *
(15) In relation to requested companionship or visitation by a person
other than a parent, the wishes and concerns of the child’s parents, as
expressed by them to the court;
(16) Any other factor in the best interest of the child.
1. Standard of Review
{¶23} We review a trial court’s decision to grant a nonparent’s motion for
companionship or visitation time for an abuse of discretion. In re Flynn, 10th Dist.
Franklin No. 20AP-506, 2021-Ohio-4456, ¶ 15; In re A.B., 12th Dist. Butler No.
CA2015-06-104, 2016-Ohio-2891, ¶ 39. An abuse of discretion indicates “more than
a mere error of law or judgment; it implies that the trial court’s decision was
unreasonable, arbitrary, or unconscionable.” State v. Griffin, 2020-Ohio-3707, 155
N.E.3d 1028, ¶ 38 (1st Dist.).
2. Father’s Wishes
{¶24} In his first assignment of error, father argues that the trial court erred
and abused its discretion by failing to give special weight to father’s wishes when
determining whether to grant visitation to grandfather. Father’s argument concerns
the best-interest factor set forth in R.C. 3109.051(D)(15), which, as set forth above,
10
OHIO FIRST DISTRICT COURT OF APPEALS
provides that the trial court should consider “the wishes and concerns of the child’s
parents, as expressed by them to the court.”
{¶25} A parent has a fundamental right to make decisions that concern the
care, custody, and control of her or his own child. Harrold v. Collier, 107 Ohio St.3d
44, 2005-Ohi0-5334, 836 N.E.2d 1165, ¶ 40; In re E.T.B., 12th Dist. Clermont No.
CA2014-07-051, 2015-Ohio-2991, ¶ 27. Grandparents, on the other hand, “have no
constitutional right of association with their grandchildren” and are only entitled to be
granted visitation rights as provided for by statute. In re E.T.B. at ¶ 27. Because fit
parents possess this fundamental right concerning the care of their children, the
preferences of a fit parent regarding visitation should be accorded great deference. In
re E.T.B. at ¶ 30.
{¶26} As such, to protect a parent’s due-process rights, a trial court must give
special weight to R.C. 3109.051(D)(15) when making a visitation determination.
Collier at ¶ 42; Estep v. Celek, 1st Dist. Hamilton No. C-081117, 2009-Ohio-4990, ¶ 9.
However, a parent’s wishes should not be placed before the best interest of the child,
and the parent’s wishes are not “the sole determinant of the child’s best interest.”
Collier at ¶ 44; Estep at ¶ 9. Rather, “the trial court must take into consideration the
15 other factors set forth in R.C. 3109.051(D) and balance those factors against the
parent’s desires to determine the child’s best interest.” Estep at ¶ 9; see Collier at ¶
43.
{¶27} While trial courts must accord special weight to a parent’s wishes,
neither the applicable statutes or the relevant case law define what exactly constitutes
“special weight.” In Estep, this court discussed the trial court’s obligation to accord
special weight to a parent’s wishes, stating:
11
OHIO FIRST DISTRICT COURT OF APPEALS
a trial court is not required to find ‘overwhelmingly clear circumstances’
before ordering visitation for the benefit of the child over the opposition
of the parent. Instead, because a parent’s wishes are to be given some
special weight, those wishes must be weighed against the other factors
under R.C. 3109.051(D) bearing upon whether it is in the best interest of
the child to grant non-parental visitation. And the manner in which this
standard is to be applied to each case must be ‘elaborated with care.’
Thus, there must be some meaningful rationale given for either abiding
by or overriding the wishes of the parent.
Estep at ¶ 10, quoting Collier at ¶ 46, and Troxel v. Granville, 530 U.S. 57, 73, 120 S.Ct.
2054, 147 L.Ed.2d 49 (2000). Several of our sister districts have interpreted the
phrase “special weight” to mean “extreme deference.” Boling v. Thacker, 2d Dist.
Clark No. 2018-CA-109, 2019-Ohio-3683, ¶ 16; Ford v. Frazier, 4th Dist. Hocking No.
02CA8, 2003-Ohio-1087, ¶ 28; Oliver v. Feldner, 149 Ohio App.3d 114, 2002-Ohio-
3209, 776 N.E.2d 499, ¶ 61 (7th Dist.); In re N.C.W., 2014-Ohio-3381, 17 N.E.3d 119,
¶ 21 (12th Dist.). And one district has recognized that while a trial court must accord
special weight to a parent’s wishes, the court is not required to use the words “special
weight” in a decision determining visitation. Williams v. McGuire, 9th Dist. Lorain
No. 21CA011784, 2022-Ohio-3598, ¶ 5.
{¶28} Some additional guidance as to the meaning of the phrase “special
weight” can also be found in Collier, in which the Supreme Court of Ohio considered
whether a trial court had given special weight to a father’s wishes that his child not
have visitation with grandparents. Collier, 107 Ohio St.3d 44, 2005-Ohi0-5334, 836
N.E.2d 1165. When evaluating the trial court’s decision, the Collier court held that:
12
OHIO FIRST DISTRICT COURT OF APPEALS
The court ultimately decided that [child’s] best interests in maintaining
her relationship with appellees outweighed appellant’s desire for no
visitation. While the trial court did not use the words ‘special weight,’ it
is clear that the court gave due deference to appellant’s wishes and
concerns regarding visitation before determining that it was in [child’s]
best interest to grant appellees’ motion for grandparent visitation.
Id. at ¶ 45.
{¶29} Here, the trial court considered father’s wishes that grandfather not be
granted visitation with the children. When doing so, the court noted that father had
concerns that grandfather would fabricate additional allegations of physical abuse by
father if he was granted access to the children. The court ultimately did not find
father’s concerns to be credible, stating that “The history of the case and evidence
presented does not demonstrate that Grandfather was responsible for the fabrication
of allegations or that the allegations were false. Father’s own testimony indicated that
he believes in and utilizes corporal punishment. Grandfather presented photographic
evidence of the child’s injuries.” Also impacting its assessment of father’s wishes was
the court’s disbelief of father’s description of the relationship between grandfather and
the children. On this point, the court stated:
While the Magistrate discounted the nature of the children’s
relationship with Grandfather, as described by Grandfather, to not be
credible based on their interpretation that the abuse allegations were
not credible, the Court disagrees. Here, Grandfather described his daily
routine with the children, including his daily involvement in their school
transportation and transportation to their Grandmother’s home, and
13
OHIO FIRST DISTRICT COURT OF APPEALS
the long-lasting nature of their relationship generally, including regular
overnight visits and weekly dinners. Father did not deny this
relationship and arrangement existed but rather attempted to diminish
Grandfather’s role just as somewhat of a taxi service.
{¶30} We are mindful of a fit parent’s fundamental right to make decisions
that concern the care, custody, and control of her or his child. We recognize that
generally, a parent has the right to choose people with whom her or his child
associates, even as to visitation with close relatives. And courts must give the parents’
wishes due deference when considering the best interest of the child. Nonetheless, in
this case, the trial court made a specific credibility finding regarding father. That
credibility determination, which we will not second guess, impacted the court’s
assessment of father’s proffered reasons for not wanting grandfather to be allowed
visitation with N.S. and C.S. The court simply did not believe father when he testified
that the children’s grades suffered and that they required therapy as a result of
visitation with grandfather. Nonetheless, the court was still required to give the
father’s wishes special consideration.
{¶31} The record establishes that the court accorded father’s wishes due
deference and provided a meaningful rationale for overriding them. See Estep, 1st
Dist. Hamilton No. C-081117, 2009-Ohio-4990, at ¶ 10. In addition to considering
father’s wishes, the trial court considered the other factors in R.C. 3109.051(D). After
considering and weighing all factors, the court determined that granting visitation to
grandfather was in the children’s best interest. While the court’s determination was
in contravention to father’s wishes, that does not mean that the court failed to give due
deference or special weight to those wishes.
14
OHIO FIRST DISTRICT COURT OF APPEALS
{¶32} Because the record demonstrates that the trial court did not fail to give
special weight to father’s wishes, we find that the trial court did not err or abuse its
discretion and we overrule the first assignment of error.
3. Burden of Proof
{¶33} In his second assignment of error, father argues that the trial court erred
and abused its discretion by placing the burden of proof on father to establish that
visitation with grandfather was not in the children’s best interest.
{¶34} In support of his argument, father directs us to two specific statements
by the trial court. First, father takes issue with the trial court’s response to father’s
testimony that the children are in therapy as a result of their removal from his home.
In addressing father’s testimony, the trial court stated:
Father produced no evidence of the children being in therapy, or, if so,
the source of their alleged trauma or therapeutic treatment plans. While
the Court has not been presented with sufficient evidence to
demonstrate that the children’s mental health has been effected [sic] by
their prior removal from Father’s home, the Court does not doubt that
the rift in the relationship between Grandfather and Father has caused
turmoil for these children, given the nature of their past relationship as
a family.
{¶35} Father also directs us to the trial court’s treatment of his testimony that
the children’s schoolwork suffered while they were in grandfather’s care. In
considering the factor in R.C. 3109.051(D)(5) pertaining to the children’s adjustment
to home, school, and community, the court stated:
15
OHIO FIRST DISTRICT COURT OF APPEALS
Father claims that the children did not do well in school for a period due
to their removal from his home. However, no evidence was presented
to indicate the accuracy of this claim or the extent and timeliness of any
maladjustment. Furthermore, Father reports that the children are
presently doing well. No evidence was presented that would indicate
that the children are not well-adjusted to each home environment or
related community.
{¶36} Father is correct in his assertion that grandfather bore the burden of
proof to establish that visitation with grandfather was in the children’s best interest.
Collier, 107 Ohio St.3d 44, 2005-Ohi0-5334, 836 N.E.2d 1165, at ¶ 45. But we do not
agree with father’s contention that the trial court’s statements, as quoted above, reflect
that the trial court switched the burden of proof to father to establish that visitation
with grandfather was not in the children’s best interest.
{¶37} Father is also correct in arguing that the trial court’s statements that he
provided “no evidence” were incorrect. Father’s testimony on these issues is evidence.
Rather, we interpret the trial court to be saying that there was no corroborating
evidence presented.
{¶38} In response to father’s argument, we first note that these two comments
by the trial court are two isolated comments taken from the trial court’s multiple-page
entry. Outside of these comments, the record contains no indication that the trial
court, when weighing the relevant factors and considering the evidence presented,
placed the burden of proof on father. Second, in our view, the trial court’s comments
reflect the court’s credibility determination regarding father, rather than a switching
of the burden of proof. It is clear from the trial court’s entry that the court did not find
16
OHIO FIRST DISTRICT COURT OF APPEALS
father to be a credible witness. The court stated that it “does not find Father’s
description of the children’s relationship with Grandfather to be credible” and that it
believed that when describing grandfather’s relationship with the children, father
“attempted to diminish Grandfather’s role just as somewhat of a taxi service.”
{¶39} The statements that father takes issue with illustrate the credibility, or
lack thereof, that the trial court accorded to father’s testimony. The court considered
father’s superficial or base testimony that the children needed therapy following their
time in grandfather’s care and that their grades suffered while in his care. Given its
assessment of father’s credibility, the court looked for other evidence in the record to
corroborate father’s assertions.
{¶40} We hold that the trial court did not err or abuse its discretion by
erroneously placing the burden of proof on father, and we overrule the second
assignment of error.
4. Best-Interest Determination
{¶41} In his third assignment of error, father argues that the trial court erred
and abused its discretion by finding that grandparent visitation was in the best interest
of the children because the court’s factual findings were against the manifest weight of
the evidence.
{¶42} In determining whether visitation with grandfather was in the
children’s best interest, the trial court considered the factors set forth in R.C.
3109.051(D). Father takes issue with the trial court’s findings in support of these
factors and argues that the court discounted the testimony offered by father’s
witnesses. For example, father argues that the trial court ignored the testimony from
multiple witnesses that grandfather has a propensity to lie and that it ignored the
17
OHIO FIRST DISTRICT COURT OF APPEALS
testimony from Denise Shamel regarding grandfather’s treatment of her in front of the
children and his treatment of the children themselves.
{¶43} The trial court’s consideration of the witnesses’ testimony reflects the
credibility that the court accorded that testimony. In addition to finding that father
lacked credibility, the trial court found the testimony offered by father’s witnesses to
also be lacking in credibility. The court stated:
Father’s witnesses claimed to be regularly involved with the children,
some even on a daily basis, but denied any knowledge of ever seeing any
injuries on the children or hearing about the children having issues with
other children. Furthermore, there appeared to be personal issues at
play regarding the nature of the witnesses’ relationship with
Grandfather that made their testimony additionally questionable.
{¶44} Other statements by the trial court reflect its determination that
grandfather was a credible witness. The court made the following statements
concerning grandfather’s credibility:
The history of the case and evidence presented does not demonstrate
that Grandfather was responsible for the fabrication of allegations or
that the allegations were false. Father’s own testimony indicated that
he believes in and utilizes corporal punishment. Grandfather presented
photographic evidence of the child’s injuries. The Court’s record
indicates prior receipt of audio recordings of the child disclosing abuse,
which the Court had found sufficient to grant Interim Custody to
Grandfather on an emergency basis.
* * *
18
OHIO FIRST DISTRICT COURT OF APPEALS
While the Magistrate discounted the nature of the children’s
relationship with Grandfather, as described by Grandfather, to not be
credible based on their interpretation that the abuse allegations were
not credible, the Court disagrees.
{¶45} The trial court, which viewed the audio-visual recordings of the
proceedings, was in the best position to judge the credibility of the witnesses and we
will not second guess its determinations. See State v. DeHass, 10 Ohio St.2d 230, 227
N.E.2d 212 (1967), paragraph one of the syllabus; State v. Shepard, 1st Dist. Hamilton
No. C-190747, 2021-Ohio-964, ¶ 62.
{¶46} The trial engaged in a thorough and detailed best-interest
determination. Although this court, under a de novo review, may have reached a
different conclusion, the trial court’s decision was not unreasonable, arbitrary, or
unconscionable.
{¶47} Because the trial court did not abuse its discretion in determining that
a grant of visitation to grandfather was in the children’s best interest, the third
assignment of error is overruled. The judgment of the trial court is accordingly
affirmed.
Judgment affirmed.
BERGERON and CROUSE, JJ., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.
19 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482795/ | Third District Court of Appeal
State of Florida
Opinion filed November 10, 2022.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D22-59
Lower Tribunal No. F20-12118
________________
Jason A. Johnson,
Appellant,
vs.
The State of Florida,
Appellee.
An appeal conducted pursuant to Anders v. California, 386 U.S. 738
(1967), from the Circuit Court for Miami-Dade County, Lody Jean, Judge.
Jason A. Johnson, in proper person.
Ashley Moody, Attorney General, for appellee.
Before LOGUE, SCALES, and HENDON, JJ.
PER CURIAM.
Affirmed. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482842/ | [Cite as Edwards v. Horton, 2022-Ohio-3989.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
TAMYA EDWARDS, : APPEAL NO. C-220123
TRIAL NO. P21-1003Z
Plaintiff-Appellee,1 :
vs. : O P I N I O N.
CHARLES L. HORTON III, :
Defendant-Appellant. :
Appeal From: Hamilton County Juvenile Court
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 9, 2022
Charles L. Horton III, pro se.
1 Edwards did not submit a brief or appear at oral argument.
OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} Defendant-appellant Charles L. Horton III appeals the Hamilton
County Juvenile Court’s judgment overruling his objection to the administrative
support order that was registered with the court by the Hamilton County Child
Support Enforcement Agency (“CSEA”). We affirm the juvenile court’s judgment.
I. Factual and Procedural History
{¶2} In August 2021, CSEA registered an administrative support order with
the juvenile court requiring Horton to pay monthly child support. The order was based
on a previous administrative order establishing paternity through genetic testing. The
juvenile court adopted the administrative support order the following day.
{¶3} Horton’s first appearance in this action was an “Objection to
Administrative Order of Support,” which stated, “I, Horton-Charles [sic], alleged
defendant object to Hamilton County Child Support Enforcement Agency genetic
testing result. Defendant never submitted to genetic testing to determine a [sic]
order.” Horton attached to the objection the administrative order establishing
paternity, the genetic-testing results, and a written response that Horton had
purportedly sent to CSEA in reply to its request for paternity testing.
{¶4} Three days later, Horton filed a “Notice of Special Appearance.” The
notice averred that Horton was only “granting” the court “limited jurisdiction for the
sole purpose of vacating the fraudulent void administrative order dated August 4, 2021
and the fabricated DNA test used to establish paternity.” Attached to the notice was an
“Affidavit of Denial of Acknowledgment of Paternity and Parentage,” in which Horton
averred that he was not the father of the child and described himself as, “a man known
to use the name Charles-Lamont: Horton III, a Non-State Citizen and Paramount
2
OHIO FIRST DISTRICT COURT OF APPEALS
Security Interest Holder to the property in collateral both registered and unregistered
belonging in cestui que trust CHARLES LAMONT HORTON III[.]”
{¶5} In November 2021, the magistrate held a hearing on Horton’s objection
to the administrative support order. Horton repeatedly told the magistrate that he was
not there to “argue the case.” Rather, he asserted that, while he was known to use the
name Charles Horton, his property belonged only to the “cestui que trust” of Charles
Horton and he was only appearing as the “paramount security interest holder” of such
trust. The magistrate denied Horton’s objection, finding that Horton had failed to state
any reason why the administrative support order was incorrect.
{¶6} Horton objected to the magistrate’s decision, arguing that the court
lacked personal jurisdiction over him. The juvenile court held a hearing on his
objection. Horton made the same argument to the juvenile court—that he was only
appearing as the paramount security interest holder in the “cestui que trust” of Charles
Horton and not as Charles Horton. After some back and forth between the court and
Horton, the juvenile court asked Horton to explain his assertion that the court lacked
personal jurisdiction over him. He responded that the “claimant” failed to give proper
notice of the hearing. He expressly denied having any other concerns. The juvenile
court overruled Horton’s objection and found that it had personal jurisdiction over
him. This appeal followed.
II. Law and Analysis
{¶7} In a single assignment of error, Horton asserts that the trial court erred
as a matter of law by adopting the administrative support order. He argues that the
juvenile court lacked personal jurisdiction over him because he never voluntarily
submitted to the court’s jurisdiction or waived any jurisdictional defense. We disagree.
3
OHIO FIRST DISTRICT COURT OF APPEALS
{¶8} A trial court’s determination that it has personal jurisdiction over a
party is reviewed de novo. Johnson v. Hisle, 1st Dist. Hamilton No. C-170717, 2018-
Ohio-3693, ¶ 9. “The lack of personal jurisdiction must be raised in a party’s first
pleading, motion, or appearance.” In re S.H.O., 2d Dist. Montgomery No. 28072,
2019-Ohio-645, ¶ 14, citing Evans v. Evans, 10th Dist. Franklin No. 08AP-398, 2008-
Ohio-5695, ¶ 11. “If a party appears and participates in the case without objection, he
or she waives any defense based on lack of personal jurisdiction.” Id., citing Evans and
Harris v. Mapp, 10th Dist. Franklin No. 05AP-1347, 2006-Ohio-5515, ¶ 11.
{¶9} Horton first appeared before the juvenile court when he filed his
“Objection to Administrative Order of Support.” The objection challenged the genetic
testing used when establishing the parent and child relationship. But it did not
challenge the court’s jurisdiction over him. It was not until three days later that Horton
filed his first “Notice of Special Appearance,” which arguably raised the issue of
personal jurisdiction. Because Horton failed to raise any objection to personal
jurisdiction in his first appearance before the court, he waived any such objection.
{¶10} We note that Horton argued for the first time at oral argument that he
was never properly served with the administrative order from CSEA. But Horton never
raised this argument below. Outside of the jurisdictional arguments, the only issue
raised by Horton involved notice of the hearing at which he appeared. He never raised
any issue regarding service of the administrative order. By failing to raise this
argument below, he waived his right to assert it on appeal. See, e.g., Ditech Fin., LLC
v. Balimunkwe, 1st Dist. Hamilton No. C-180445, 2019-Ohio-3806, ¶ 11, quoting State
ex rel. Zollner v. Indus. Comm., 66 Ohio St.3d 276, 278, 611 N.E.2d 830 (1993) (“It is
a universal principle of appellate procedure that ‘[a] party who fails to raise an
argument in the court below waives his or her right to raise it [on appeal].’ ”).
4
OHIO FIRST DISTRICT COURT OF APPEALS
III. Conclusion
{¶11} Because we hold that Horton waived any objection to personal
jurisdiction, we overrule the sole assignment of error and affirm the trial court’s
judgment.
Judgment affirmed.
BERGERON, P.J., and CROUSE, J., concur.
Please note:
The court has recorded its own entry this date.
5 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482844/ | IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Choya Force, :
Petitioner :
:
v. : No. 63 C.D. 2022
: Submitted: August 26, 2022
Commonwealth of Pennsylvania :
(Workers’ Compensation Appeal :
Board), :
Respondent :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE LORI A. DUMAS, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE DUMAS FILED: November 10, 2022
Choya Force (Claimant) has petitioned this Court to review an
adjudication of the Workers’ Compensation Appeal Board (Board), which affirmed
the decision of the Workers’ Compensation Judge (WCJ). The WCJ granted a
petition to modify compensation benefits filed by the Commonwealth of
Pennsylvania (Employer). In this appeal, Claimant challenges as unconstitutional
the retroactive application of Act 111,1 which altered the criteria for modification of
a claimant’s benefits based on the results of an impairment rating evaluation (IRE).
Upon review, this case is controlled by Pierson v. Workers’ Compensation Appeal
Board (Consol Pennsylvania Coal Co.), 252 A.3d 1169 (Pa. Cmwlth.), appeal
1
Act of October 24, 2018, P.L. 714, No. 111 (Act 111). Act 111 repealed Section 306(a.2) of the
Workers’ Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by the Act
of June 24, 1996, P.L. 350, formerly 77 P.S. §511.2, and added Section 306(a.3), 77 P.S. §511.3.
denied, 261 A.3d 378 (Pa. 2021), in which this Court previously rejected similar
claims. Thus, we affirm.
I. BACKGROUND
On June 25, 2015, Claimant suffered a work-related injury to her back.2
Claimant eventually received total disability benefits of $552 per week. On July 21,
2020, Employer filed a modification petition alleging that Claimant had a whole-
body impairment rating of 14%. The WCJ held hearings, at which Employer
introduced, among other exhibits, the impairment rating evaluation (IRE) performed
by Dr. Kenneth Gentilezza under the Sixth Edition of the American Medical
Association’s Guides to the Evaluation of Permanent Impairment (AMA Guides)
(second printing April 2009). See, e.g., N.T. Hr’g, 10/8/20, at 5-6; IRE, 6/18/20, at
7. Claimant did not testify or otherwise dispute the IRE as Claimant indicated she
was challenging only the applicability of Act 111 because her injury predated the
Act. N.T. Hr’g, 10/8/20, at 8; accord WCJ Op., 1/15/21, at 3-4. The WCJ granted
Employer’s modification petition, reasoning that Employer had proven that
Claimant had a 14% whole body impairment, and therefore Claimant should receive
partial disability benefits. WCJ Op. at 4, 6. Claimant appealed to the Board, which
affirmed, and Claimant timely petitioned this Court for review. See Bd.’s Op.,
1/7/22.
II. ISSUE
On appeal, Claimant argues that because her injury predates the
enactment of Act 111, Act 111 cannot be retroactively applied. Claimant’s Br. at 8
(unpaginated). In Claimant’s view, Act 111 violates the Remedies Clause of the
2
Unless stated otherwise, we state the facts as set forth in the Board’s decision, which is
supported by substantial evidence of record. See, e.g., Notes of Testimony (N.T.) Hr’g, 8/14/20,
at 6. We add that the WCJ’s decision did not extensively discuss the background of this case.
2
Pennsylvania Constitution and contravenes Protz v. Workers’ Comp. Appeal Bd.
(Derry Area Sch. Dist.), 124 A.3d 406, 416 (Pa. Cmwlth. 2015) (Protz I), aff’d in
part and rev’d in part, 161 A.3d 827, 841 (Pa. 2017) (Protz II). Id. at 11-17.
Claimant relatedly argues that Act 111 lacks “sufficiently specific language to make
the law retroactive.” Id. at 17-18.
III. ANALYSIS3
A. Recent Case Law and the Legislative Response
A brief overview of the recent case law and statutory developments will
provide appropriate context to Claimant’s appeal. Under former Section 306(a.2)(2)
of the Act, 77 P.S. § 511.2 (repealed), the General Assembly authorized the use of
an IRE to determine a claimant’s disability status. Former Section 306(a.2)(2)
required a physician to perform an IRE in accordance with the methodology set forth
in “the most recent edition” of the AMA Guides. See 77 P.S. § 511.2(2) (repealed).
If the IRE yielded a whole-body impairment rating equal to or greater than 50%,
then the claimant was presumed to be totally disabled, whereas a claimant with an
impairment rating less than 50% was considered partially disabled. See id.4 At the
time former Section 306(a.2) was enacted, “the most recent edition” of the AMA
Guides was the Fourth Edition. Thereafter, the American Medical Association
issued a Fifth Edition and Sixth Edition of the AMA Guides.
In 2015, this Court determined that former Section 306(a.2) of the Act
was an unconstitutional delegation of legislative authority because it proactively
3
In a workers’ compensation appeal, our review is limited to determining whether an error
of law was committed, whether constitutional rights were violated, and whether necessary findings
of fact are supported by substantial evidence. Bryn Mawr Landscaping Co. v. Workers’ Comp.
Appeal Bd. (Cruz-Tenorio), 219 A.3d 1244, 1252 n.5 (Pa. Cmwlth. 2019) (citation omitted).
4
A change in disability status does not alter the amount of compensation received by a
claimant but limits the receipt of benefits to 500 weeks. See Section 306(b) of the Act, 77 P.S. §
512(1); accord WCJ Op. at 6.
3
approved new versions of the AMA Guides without review. See generally Protz I,
124 A.3d at 416. Rather than striking former Section 306(a.2) in its entirety, we
remanded the matter to the Board with instructions that any IRE must adhere to the
Fourth Edition of the AMA Guides, which was in effect at the time the General
Assembly enacted former Section 306(a.2). Id. Upon further review, our Supreme
Court affirmed this Court’s holding that former Section 306(a.2) impermissibly
delegated legislative power to a private entity. However, it concluded that the
offending language, i.e., “the most recent edition” of the AMA Guides, could not be
severed from the Act. Accordingly, the Supreme Court declared the entirety of
former Section 306(a.2) to be unconstitutional. Protz II, 161 A.3d at 841.
Subsequently, the General Assembly passed Act 111, which replaced
former Section 306(a.2) of the Act with new Section 306(a.3). Similarly, Section
306(a.3)(1) provides that once a claimant receives 104 weeks of total disability
compensation, an insurer or employer may require the claimant to submit to an IRE.
77 P.S. § 511.3. However, Section 306(a.3) of the Act enacted new standards for an
IRE. It expressly adopted the Sixth Edition of the AMA Guides (second printing
April 2009) as the basis for a qualified physician’s IRE, and it reduced the threshold
required for a total disability status from a 50% whole-body impairment rating to
35%. Id.5
Recently, in Pierson, this Court addressed the retroactive application of
Act 111. In that case, the claimant had sustained a work-related injury in 2014, prior
to the passage of Act 111. Pierson, 252 A.3d at 1171. The Board granted the
5
In Pennsylvania AFL-CIO v. Commonwealth, 219 A.3d 306, 317 (Pa. Cmwlth. 2019),
aff’d (Pa., No. 88 MAP 2019, filed Aug. 18, 2020) (per curiam), this Court determined that Section
306(a.3) of the Act does not constitute an unconstitutional delegation of legislative authority
because the General Assembly named and adopted a particular set of standards as its own.
4
employer’s petition to modify the claimant’s disability status from total to partial
based on an IRE performed after the effective date of Act 111. Id. at 1172. On
appeal to this Court, the claimant argued that (1) Act 111 cannot be applied
retroactively because it represents a substantive, not a procedural, change in the law;
and (2) applying Act 111 to injuries predating its enactment would impair his vested
disability rights in violation of the Remedies Clause. Id. at 1175.
In rejecting these arguments, we explained that “a vested right is one
that so completely and definitely belongs to a person that it cannot be impaired or
taken away without the person’s consent.” Id. at 1179 (cleaned up). Yet, we
observed, “there are reasonable expectations under the Act that benefits may
change.” Id.; see also Section 413(a) of the Act, 77 P.S. § 772 (providing that a
WCJ may “modify, reinstate, suspend, or terminate” benefits at any time “upon
proof that the disability of an injured” employee has changed). Thus, Act 111 did
not deprive claimants of a vested right but “simply provided employers with the
means to change a claimant’s disability status from total to partial by providing the
requisite medical evidence that the claimant has a whole body impairment of less
than 35%, after receiving 104 weeks of [total temporary disability] benefits.”
Pierson, 252 A.3d at 1179.
Further, the General Assembly used “clear language” that
employers/insurers were entitled to credit for the weeks of disability compensation
paid to an injured employee prior to the passage of Act 111. See id. at 1179-80
(citation omitted); see also Act 111, § 3(1) (“[A]n insurer shall be given credit for
weeks of total disability compensation paid prior to the effective date of this
paragraph.”), § 3(2) (same as applied to partial disability compensation). Therefore,
5
the employer credit provision was “explicitly given retroactive effect . . . by the
General Assembly.” Pierson, 252 A.3d at 1180.
B. Pierson is Dispositive
Our analysis in Pierson controls here. Claimant, like the claimant in
Pierson, sustained her work-related injury before the passage of Act 111. Employer,
like the employer in Pierson, sought to modify Claimant’s benefits based on an IRE
obtained after the Act’s effective date. Claimant, like the claimant in Pierson,
challenges the retroactivity of the employer credit provision of Act 111 and asserts
a vested right in her disability benefits. Therefore, based on our reasoning in Pierson,
we reject Claimant’s arguments. Accord Sochko v. Nat’l Express Transit Serv.
(Workers’ Comp. Appeal Bd.) (Pa. Cmwlth., No. 490 C.D. 2021, filed March 16,
2022); Hender-Moody v. Am. Heritage Fed. Credit Union (Workers’ Comp. Appeal
Bd.) (Pa. Cmwlth., No. 166 C.D. 2021, filed February 15, 2022); Dohn v. Beck n’
Call (Workers’ Comp. Appeal Bd.) (Pa. Cmwlth., No. 103 C.D. 2021, filed
September 20, 2021).6
IV. CONCLUSION
For these reasons, we conclude that the Board’s application of Act 111
in modifying Claimant’s benefits to partial disability status did not violate the
Remedies Clause found in article I, section 11 of the Pennsylvania Constitution
because Claimant does not have a vested right to workers’ compensation benefits.
Thus, we affirm the Board’s adjudication.
LORI A. DUMAS, Judge
6
We cite Sochko, Hender-Moody, and Dohn for their persuasive value pursuant to Rule
126(b)(1) of the Pennsylvania Rules of Appellate Procedure, Pa.R.A.P 126(b)(1), and Section
414(a) of this Court’s Internal Operating Procedures, 210 Pa. Code § 69.414(a).
6
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Choya Force, :
Petitioner :
:
v. : No. 63 C.D. 2022
:
Commonwealth of Pennsylvania :
(Workers’ Compensation Appeal :
Board), :
Respondent :
ORDER
AND NOW, this 10th day of November, 2022, the order of the Workers’
Compensation Appeal Board, entered January 7, 2022, is AFFIRMED.
LORI A. DUMAS, Judge | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482780/ | Third District Court of Appeal
State of Florida
Opinion filed November 10, 2022.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D22-0024
Lower Tribunal No. 21-341
________________
Z.B., A Juvenile,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Orlando A.
Prescott, Judge.
Carlos J. Martinez, Public Defender, and Nicholas Lynch, Assistant
Public Defender, for appellant.
Ashley Moody, Attorney General and Ivy R. Ginsberg, Assistant
Attorney General, for appellee.
Before EMAS, GORDO and BOKOR, JJ.
PER CURIAM.
Affirmed. Phantom of Clearwater, Inc. v. Pinellas County, 894 So. 2d
1011, 1020 (Fla. 2d DCA 2005) (“[T]he fact that an ordinance imposes
additional requirements on a person or business is not evidence of
conflict.”).
2 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482794/ | Third District Court of Appeal
State of Florida
Opinion filed November 10, 2022.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D22-1670
Lower Tribunal No. F18-22064B
________________
Jose Ernesto Mejia,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from
the Circuit Court for Miami-Dade County, Zachary James, Judge.
Jose Ernesto Mejia, in proper person.
Ashley Moody, Attorney General, for appellee.
Before FERNANDEZ, C.J., and MILLER, and BOKOR, JJ.
PER CURIAM.
Affirmed. See Fernandez v. State, 627 So. 2d 1 (Fla. 3d DCA 1993)
(Defendant is not entitled to credit for time served on house arrest.); and
Maniccia v. State, 931 So. 2d 1027 (Fla. 4th DCA 2006).
2 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482843/ | IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Meredith Buck, R.N., J.D., in her :
Official Capacity as Bucks County :
Coroner, :
Appellant :
:
v. : No. 1200 C.D. 2021
:
Diane Ellis-Marseglia, LCSW, :
Robert J. Harvey, Jr., and Gene :
DiGirolamo, in their Official :
Capacities as Bucks County :
Commissioners : Submitted: July 29, 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 10, 2022
Meredith Buck, R.N., J.D., in her Official Capacity as Bucks County Coroner
(Coroner), appeals from the Court of Common Pleas of Bucks County’s (Common
Pleas) September 27, 2021 interlocutory order, through which Common Pleas
granted in part and denied in part Appellees Diane Ellis-Marseglia, LCSW, Robert
J. Harvey, Jr., and Gene DiGirolamo, in their Official Capacities as Bucks County
Commissioners’ (collectively, Commissioners) Motion for Judgment on the
Pleadings. We quash Coroner’s appeal in part and, in addition, vacate Common
Pleas’ order in part and remand to the lower tribunal for further proceedings.
I. Background
On October 23, 2020, the Bucks County (County) Finance Department
approved the 2021 budget request that had been made by the Coroner’s Office.
Second Am. Compl. ¶14. Thereafter, at public hearings held on November 23, 2020,
and December 9, 2020, Commissioners issued a preliminary County budget proposal
for the then-upcoming year, one which provided the Coroner’s Office with nearly
the same amount of funds in 2021 that the Office had received through its County
budget allocation in 2020. Id. ¶¶15-16. Despite this initial budget proposal, however,
Commissioners ultimately enacted a final 2021 County budget on December 16,
2020, that cut the allocation for the Coroner’s Office by $1,033,300 compared to
2020, a sharp 66.8% decrease from the preceding year. Id. ¶18; see id., Ex. D at 2.
Coroner did not contemporaneously receive notice of or an explanation for this
funding cut. Rather, her contract requisitions for 2021 were denied as being over
budget on January 13, 2021, and the County’s purchasing department informed her
the following day that Commissioners had adopted a 2021 budget that decreased
funding for the Coroner’s Office by roughly two-thirds compared to 2020. Second
Am. Compl. ¶¶25-26. Coroner subsequently spoke with David Boscola, the
County’s chief financial officer, who told Coroner that Commissioners had
instructed him not to speak with her, as well as that the 2021 County budget only
funded the Coroner’s Office through April 20, 2021, rather than through the end of
that year. Id. ¶27. On January 15, 2021, Coroner’s attorney sent a letter to
Commissioners, in which he requested that they reverse this budget cut and instead
fund the Coroner’s Office at the level that had been approved by the County’s
Finance Office in October 2020. Id. ¶28, Ex. E at 1-2.
Commissioners did not respond to Coroner’s request, which prompted
Coroner to file suit against them in Common Pleas. Id. ¶28. Through this four-count
action, as articulated in her Second Amended Complaint, Coroner sought a writ of
mandamus directing Commissioners to comply with Section 1981 of the Second
2
Class County Code1 (Code) by enacting a 2021 County budget that adequately
funded the Coroner’s Office for the entire year. Coroner next claimed that
Commissioners violated the Pennsylvania Sunshine Act2 (Sunshine Act) by holding
private deliberations regarding the 2021 County budget. Coroner further requested
1
Act of July 28, 1953, P.L. 723, as amended, 16 P.S. § 4981. Section 1981(a) of the Code
reads as follows:
In counties of the second class the controller or in counties of the
second class A the commissioners shall annually prepare a proposed
budget for all funds for the next fiscal year no later than November
15 of the current fiscal year. Said budget shall reflect, as nearly as
possible, the estimated revenues and expenditures of the county for
the year for which the budget is prepared. It shall be unlawful to
prepare and advertise notice of a proposed budget when the same is
knowingly inaccurate. Where, upon any revision of the budget, it
appears that the estimated expenditures in the adopted budget will
be increased more than ten per cent in the aggregate over the
proposed budget, it shall be presumed that the tentative budget was
inaccurate, and such budget may not be legally adopted with any
such increases therein unless the same is again advertised once as in
the case of the proposed budget and an opportunity afforded to
taxpayers to examine the same and protest such increases. Said
budget shall be prepared on forms furnished as provided herein.
Final action shall not be taken on the proposed budget by the county
commissioners until after at least ten days public notice. The
proposed budget shall be published or otherwise made available for
public inspection, by all persons who may interest themselves, at
least twenty days prior to the date set for the adoption of the budget.
The county commissioners shall, after making such revisions and
changes therein as appear advisable, adopt a budget for the next
fiscal year prior to December 31 of the current fiscal year and
necessary appropriation measures required to put it into effect.
16 P.S. § 4981(a). Though the Code also allows commissioners of second class counties to make
supplemental appropriations and to “authorize the transfer, within the same fund, of any
unencumbered balance or any portion thereof from one spending agency to another . . . during the
last nine months of the fiscal year[,]” id. § 4981(c)-(d), there is nothing in Section 1981 that
suggests that commissioners are allowed to make partial year appropriations in an annual budget.
2
65 Pa. C.S. §§ 701-716.
3
preliminary and permanent injunctions compelling Commissioners to properly fund
the Coroner’s Office in 2021 and in the future. Finally, Coroner asked for a
declaratory judgment that Commissioners’ putatively partial and inadequate 2021
Coroner’s Office funding allocation was arbitrary, capricious, harmful to public
health and welfare, unlawful, and an instance of willful misconduct. Id. ¶¶49-100.
Commissioners then filed an Answer with New Matter on July 1, 2021, to which
Coroner responded on July 22, 2021. Common Pleas then held an on-record pretrial
conference on July 26, 2021.
On August 9, 2021, Commissioners filed their Motion for Judgment on the
Pleadings, through which they argued that each of Coroner’s claims failed as a
matter of law, that they were immune from suit by virtue of high public official
immunity, and that Coroner had failed to exhaust the legal remedies allegedly
available to her under Section 1981(d) of the Code3 with regard to her declaratory
judgment, injunctive relief, and mandamus claims, by failing to request additional
funding from Commissioners prior to filing suit. Mot. for J. on the Pleadings ¶¶10-
93. As such, Commissioners asserted that they were entitled to judgment in their
favor on all counts. See id. ¶¶26, 45, 56, 69, 93. On August 26, 2021, Coroner filed
a response to the Motion for Judgment on the Pleadings and a Counter-Motion for
Peremptory Judgment. Common Pleas then held oral argument regarding these
filings on September 17, 2021. Shortly thereafter, on September 27, 2021, Common
Pleas granted Commissioners’ Motion for Judgment on the Pleadings in part, as to
3
Section 1981(d) reads as follows: “The county commissioners shall have power to
authorize the transfer, within the same fund, of any unencumbered balance or any portion thereof
from one spending agency to another, but such action shall be taken only during the last nine
months of the fiscal year.” 16 P.S. §4981(d).
4
Coroner’s declaratory judgment, injunctive relief, and mandamus claims,4 but
denied it as to Coroner’s Sunshine Act claim. Reproduced Record (R.R.) at 305a-
06a. Coroner then appealed this order to our Court on October 26, 2021. On
November 8, 2021, Common Pleas dismissed Coroner’s Counter-Motion for
Peremptory Judgment, with the consent of all of the litigants in this matter. Id. at
315a.
Common Pleas subsequently issued a suite of three opinions in response to
this appeal. In its December 21, 2021 opinion, Common Pleas stated that the appeal
was interlocutory because of Coroner’s unresolved Sunshine Act claim and should
consequently be quashed. Id. at 307a-10a. Second, via its supplemental January 7,
2022 opinion, Common Pleas took issue with Coroner’s argument, as expressed in
her Statement of Errors Complained of on Appeal, that Common Pleas had
erroneously dismissed the Counter-Motion for Peremptory Judgment, noting that
this dismissal had been voluntarily agreed to by the parties. Id. at 316a-17a. Finally,
in its February 11, 2022 opinion, Common Pleas explained that it had considered
Commissioners’ Motion for Judgment on the Pleadings using the standard of review
applicable to summary judgment motions because, in Common Pleas’ view, the
“unique processing of the case” made those two distinct types of motions
interchangeable in this instance. Id. at 327a-30a. Accordingly, and despite the fact
that Commissioners had unambiguously elected to file a motion for judgment on the
pleadings, Common Pleas concluded on the record before it that Commissioners
4
In granting judgment for Commissioners regarding these counts, Common Pleas ruled
that Commissioners’ passage of the 2021 County budget and their financial allocations to the
Coroner’s Office had complied with Section 1981 of the Code, and based this conclusion in part
upon statements made by the parties’ attorneys during oral argument regarding the County’s
budgeting process and how the Coroner’s Office had been funded during the 2021 fiscal year. See
R.R. at 332a-40a.
5
were entitled to summary judgment in their favor regarding Coroner’s declaratory
judgment, injunctive relief, and mandamus claims. Id. at 331a-43a.
II. Discussion
Coroner presents four arguments for our consideration, which we summarize
as follows. First, Common Pleas’ September 27, 2021 order is appealable by right
on an interlocutory basis, with regard to the disposition of Coroner’s declaratory
judgment and injunctive relief claims, pursuant to the Pennsylvania Rules of
Appellate Procedure. Coroner’s Br. at 15-19. Second, Common Pleas erred by
applying the summary judgment standard when considering Commissioners’
Motion for Judgment on the Pleadings and, in addition, by treating statements made
by Commissioners’ attorney at the pretrial conference as evidence. Id. at 20-23.
Third, Common Pleas erred by granting judgment on the pleadings in
Commissioners’ favor regarding Coroner’s declaratory judgment claim, because
Commissioners have a statutorily mandated obligation to enact a budget that funds
all of the County’s row offices (including the Coroner’s Office) for a full year, not a
portion thereof. Id. at 23-33. Finally, Common Pleas improperly granted judgment
on the pleadings regarding Coroner’s request for injunctive relief, as Coroner was
entitled by law to an injunction that barred Commissioners from making budget
appropriations to the Coroner’s Office that covered less than an entire fiscal year.
Id. at 34-35.
With regard to Coroner’s first argument, regarding the appealability of the
September 27, 2021 order, it is axiomatic that “[t]his court has jurisdiction to hear
appeals from final orders, interlocutory appeals as of right and interlocutory appeals
by permission.” Contact II, Inc. v. Pa. State Horse Racing Comm’n, 664 A.2d 181,
183 (Pa. Cmwlth. 1995). A final order is defined in pertinent part by the
6
Pennsylvania Rules of Appellate Procedure as one that “disposes of all claims and
of all parties” or one that disposes of fewer than all claims and parties, but which the
relevant trial court or governmental body has expressly deemed final due to a
determination “that an immediate appeal would facilitate resolution of the entire
case.” Pa. R.A.P. 341(b)(1), (b)(3). Additionally, interlocutory appeals are expressly
permitted by right in a number of situations, including most of those that involve
injunctive relief claims. Pa. R.A.P. 311(4).5 Thus, as Common Pleas’ September 27,
2021 order granted judgment in Commissioners’ favor regarding Coroner’s request
for preliminary and permanent injunctions, that order is appealable by right, on an
interlocutory basis, to the extent it disposed of that specific claim. Id.
The same cannot be said, however, for Common Pleas’ disposition of
Coroner’s declaratory judgment claim. Though Pennsylvania Rule of Appellate
Procedure 311 does not explicitly state that interlocutory appeals are authorized by
right regarding orders that address declaratory judgment claims, it does allow for
such appeals from “[a]n order that is made final or appealable by statute or general
rule, even though the order does not dispose of all claims and of all parties.” Pa.
R.A.P. 311(8). Per Section 7532 of the Declaratory Judgment Act:
Courts of record, within their respective jurisdictions, shall
have power to declare rights, status, and other legal
relations whether or not further relief is or could be
claimed. No action or proceeding shall be open to
objection on the ground that a declaratory judgment or
decree is prayed for. The declaration may be either
affirmative or negative in form and effect, and such
declarations shall have the force and effect of a final
judgment or decree.
5
There are a handful of exceptions to this rule, but, as they deal with injunctions entered
in divorce decrees and after trials, none of them are applicable here. See Pa. R.A.P. 311(4)-(4)(ii).
7
42 Pa. C.S. § 7532. Due to this statutory language, certain interlocutory orders
involving declaratory judgment claims are immediately appealable by right. Pa.
Mfrs.’ Ass’n Ins. Co. v. Johnson Matthey, Inc., 188 A.3d 396, 399 (Pa. 2018). In
determining whether such an order is immediately appealable, however, an appellate
court must consider two questions. First, “what is the effect of the lower court’s
decision on the scope of the litigation[?]” Id. Second, “what practical effect does the
[lower] court’s decision have on the ultimate outcome of the case[?] . . . If the order
in question merely narrows the scope of the litigation and does not resolve the
entirety of the parties’ eligibility for declaratory relief, then the order is interlocutory
and not immediately appealable.” Id. at 399-400 (citations omitted). Furthermore,
and independent of this two-part test, an interlocutory order that disposed of a
declaratory judgment claim is not immediately appealable by right unless that order
also effectively resolved6 any and all other civil claims put forth by the litigants in
the underlying matter. See Schmitt v. State Farm Mut. Auto. Ins. Co., 245 A.3d 678,
681-86 (Pa. Super. 2021);7 see also U.S. Orgs. for Bankr. Alternatives, Inc. v. Dep’t
of Banking, 26 A.3d 474, 478 (Pa. 2011) (“[A]n order in a declaratory judgment
action, which merely dismisses one or some of several alternative theories for relief
without ultimately deciding the case, is not appealable under [Pennsylvania] Rule
[of Appellate Procedure] 341.”). Given that Commissioners’ Motion for Judgment
on the Pleadings was denied in part, with regard to Coroner’s Sunshine Act claim,
Common Pleas’ September 27, 2021 order did not effectively dispose of the entirety
6
Effectively resolved, in the sense that the challenged order, “in essence, declared that the
[party pursuing declaratory relief] did not have any viable theory of recovery[.]” Pa. Bankers Ass'n
v. Pa. Dep’t of Banking, 948 A.2d 790, 799 (Pa. 2008).
7
“In general, Superior Court decisions are not binding on this Court, but they offer
persuasive precedent where they address analogous issues.” Lerch v. Unemployment Comp. Bd. of
Rev., 180 A.3d 545, 550 (Pa. Cmwlth. 2018).
8
of Coroner’s lawsuit.8 As such, Common Pleas’ adjudication of Coroner’s
declaratory judgment claim is not appealable at this stage in the proceedings.
Thus, the only portion of Common Pleas’ September 27, 2021 order that is
appealable on an interlocutory basis is that which disposed of Coroner’s request for
injunctive relief. We consequently turn to Coroner’s second argument, regarding
whether Common Pleas applied the correct legal standard in ruling that
Commissioners were entitled to judgment in their favor as to that claim.
A motion for judgment on the pleadings should be granted
only where the pleadings demonstrate that no genuine
issue of fact exists and the moving party is entitled to
judgment as a matter of law. Hammerstein v. Lindsay,
M.D., . . . 655 A.2d 597, 600 ([Pa. Super.] 1995). In
reviewing [a] trial court’s decision to grant judgment on
pleadings, the scope of review of [an] appellate court is
plenary; [the] reviewing court must determine if the action
of [the] trial court was based on clear error of law or
whether there were facts disclosed by pleadings which
should properly go to jury. An appellate court must accept
as true all well-pleaded facts of the party against whom the
motion is made, while considering against him only those
facts which he specifically admits. Neither party can be
deemed to have admitted either conclusions of law or
unjustified inferences. Id. at 600-601.
In conducting its inquiry, [a] court should confine itself to
the pleadings themselves and any documents or exhibits
properly attached to them. Only when the moving party’s
case is so clear and free from doubt such that a trial would
prove fruitless will an appellate court affirm a [lower
court’s ruling on a] motion for judgment on the pleadings.
Id. at 601.
Newberry Twp. v. Stambaugh, 848 A.2d 173, 175 n.1 (Pa. Cmwlth. 2004).
8
We note that, should Common Pleas determine that Commissioners handled the 2021
County budget process in a manner that violated the Sunshine Act, it may declare that budget void
at its discretion. See 65 Pa. C.S. §714.
9
Here, Common Pleas admits that it reviewed Commissioners’ Motion for
Judgment on the Pleadings not through this narrow standard, but instead by using
the more expansive one applicable to summary judgment motions. See R.R. at 327a-
43a. In doing so, Common Pleas relied upon not just the law, including Section 1981
of the Code, and the pleadings themselves, but upon statements of alleged fact
regarding the County’s budgeting process, as well as about how the Coroner’s Office
had been funded, that parties’ attorneys made at the aforementioned July 26, 2021
and September 17, 2021 hearings. See id. at 332a-40a. In essence, Common Pleas
handled these statements as if they were testimony and then used this “testimony”
to support their determinations that Commissioners, through its exercise of
budgetary discretion, had complied with Section 1981 and, in addition, had
eventually provided full funding for the Coroner’s Office through supplemental
allocations. See id. Common Pleas’ choice to treat the Motion for Judgment on the
Pleadings as a summary judgment motion, suffice it to say, was legally erroneous.
Common Pleas attempts to justify this mistake by arguing that there was
functionally no difference in this instance between these two kinds of motions,
because, in the lower court’s view, the parties somehow agreed that “a motion for
judgment on the pleadings or a motion for summary judgment were interchangeable
. . . vehicle[s] to get judgment[.]” See id. at 327a-30a. This assertion, however, is
belied by the fact that Commissioners indisputably filed a motion for judgment on
the pleadings, not a motion for summary judgment. See id. at 1a-42a
(Commissioners’ Motion for Judgment on the Pleadings and supporting brief).
Despite Common Pleas’ apparent belief to the contrary, it had no authority to
perform judicial alchemy on Commissioners’ Motion for Judgment on the Pleadings
and, thus, could not alter its elemental nature, even if doing so would have allowed
10
Coroner’s lawsuit to be disposed of more expediently. Cf. Coulter v. Ramsden, 94
A.3d 1080, 1088 (Pa. Super. 2014) (“[A c]ourt will not act as counsel and will not
develop arguments on behalf of [a party].”); Fraisar v. Gillis, 892 A.2d 74, 76 (Pa.
Cmwlth. 2006) (“A court must remain neutral and cannot act as the attorney for [a]
litigant[.]”). As such, Common Pleas was required to use the correct standard, i.e.,
the one applicable to motions for judgment on the pleadings, when adjudicating
Commissioners’ motion filing. Given this, we are constrained to conclude that
Common Pleas committed an error of law by, in essence, granting summary
judgment in Commissioners’ favor regarding Coroner’s injunction claim, because
Commissioners did not actually seek that type of relief.
III. Conclusion
In light of the foregoing, we quash Coroner’s interlocutory appeal in part, to
the extent that appeal challenged the portion of Common Pleas’ September 27, 2021
order that granted judgment in Commissioners’ favor regarding Coroner’s
declaratory judgment claim. Additionally, we vacate that order in part, regarding
Common Pleas’ disposition of Coroner’s request for injunctive relief, and remand to
the lower court with instructions that it use the proper legal standard when ruling
upon that portion of Commissioners’ Motion for Judgment on the Pleadings.9
____________________________
ELLEN CEISLER, Judge
Judge Covey did not participate in the decision of this case.
9
Given our disposition of this matter, we decline to consider the merits of Coroner’s
remaining arguments. Furthermore, though we do not have jurisdiction at this point to
substantively address the rest of Common Pleas’ September 27, 2021 order, in light of the legal
reasoning expressed herein, we encourage the lower tribunal to consider revisiting the entirety of
that ruling.
11
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Meredith Buck, R.N., J.D., in her :
Official Capacity as Bucks County :
Coroner, :
Appellant :
:
v. : No. 1200 C.D. 2021
:
Diane Ellis-Marseglia, LCSW, :
Robert J. Harvey, Jr., and Gene :
DiGirolamo, in their Official :
Capacities as Bucks County :
Commissioners :
ORDER
AND NOW, this 10th day of November, 2022, it is hereby ORDERED:
1. Appellant Meredith Buck, R.N., J.D., in her Official Capacity as Bucks
County Coroner’s (Coroner) appeal regarding the Court of Common Pleas of Bucks
County’s (Common Pleas) September 27, 2021 order is QUASHED IN PART, to
the extent this appeal challenged Common Pleas’ granting of judgment in favor of
Appellees Diane Ellis-Marseglia, LCSW, Robert J. Harvey, Jr., and Gene
DiGirolamo, in their Official Capacities as Bucks County Commissioners, regarding
Coroner’s declaratory judgment claim;
2. Common Pleas’ September 27, 2021 order is VACATED IN PART,
with regard to that order’s disposal of Coroner’s injunctive relief claim;
3. This matter is REMANDED to Common Pleas for proceedings
consistent with the foregoing opinion.
Jurisdiction relinquished.
____________________________
ELLEN CEISLER, Judge | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482857/ | Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 19-CV-1032
IN RE: THE BRIGHT IDEAS COMPANY, INC., APPELLANT.
Appeal from the Superior Court
of the District of Columbia
(CAT-5718-19)
(Hon. Anthony C. Epstein, Reviewing Judge)
(Argued October 26, 2021 Decided November 10, 2022)
John A. Galbreath for appellant.
Mary L. Wilson, Senior Assistant Attorney General at the time, with whom
Karl A. Racine, Attorney General for the District of Columbia, Loren L. AliKhan,
Solicitor General at the time, Caroline S. Van Zile, Principal Deputy Solicitor
General at the time, and Carl J. Schifferle, Deputy Solicitor General, were on the
brief, for appellee.
Before BECKWITH, EASTERLY, and DEAHL, Associate Judges.
DEAHL, Associate Judge: This appeal, while superficially about a $100
speeding ticket, raises far more important stakes about an institutional litigant’s
strategic attempts to evade this court’s review. After successfully defending a $100
speeding ticket through two layers of agency review and before the Superior Court,
the District of Columbia asked this court to summarily affirm and uphold the ticket.
2
When we denied that motion, and instead asked for supplemental briefing and
indicated we would hear oral argument in the matter—preliminary indications that
the challenge to the ticket may have some merit—the District “voided” the ticket,
tried to refund the already-paid fine, and now urges us to dismiss the appeal as moot.
We decline that invitation. Appellant, the Bright Ideas Company, has raised
constitutional and regulation-based challenges to how the District enforces its traffic
laws. The District’s decision to void its ticket at the twenty-fifth hour—in this rare
challenge to a speeding ticket that persists all the way to this court—has not rendered
those challenges moot. The voluntary cessation doctrine instructs that one party’s
“voluntary cessation of a challenged practice does not moot a case unless
‘subsequent events make it absolutely clear that the allegedly wrongful behavior
could not reasonably be expected to recur.’” Trinity Lutheran Church of Columbia,
Inc. v. Comer, 137 S. Ct. 2012, 2019 n.1 (2017) (quoting Friends of the Earth, Inc.
v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189 (2000)). We have no such
assurance here, as the District has given us no reason to think it has changed the
enforcement practices Bright Ideas now challenges. Rather, the District has made it
reasonably clear that it has not altered its challenged enforcement practices at all and
that its one-off act of voiding this ticket was done only to avoid a potential precedent-
setting loss. This court will not indulge such strategic attempts to evade review,
3
particularly where the District already took a bite at the apple when it unsuccessfully
sought summary affirmance.
On the merits, we agree with the Bright Ideas Company that the District
misapplied its traffic regulations in upholding the issued citation. When the District
cites a driver for violating a posted speed limit, as here, a viable defense is that the
posted speed limit sign is not “sufficiently legible to be seen by an ordinarily
observant person.” 18 D.C.M.R. § 2000.5. The District’s contrary view, that
whenever the posted limit is illegible, it may always resort to enforcing the so-called
default speed limit, see 18 D.C.M.R. § 2200.6, is not a reasonable interpretation of
the pertinent traffic regulations. We therefore reverse the agency’s order upholding
the citation.
I.
This case stems from a ticket issued after an automated traffic camera
photographed a car registered to Bright Ideas speeding on the 2900 block of Military
Road NW. Bright Ideas is a Maryland company whose sole proprietor was driving
the vehicle and would later represent his company as counsel throughout the legal
proceedings, including in this appeal. The ticket listed the car’s speed as 36 mph,
the “Posted Speed” as 25 mph, the infraction as “Speed 11-15” mph over the limit,
4
and the fine as $100. Bright Ideas challenged the ticket before a Department of
Motor Vehicles Adjudication Services Hearing Examiner, arguing that there was “no
clear signage of the speed limit” on that stretch of road, where the lone speed limit
sign was poorly positioned and partially obscured by tree branches. The hearing
examiner upheld the ticket, reasoning that “[i]n the District of Columbia, if you do
not know what the posted speed limit is, the law requires you to travel at 25 miles
per hour.” See 18 D.C.M.R. § 2200.6 (2019).
Bright Ideas appealed to the Department of Motor Vehicles’ Traffic
Adjudication Appeals Board, which also upheld the ticket. In its decision, the
Appeals Board considered two traffic regulations. First, it cited 18 D.C.M.R.
§ 2200.2 for the proposition that the 25 mph posted speed limit on this stretch of
Military Road was set by the Mayor and “determined to be safe and reasonable under
the conditions found to exist at the location.” Second, and in the alternative, it
looked to 18 D.C.M.R. § 2200.6, which at the time provided that “[o]n all streets
and highways, unless otherwise designated in accordance with [18 D.C.M.R.]
§ 2200.2, the maximum lawful speed shall be twenty-five miles per hour (25 mph).” 1
1
In June 2020, this regulation was amended to reduce the default speed limit
to 20 mph. See 67 D.C. Reg. 7539 (June 12, 2020) (emergency rulemaking); 67
D.C. Reg. 11238 (Sept. 25, 2020) (final regulation).
5
Echoing the hearing examiner’s rationale, the unanimous three-member Appeals
Board reasoned that if Bright Ideas’ driver “did not observe a speed limit sign stating
otherwise, he should have observed the 25 mph [default] limit under the
regulations.”
Bright Ideas next petitioned the Superior Court for leave to challenge the
Appeals Board’s decision. See D.C. Code § 50-2304.05. In its petition, the company
asserted for the first time that the District was engaged in an unconstitutional practice
of “conduct[ing] speed camera surveillance and ticketing in locations where speed
limits are not reliably posted, and where drivers would not reasonably expect the
speed limit to be just 25 mph.” Bright Ideas contended that when drivers then
challenge the speed limit as improperly posted, the District “sidesteps the protests
by stating that it does not matter whether the speed limit is properly posted, because
any street in the District has a speed limit of just 25 mph if not posted” under 18
D.C.M.R. § 2200.6. The company argued that this scheme violated its due process
rights because, for speed limits, fair notice “means reliably posting those limits so
that drivers can regulate their behavior accordingly.”
The Superior Court denied Bright Ideas’ petition, finding that the “adequacy
of the signage” was “not legally relevant.” Citing the default speed limit, see 18
6
D.C.M.R. § 2200.6, it reasoned that if a speed limit sign “did not notify Bright Ideas
of the speed limit,” District law “imposed a 25-mph speed limit.” The court likewise
rejected Bright Ideas’ constitutional arguments, concluding that drivers have
sufficient notice of the District’s default speed limit.
Bright Ideas now appeals to this court. After Bright Ideas filed its opening
brief, the District asked us to summarily affirm the trial court’s order. See Carl v.
Tirado, 945 A.2d 1208, 1209 (D.C. 2008) (summary affirmance is proper when the
movant shows that “the basic facts are both uncomplicated and undisputed, and that
the lower court’s ruling rests on a narrow and clear-cut issue of law”). We denied
the District’s motion and directed it to file a supplemental brief concerning the
constitutional issues raised by Bright Ideas. We also informed the parties that the
case would be scheduled for argument on the regular calendar. 2
2
This court’s internal operating procedures explain that cases may be placed
on the summary calendar, which means they will be submitted without oral argument
unless otherwise ordered, or on the regular calendar, which means we will hear
argument unless otherwise ordered. D.C. App. I.O.P. VI. A minority of appeals are
placed on the regular calendar, which is reserved for cases where it appears that “the
decisional process will be significantly aided by oral argument,” after considering
factors like whether the case raises “an issue of first impression,” whether “an
existing rule of law may be criticized or questioned,” and whether “a substantial
issue as to the constitutionality of a statute may be raised.” Id. at VI-B.
7
The District did not submit the supplemental brief as directed. Instead, after
seeking and receiving multiple extensions to file, it notified this court that it was
“taking steps to provide the relief [Bright Ideas] request[ed]” by commencing the
process to void the speeding ticket and refund Bright Ideas the already-paid $100
fine. The District then filed a motion to dismiss the appeal as moot, stating that it
had provided “all the relief available to the Company in this action.” Bright Ideas
opposed the motion, arguing that the District was attempting to “sidestep” judicial
review of its practices. 3
We now consider the District’s motion to dismiss this appeal as moot, and
because we conclude the appeal is not moot, we address the merits of Bright Ideas’
challenge to the speeding ticket.
II.
We begin with the question of mootness. “A case is moot when the legal
issues presented are no longer ‘live’ or when the parties lack a legally cognizable
interest in the outcome.” Cropp v. Williams, 841 A.2d 328, 330 (D.C. 2004) (citation
3
Bright Ideas further stated that it never received a refund check from the
District, a claim renewed at oral argument. We need not resolve this factual dispute,
however, as the status of the District’s refund check does not affect our analysis.
8
omitted). Thus, while an appeal is pending, “an event that renders relief impossible
or unnecessary also renders that appeal moot.” Settlemire v. D.C. Off. of Emp’t
Appeals, 898 A.2d 902, 905 (D.C. 2006) (quoting Vaughn v. United States, 579 A.2d
170, 175 n.7 (D.C. 1990)). 4
There are several important exceptions to this rule, however. As relevant here,
“it is well established that ‘voluntary cessation of allegedly illegal conduct does not
deprive the tribunal of power to hear and determine the case.’” Mbakpuo v.
Ekeanyanwu, 738 A.2d 776, 782 (D.C. 1999) (quoting United States v. W.T. Grant
Co., 345 U.S. 629, 632 (1953)). This exception “traces to the principle that a party
should not be able to evade judicial review, or to defeat a judgment, by temporarily
altering questionable behavior.” City News & Novelty, Inc. v. City of Waukesha, 531
U.S. 278, 284 n.1 (2001). A party claiming mootness because of its voluntary
cessation of conduct faces “the heavy burden” of demonstrating that its challenged
activity will not resume, so that “there is no reasonable expectation that the wrong
4
The District’s courts are Article I courts and are not bound by Article III’s
strictures to resolve only “cases” or “controversies.” Animal Legal Def. Fund v.
Hormel Foods Corp., 258 A.3d 174, 181 (D.C. 2021). While we thus enjoy some
“flexibility in regard to mootness not possessed by the federal courts,” we
nevertheless hew closely to the jurisdictional decisions of Article III tribunals “to
promote sound judicial economy.” Atchison v. District of Columbia, 585 A.2d 150,
153 (D.C. 1991) (quoting District of Columbia v. Walters, 319 A.2d 332, 338 n.13
(D.C. 1974)).
9
will be repeated.” Mbakpuo, 738 A.2d at 783 (quoting W.T. Grant Co., 345 U.S. at
633).
Our bottom-line inquiry under the voluntary cessation doctrine is thus whether
the District has carried its burden of making “absolutely clear that the allegedly
wrongful behavior could not reasonably be expected to recur.” Laidlaw, 528 U.S.
at 189 (citation omitted). While we have a scarcity of our own precedents
elucidating the voluntary cessation doctrine’s contours, federal courts of appeals
further scrutinize whether the purported cessation “appears to be the result of
substantial deliberation, or is simply an attempt to manipulate jurisdiction.” Nat’l
Ass’n of Bds. of Pharmacy v. Bd. of Regents of the Univ. Sys. of Ga., 633 F.3d 1297,
1310 (11th Cir. 2011) (“NABP”); see also Alaska v. U.S. Dep’t of Ag., 17 F.4th 1224,
1229-30 (D.C. Cir. 2021) (declining to apply voluntary cessation exception to
mootness because the appellant “has not argued, nor could it plausibly argue,” that
appellees “acted in order to manipulate the judicial process”). We agree with those
10
courts that this is a crucial aspect of the overarching inquiry, and consider it in Part
II.B.
A.
The core of our voluntary cessation inquiry is whether we have sufficient
assurances that the District has unambiguously ceased the challenged conduct—i.e.,
that it has stopped enforcing the default speed limit when there is an otherwise
posted, but purportedly illegible, speed limit sign. 5 The reason for this inquiry is
5
One wrinkle in this appeal is that the default speed limit at the time of this
citation was the same as the posted speed limit on a supposedly illegible sign. The
District now points to that fact for the first time on appeal, arguing that at least in
that limited circumstance—when the posted sign and the default speed limit are the
same—the District can enforce the default speed limit when the posted sign is
illegible. That may be a plausible reading of the relevant regulations, but it is not
the one adopted by the hearing examiner or the Appeals Board (or the Superior
Court). They instead adopted the sweeping reasoning that whenever a speed limit
sign is illegible, the default speed limit applies. Because, with rare exceptions not
implicated here, “an administrative order can only be sustained on the grounds relied
on by the agency,” Abramson Assocs., Inc. v. D.C. Dep’t of Emp’t Servs., 596 A.2d
549, 554 (D.C. 1991) (quoting Long v. D.C. Dep’t of Emp’t Servs., 570 A.2d 301,
302 (D.C.1990)), we do not consider this alternative basis for affirmance urged for
the first time on appeal. See Sewell v. Walker, 278 A.3d 1175, 1177 (D.C. 2022)
(“We ordinarily do not consider issues raised for the first time on appeal.” (citation
omitted)). Under different circumstances we might remand this more nuanced
reading of the regulations for the agency’s consideration, but here, no party has asked
for such a remand, and we see little point in one given the voided ticket and
apparently refunded fine.
11
that without strong evidence that a dispute has come to a complete and permanent
end, a court would risk leaving a defendant “free to return to his old ways” when
dismissing a case. Laidlaw, 528 U.S. at 189 (citation omitted). As the party
asserting mootness, the District bears the “heavy burden” of establishing that it has
ceased the challenged conduct. Id.
In this case, there is no evidence that the District has ceased the challenged
conduct. All signals and representations are to the contrary. The District never
represented in its pleadings, nor could it represent when pressed at oral argument,
that it has undertaken some formal (or even informal) change in its traffic
enforcement practices. Cf. Ragsdale v. Turnock, 841 F.2d 1358, 1365-66 (7th Cir.
1988) (finding a consistent, albeit unpublicized, policy of non-enforcement
sufficient to render a challenge moot). It has not amended the traffic regulations at
issue in any relevant way. 6 Cf. N.M. Health Connections v. U.S. Dep’t of Health &
Hum. Servs., 946 F.3d 1138, 1161 (10th Cir. 2019) (finding challenge moot after an
agency replaced the challenged regulations). Indeed, the only action the District
appears to have taken is to void the lone ticket in this case, an action that it
acknowledges it “will not necessarily [do] in future cases.” Far from “persuading
6
As noted supra note 1, the District has reduced the default speed limit to 20
mph, but that is not material to the issue at hand.
12
the court that the challenged conduct cannot reasonably be expected to start up
again,” Laidlaw, 528 U.S. at 189 (citation omitted), we are left with the firm
impression that the District continues its challenged enforcement practices.
The District makes four arguments in response, none of which is persuasive.
First, it stresses that “there is no evidence of any systemic illegality or routine
reliance on the default speed limit that could recur.” But that places the burden on
the wrong party. Because this is a case of voluntary cessation, it is the District’s
burden to prove that the allegedly wrongful conduct will not recur, not Bright Ideas’
to prove that it will. See Hardaway v. D.C. Hous. Auth., 843 F.3d 973, 980 (D.C.
Cir. 2016) (criticizing a similar argument by the District as “ignor[ing] the Supreme
Court’s command that ‘the party asserting mootness’ must carry the ‘heavy burden’
of proving mootness through cessation” (quoting Laidlaw, 528 U.S. at 189)). So
long as “there exists some cognizable danger of recurrent violation,” it is the
District’s burden to make it absolutely clear that there will be no such recurrence.
Mbakpuo, 738 A.2d at 782 (citation omitted). The District’s bald assertion that “this
is not a legal issue that arises frequently . . . in this Court” fails to provide such
13
clarity. 7 And in any case, the danger of recurrence is readily cognizable given the
ubiquity with which the District issues automated speeding citations; in just the first
half of this fiscal year, the District issued over 600,000 tickets based on images
captured by traffic cameras, including 4,866 to drivers captured by the same camera
as Bright Ideas (i.e., eastbound on the 2900 block of Military Road NW). 8 Within
this panopticon, speeding tickets have become a question of “when” and “how
often,” not “if,” for many of the District’s drivers. 9 Some of them are bound to
complain about a posted speed limit’s legibility.
This appeal to uncertainty falls especially flat coming from the District, which
is uniquely positioned to represent what its practices are, whether they have changed,
and how frequently it enforces its traffic regulations in the manner now under attack.
7
The time and resources necessary to raise a challenge to a civil traffic
infraction all the way to this court are orders of magnitude higher than simply paying
the ticket, making such challenges vanishingly rare.
8
These data were reported to the Council pursuant to D.C. Code § 50-2209.21.
See District Dep’t of Transp., Automated Traffic Enforcement Semi-Annual Report
11-12 (Sept. 28, 2022), https://lims.dccouncil.gov/downloads/LIMS/51300/
Introduction/RC24-0222-Introduction.pdf; https://perma.cc/54MF-8U7Y.
9
The record also makes clear that Bright Ideas itself stands a cognizable
danger of being in this same place again if we do not rule on its current challenge.
When Bright Ideas made its initial appearance before the hearing examiner, it
learned that a mere fifteen days after the challenged ticket was issued, it received
another traffic citation that it had yet to receive notice of.
14
Yet it has never sought to supplement the record with any evidence that it has ceased
the challenged conduct, nor has it represented in its pleadings or at oral argument
that it has ceased its challenged enforcement practices. See Wright v. Thomas D.
Walsh, Inc., 856 A.2d 1108, 1110 n.6 (D.C. 2004) (refusing to consider proffered
evidence of mootness where the parties had never moved to supplement the record
with evidence of it); Brown v. Hornstein, 669 A.2d 139, 141 (D.C. 1996) (same). Its
unwillingness to do so is not a point in its favor. The record before us also suggests
this is, in fact, a recurring issue at the agency level. Neither the hearing examiner
nor the Appeals Board hinted that this was some novel issue of first impression.
Both invoked the default speed limit with virtually no analysis of the relevant
regulations—the hearing examiner without so much as citing a regulation—as if they
had done so before. Neither intimated that this was their first time addressing the
defense of an illegible speed limit sign, and there are indications to the contrary.
Second, the District notes that some courts afford a “presumption of good
faith” to public officials and asks that we likewise treat its claims of cessation with
“some solicitude.” See Sossamon v. Lone Star State of Tex., 560 F.3d 316, 325 (5th
Cir. 2009). Neither this court nor the Supreme Court has recognized such a
presumption, however, and it has forceful critics. See Joseph C. Davis & Nicholas
R. Reaves, The Point Isn’t Moot: How Lower Courts Have Blessed Government
15
Abuse of the Voluntary-Cessation Doctrine, 129 Yale L.J. F. 325, 328 (2019) (“[A]
hard look at both the theoretical and practical justifications for the voluntary-
cessation doctrine suggests [the good-faith presumption is unfounded]. Government
officials have stronger incentives and a greater ability to engage in the strategic
mooting of cases that this doctrine is designed to prevent.”).
At a more basic level, the District has not actually made a claim of cessation
to which we might afford a presumption of good faith. Even if we were to recognize
this presumption, it does not operate when the government’s change-of-heart is
“mere litigation posturing.” Sossamon, 560 F.3d at 325. Instead, it typically only
comes into play when there is some formal change in government policy, typically
via legislative or regulatory amendment, which will “usually [be] enough to render
a case moot, even if the legislature possesses the power to reenact the statute after
the lawsuit is dismissed.” Libertarian Party of Ark. v. Martin, 876 F.3d 948, 951
(8th Cir. 2017) (quoting Teague v. Cooper, 720 F.3d 973, 977 (8th Cir. 2013));
accord N.Y. State Rifle & Pistol Ass’n, Inc. v. City of New York, 140 S. Ct. 1525,
1526 (2020) (per curiam). The presumption does not extend to bare promises amidst
litigation that some practice has been permanently abandoned. Wall v. Wade, 741
F.3d 492, 498 (4th Cir. 2014) (“[B]ald assertions of a defendant—whether
governmental or private—that it will not resume a challenged policy fail to satisfy
16
any burden of showing that a claim is moot.”). And even if it did, the District has
made no such promise. At oral argument, counsel for the District disclaimed any
change in enforcement policy. That hamstrings its mootness claim. See 13C Charles
Allen Wright & Arthur R. Miller, Federal Practice and Procedure Jurisdiction §
3533.7 (3d ed., 2022 update) (“Discontinuance claims present little difficulty when
it is shown that the challenged activities in fact continue.”).
Third, the District cites to Thorn v. Walker, 912 A.2d 1192 (D.C. 2006), as an
example of a case that we found to be moot despite one party’s voluntary cessation
of challenged activity. Thorn is inapposite. That case concerned a suit to compel
the sale of real property in which the seller, after losing in the trial court and before
we considered her appeal, voluntarily transferred the property to the buyer, yet still
sought to maintain her appeal. Id. at 1196. It was the buyer who argued that the
transfer mooted any further litigation and we agreed, finding that the seller’s transfer
left her with no relief to seek on appeal. Id. at 1196-97. In other words, Thorn is
the inverse of this situation, where the party who voluntarily ceased the challenged
conduct wanted the appeal to proceed, despite the other party urging that the case be
dismissed as moot. The concerns that the voluntary cessation doctrine is designed
to address are not implicated in that scenario, so it is no wonder that the doctrine was
not discussed in Thorn. There is no chance that the seller was trying to strategically
17
moot the case with her voluntary conduct where she, in fact, was the only party who
wanted the appeal to proceed.
Far more analogous is Hardaway v. D.C. Housing Authority from the D.C.
Circuit, a case in which the D.C. Housing Authority initially denied a plaintiff’s
request for a “two-bedroom voucher” that would permit her to house a live-in aide.
843 F.3d at 976. The plaintiff sued, and more than two months later while the suit
was still pending, the Authority did an about-face, granted her the requested two-
bedroom voucher, and then asked the trial court to dismiss the case as moot. Id. The
trial court agreed that the case was moot because the Authority had “acquiesced to
plaintiffs’ desired living arrangement.” Id. at 977. The D.C. Circuit reversed,
concluding that the Housing Authority’s “act of administrative grace” was
insufficient to moot the case where it “retain[ed] authority to revoke that voucher at
any time.” Id. at 979; see also Fikre v. Fed. Bureau of Investigation, 904 F.3d 1033,
1040 (9th Cir. 2018) (refusing to dismiss a case after the FBI removed the plaintiff
from its No Fly List, describing the Bureau’s actions as “an exercise of discretion”
and finding that “the government has not assured [the plaintiff] that he will not be
banned from flying for the same reasons that prompted the government to add him
to the list in the first place”). In short, it was not “absolutely clear” to the court that
18
the challenged conduct “could not reasonably be expected to recur.” Hardaway, 843
F.3d at 979 (quoting Laidlaw, 528 U.S. at 189). So too here.
Finally, the District argues that this case is moot because its “decision to void
the ticket . . . provides all the relief available to the Company in this action.” While
that would likely be enough to strip a party of standing before the inception of
litigation, it will not always suffice to moot a case once underway. As the Supreme
Court has emphasized, mootness is not simply “standing set in a time frame.”
Laidlaw, 528 U.S. at 190 (quoting Henry P. Monaghan, Constitutional Adjudication:
The Who and When, 82 Yale L.J. 1363, 1384 (1973)). Rather, once standing has
been established at the outset of litigation, courts may retain jurisdiction even where
the complained-of injury has abated in circumstances when there is some degree of
“likelihood that [the appellant] will again suffer the deprivation of [] rights that gave
rise to this suit.” Honig v. Doe, 484 U.S. 305, 318 (1988) (discussing the capable of
repetition yet evading review exception). 10
10
We have previously taken this inquiry one step further, holding that in cases
involving “a matter of importance,” the question of repetition extends beyond “the
particular appellant . . . to others similarly situated.” Tyler v. United States, 705
A.2d 270, 273 (D.C. 1997) (en banc). While a $100 ticket is hardly a matter of great
importance, the scale on which the District issues and enforces speeding tickets, see
infra, and the infrequency with which challenges to civil traffic violations reach this
court render this a matter of importance that is likely to recur and affect a significant
number of others similarly situated if not addressed in this appeal.
19
When that is the case, our exercise of jurisdiction remains justified when, for
instance, the injury is “so inherently transitory” that it evades review, County of
Riverside v. McLaughlin, 500 U.S. 44, 52 (1991) (citation omitted), or in these
circumstances, where the allegedly offending party has voluntarily abated the
injury. 11 The relevant question is thus not whether the District has granted all the
relief that Bright Ideas has sought in this particular action, but whether it has
demonstrated that there is no cognizable danger of the injury’s recurrence. We have
already answered that dispositive question in the negative.
B.
The District’s litigation tactics drive home the need for our review. While its
failure to demonstrate that it has ceased the challenged practices would, by itself,
11
Because civil traffic citations are so ubiquitous, the principle that courts will
generally not apply a mootness exception where the danger of recurrence stems from
the possibility that a party will “violat[e] the law, get[] caught, and be[] convicted,”
see Spencer v. Kemna, 523 U.S. 1, 15 (1998), has no force here. That principle has
force in the context of somebody who has committed a serious crime, where we
might reasonably expect them not to do so again. But the District issues more
automated traffic citations each year than the number of residents who live within
its borders, so that the cognizable danger of recurrence for any once-caught driver is
evident. Additionally, Bright Ideas’ contention is that it did not, in fact, break the
law as properly understood, which is an additional reason this principle has no
application here.
20
convince us that this case is not moot, we further note that there are strong reasons
for courts not to incentivize strategic litigation conduct that is merely “an attempt to
manipulate jurisdiction.” NABP, 633 F.3d at 1310. For one thing, “strategic,
litigation-related acts” are unlikely to endure beyond the conclusion of the litigation,
significantly increasing the likelihood that the plaintiff “will be subject to the same
action in the future.” Charleston Hous. Auth. v. U.S. Dep’t of Agric., 419 F.3d 729,
740 (8th Cir. 2005). But apart from that, we have a strong prudential interest in
ensuring that litigants are not permitted to “manipulate the formation of precedent.”
In re Nexium Antitrust Litig., 778 F.3d 1, 2 (1st Cir. 2015) (citation omitted); see
also Harrell v. Fla. Bar, 608 F.3d 1241, 1267 (11th Cir. 2010) (noting the
“substantial possibility that the defendant has changed course simply to deprive the
court of jurisdiction, which itself prevents us from finding the controversy moot”)
(cleaned up).
In this case, the District’s strategic motivations are not in dispute. The District
has never offered an alternative explanation for voiding Bright Ideas’ ticket, and it
has expressly referred to this decision as an attempt to “moot out the case.” The
timing of the District’s attempt to moot this case gives us special concern. Recall
that the District voided Bright Ideas’ ticket only after (1) it asked us to rule on the
merits of this dispute via a motion for summary affirmance, (2) we denied its motion
21
for summary affirmance, and (3) we informed the parties that this case would be
scheduled for oral argument. These actions, while not precisely tipping our hand on
the merits of Bright Ideas’ appeal, at least signaled our preliminary disagreement
with the District’s characterization of this case as “simple and straightforward.” The
District’s subsequent about-face—after defending its ticket for eighteen months
through two levels of administrative review and before two courts—is best
understood as a reaction to that signal.
What likely animates the District’s litigation tactics is the fact that challenges
to traffic tickets rarely make it up to this court for review. If it scuttles this challenge,
a similar challenge is unlikely to make it our way any time soon, so that it can expect
to continue its enforcement practices free from this court’s scrutiny. Few parties
have the resources or wherewithal to run the gauntlet of multiple rounds of
administrative review, Superior Court review, and this court’s review simply to
challenge the comparatively small sum of money that accompanies civil traffic
tickets. It is far easier to pay the ticket and be done with it. As best we can tell, we
have only one prior published opinion, from about a decade ago, where a party
challenged a single civil traffic infraction, DeVita v. District of Columbia, 74 A.3d
714, 718 (D.C. 2013), plus a few others where parties challenged a considerable
number of these infractions, but those cases too are rare, see, e.g., Avis Rent-A-Car
22
Sys., Inc. v. District of Columbia, 679 A.2d 492, 493 (D.C. 1996) (challenging “some
900 notices of infraction”); Agomo v. Fenty, 916 A.2d 181, 187-88 (D.C. 2007)
(alleging violation of constitutional rights where one plaintiff faced “at least
eighteen” tickets and the other “over 100”). The rarity of these challenges in this
court gives the District a strong incentive to try to evade review. There is little upside
if it wins ($100) and potentially enormous downside if a precedent-setting loss
upsets its established enforcement practices on a grand scale.
The District’s efforts to moot this case resemble those cases in which a
defendant tries to “pick off” a lead plaintiff in a certified class action in an attempt
to moot a case. Under those circumstances, federal courts have generally held that
the case is not moot, expressing prudential concerns that are likewise present here.
See Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 339 (1980) (“To deny the
right to appeal simply because the defendant has sought to ‘buy off’ the individual
private claims of the named plaintiffs would be contrary to sound judicial
administration.”); see also Wilson v. Gordon, 822 F.3d 934, 951 (6th Cir. 2016);
Lucero v. Bureau of Collection Recovery, Inc., 639 F.3d 1239, 1250 (10th Cir. 2011);
Pitts v. Terrible Herbst, Inc., 653 F.3d 1081, 1091 (9th Cir. 2011); Weiss v. Regal
Collections, 385 F.3d 337, 347 (3d Cir. 2004), abrogated on other grounds by
Campbell-Ewald Co. v. Gomez, 577 U.S. 153 (2016); Zeidman v. J. Ray McDermott
23
& Co., 651 F.2d 1030, 1050 (5th Cir. Unit A 1981). In those cases, like this one, the
stakes for any individual plaintiff or challenger are typically so small that their
opponent might buy them out for a modest sum and—if that were sufficient to moot
a case—thereby avoid the potentially enormous downstream consequences of an
adverse result if the case were to proceed. The incentives for strategic mooting are
immense in both instances, and the reasons for applying the voluntary cessation
exception to mootness are at their most potent.
To be sure, institutional litigants have vast discretion in choosing which cases
to pursue and thereby have considerable influence in shaping which cases come
before our courts. See Malcolm L. Stewart, United States Appeals: Strategic and
Policy Considerations, U.S. Attorney’s Bulletin, Jan. 2013, at 13, 15 (“[T]he
government generally takes particular care to select favorable ‘vehicles’ for
appellate consideration of recurring legal issues. The best vehicles are cases in
which the facts present the government’s position in a favorable light, maximizing
the likelihood that the government’s view will strike judges as intuitively fair.”).
That discretion extends to the initiation of a case (the District did not have to issue
the ticket here), to the decision of whether to appeal an adverse result, and to the
pursuit of discretionary review. Id. But that discretion is not unbounded. Once
those litigants have chosen to initiate court proceedings, or defend themselves
24
therein, the voluntary cessation doctrine prevents them from abandoning ship at the
first whiff of an adverse result. It would be a disservice to the District’s courts and
the parties who appear before us to allow institutional litigants to subvert the orderly
development of precedent though such strategic maneuvering.
Because the District has failed to demonstrate that there is no cognizable
danger of its challenged conduct recurring and once again injuring Bright Ideas or
those similarly situated, we deny its request to dismiss this appeal as moot.
III.
We turn now to the merits. “Although this is an appeal from a review of
agency action by the Superior Court rather than a direct appeal to us, we review the
administrative decision as if the appeal had been heard initially in this court.”
DeVita, 74 A.3d at 719 (quoting Pub. Emp’t Rels. Bd. v. Wash. Tchrs.’ Union Local
6, 556 A.2d 206, 207 (D.C. 1989)). While our review of legal issues is de novo, we
generally “defer to the agency’s interpretation of the statute and regulations it is
charged by the legislature to administer, unless its interpretation is unreasonable or
is inconsistent with the statutory language or purpose.” Id. (quoting D.C. Off. of
Hum. Rts. v. D.C. Dep’t of Corr., 40 A.3d 917, 923 (D.C. 2012)). Bright Ideas
argues that it did not violate the pertinent regulations when the posted speed limit
25
sign was illegible, and that the District violated its constitutional right to fair notice
when the District enforced an unposted default speed limit that most drivers would
be unaware of.
We begin by considering Bright Ideas’ challenge to how the District
interprets the relevant traffic regulations. That is because constitutional adjudication
is a matter of “great gravity and delicacy,” so our practice is to avoid ruling on
constitutional questions unless we have “no other choice.” Blodgett v. Univ. Club,
930 A.2d 210, 217 (D.C. 2007) (quoting Lewis v. Hotel & Rest. Emps. Union,
Local 25, 727 A.2d 297, 301 (D.C. 1999)). 12
Bright Ideas argues that because the speed limit sign “is not reliably posted”
where its driver was ticketed, but instead “mounted extraordinarily high” and
“obscured by tree branches,” the District cannot enforce the posted speed limit and
may not resort to enforcing the default speed limit either. The District does not
dispute the first part of that argument—that it may not enforce the posted speed limit
12
This principle is so strong that even when the parties present solely
constitutional questions, courts sometimes still “avoid deciding the constitutional
issues and decide the case on a non-constitutional ground if reasonably possible.”
See VNA Hospice of Md. v. Dep’t of Health & Mental Hygiene, 961 A.2d 557, 569-
72 (Md. 2008) (collecting cases).
26
when it is not fairly legible. But it disputes the second part of it and defends the
Appeals Board’s conclusion that the default speed limit applies and may be enforced
whenever a posted speed limit sign is illegible.
We agree with Bright Ideas that the District’s interpretation of the relevant
regulations is untenable. The traffic regulations permit the Mayor, for any public
roadway, to “determine and declare a reasonable and safe speed limit which shall be
effective . . . when appropriate signs giving notice of the speed limits are erected.”
18 D.C.M.R. § 2200.2. Once a speed limit for a stretch of roadway has been so
designated in accordance with § 2200.2, then that speed limit cannot be enforced
against a driver if the speed limit sign is obscured or blocked. See 18 D.C.M.R.
§ 2000.5 (“No provision of this subtitle for which signs are required shall be
enforced” unless the sign is “in proper position and sufficiently legible to be seen by
an ordinarily observant person.”). And, contrary to the Appeals Board’s reasoning,
the regulations do not permit the District to simply enforce the default speed limit
when a designated speed limit applies but is not legibly posted. The default speed
limit provided in 18 D.C.M.R. § 2200.6 applies only when a speed limit is not
“otherwise designated in accordance with § 2200.2.” 13
13
The District makes a belated suggestion that this stretch of Military Road
was not “otherwise designated in accordance with § 2200.2,” as that phrase is used
27
The Appeals Board’s contrary interpretation of the regulations not only
contravenes the regulations’ plain language but also gives rise to a host of
absurdities. Imagine a stretch of road where the Mayor had determined under
§ 2200.2 that the reasonable speed was 45 mph and had signs posted to that effect.
Under the Appeals Board’s and the District’s reading of the regulations, if the
relevant signage were obscured, a driver traveling at 51 mph on that stretch of road
would face a ticket not for traveling 6 mph above the designated speed limit, but for
traveling more than 30 mph over the speed limit (with the default now at 20 mph)
and face criminal liability and the prospect of up to 90 days’ imprisonment for
traveling at such speeds. See 18 D.C.M.R. § 2200.12. Similarly, if the District were
correct that the same driver must obey the 20 mph default speed limit where the
posted 45 mph sign is illegible, the compliant driver would likely run afoul of 18
D.C.M.R. § 2200.10, which provides that “[n]o person shall drive a motor vehicle at
such a slow speed as to impede or block the normal and reasonable movement of
traffic.” Such an interpretation would violate the principle that statutes and
in 18 D.C.M.R. § 2200.6, because the posted speed limit matches the default speed
limit. As we have explained, supra note 5, we do not foreclose that possible
interpretation of the regulations, because it is enough to say that no argument like
that was made before the agency and it does not resemble the Appeals Board’s
reasoning, making it a non-viable alternative grounds for affirmance.
28
regulations must be interpreted to avoid “absurd results” and “obvious injustice.”
Corbin v. United States, 120 A.3d 588, 597 (D.C. 2015) (citation omitted).
The District counters with its own posited absurdity, arguing that under the
view we adopt here, an obstructed speed limit sign would result in a free-for-all. By
its telling, a 15 mph side street would be transformed into the Autobahn if, in place
of the posted (but obstructed) speed limit, the default limit could not be enforced.
That is incorrect. Elsewhere in its traffic regulations, the District mandates that “[n]o
person shall drive a vehicle on a street or highway at a speed greater than is
reasonable and prudent under the conditions.” 18 D.C.M.R. § 2200.3. Thus, where
the posted limit is illegible or otherwise obstructed, the District can still cite drivers
for traveling at an unreasonable and imprudent speed—precisely what Bright Ideas
argued the District was required to show in this case. What the District may not do
is enforce either (1) a speed limit posted under 18 D.C.M.R. § 2200.2 where the
signage is illegible, see 18 D.C.M.R. § 2000.5, or (2) the default speed limit where
a speed limit has been “otherwise designated in accordance with § 2200.2,” 18
D.C.M.R. § 2200.6. Because the Appeals Board’s contrary interpretation of the
traffic regulations was unreasonable, we reverse its decision upholding Bright Ideas’
ticket.
29
IV.
For the foregoing reasons, the Appeals Board’s decision is reversed.
So ordered. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482785/ | Third District Court of Appeal
State of Florida
Opinion filed November 10, 2022.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D20-376
Lower Tribunal Nos. F07-342, F07-506, and F07-2179
________________
Tavarus Lightsey,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Richard
Hersch, Judge.
Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant
Public Defender, for appellant.
Ashley Moody, Attorney General, and Linda Katz, Assistant Attorney
General, for appellee.
Before FERNANDEZ, C.J., and LINDSEY, and LOBREE, JJ.
PER CURIAM.
Affirmed. See Alcorn v. State, 121 So. 3d 419, 430 (Fla. 2013) ("In
Florida, trial courts and prosecutors have [the] discretion [to accept or reject
a plea]."); Odegaard v. State, 137 So. 3d 505, 508 (Fla. 2d DCA 2014) ("Even
where trial counsel's misadvice results in a defendant's rejection of a
favorable plea offer, the State is not required to reoffer its original plea on
remand."); Vennisee v. State, 235 So. 3d 947 (Fla. 3d DCA 2017) (citing
Davis v. State, 223 So. 3d 1106 (Fla. 5th DCA 2017, for the proposition that
a juvenile who commits a substantive violation of probation as an adult is not
entitled to be sentenced under Florida's juvenile sentencing scheme);
Woods v. State, 314 So. 3d 683 (Fla. 3d DCA 2021), review denied, SC21-
269, 2021 WL 2434584 (Fla. June 15, 2021); Connolly v. State, 172 So. 3d
893 (Fla. 3d DCA 2015).
2 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482846/ | USCA11 Case: 21-14473 Date Filed: 11/10/2022 Page: 1 of 10
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-14473
Non-Argument Calendar
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CRAIG CLARK,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 1:19-cr-00058-LAG-TQL-27
____________________
USCA11 Case: 21-14473 Date Filed: 11/10/2022 Page: 2 of 10
2 Opinion of the Court 21-14473
Before WILSON, NEWSOM, and GRANT, Circuit Judges.
PER CURIAM:
Defendant-Appellant Craig Clark appeals following his
“blind” guilty plea to his charges, after the district court rejected
the negotiated plea agreement that he and the government wished
to enter. After a thorough review of the record and briefs, we va-
cate and remand.
I.
In November 2019, a grand jury indicted Clark for conspir-
acy to possess with intent to distribute controlled substances, in vi-
olation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A) (D) and 846 (Count 1),
and possession with intent to distribute methamphetamine, in vio-
lation of 21 U.S.C. § 841(a)(1), (b)(1)(A)(viii) (Count 32). The grand
jury indicted 32 codefendants, including Clark.
After some back and forth with the government, Clark en-
tered into a plea agreement and signed the agreement on August
18, 2020. The plea agreement included an appeal waiver, which
stipulated that:
any right to appeal the imposition of sentence[,] . . .
including the right to appeal the amount of restitution
imposed, if any, except in the event that the District
Court imposes a sentence that exceeds that advisory
guideline range as that range has been calculated by
the District Court at the time of sentencing, or in the
USCA11 Case: 21-14473 Date Filed: 11/10/2022 Page: 3 of 10
21-14473 Opinion of the Court 3
event that the District Court imposes a sentence in
excess of the statutory maximum.
The agreement further specified that Clark would be released from
his waiver if the government appealed his sentence, but he other-
wise waived any right to (1) move to modify his sentence, except
in the event of an applicable retroactive amendment to the Sen-
tencing Guidelines, or (2) collaterally attack his conviction and sen-
tence, except for a claim of ineffective assistance of counsel or a
claim under 28 U.S.C. § 2241.
The agreement also stated that Clark would provide truthful
testimony about his and others’ involvement in the charges in the
indictment and “any and all criminal violations” about which he
had information. In exchange, the government agreed to accept
the guilty plea “in full satisfaction of all possible federal criminal
charges” that it knew of at the time. In exchange for accepting re-
sponsibility, the government would recommend a downward ad-
justment. Also, if Clark cooperated truthfully, the government
would let the sentencing court know and possibly move for recom-
mending a departure below the Guidelines range under U.S.S.G.
§ 5K1.1 or, if the cooperation was completed later, it would con-
sider whether the assistance warranted a motion to reduce his sen-
tence within one year of sentencing. The government also agreed
that any self-incriminating information that it did not previously
know, and that Clark provided in connection with his cooperation,
would not be used in determining his Guidelines range. It also
agreed not to bring additional charges based on previously
USCA11 Case: 21-14473 Date Filed: 11/10/2022 Page: 4 of 10
4 Opinion of the Court 21-14473
unknown information provided by Clark, other than any relating
to violent criminal activity.
On September 18, 2020, the courtroom deputy notified the
parties that the district court would reject the plea agreement. The
notice stated that the proposed appeal waiver’s statement that
Clark waived an appeal of a sentence within the Guidelines range
as that range was calculated by the district court had “the potential
of leading to a result that [was] inconsistent with the interests of
justice and conflict[ed] with consistency in sentencing.” Both par-
ties moved separately to schedule a change of plea hearing, arguing
against the district court’s rejection of the plea agreement.
At the change of plea hearing, the district court rejected
Clark’s plea agreement. It explained to Clark that, although it was
not a party to the agreement, the law required it to consider the
plea agreement and decide whether to accept it. The district court
stated that, regarding the waiver of an appeal of a sentence that the
district court imposed outside the Guidelines range as the district
court calculated that range, the Eleventh Circuit had “recently held
that a waiver containing the language . . . bars review of even
clearly erroneous guidelines calculations.” It then found that the
appeal waiver would bar the Eleventh Circuit’s review of its Guide-
lines calculations, even if those calculations were clearly erroneous,
so the agreement would “not ensure that the main objectives of the
sentencing guidelines, namely, consistency and certainty in sen-
tencing, [were] upheld.” Rather, the district court found that the
agreement “would undermine the main objectives of the
USCA11 Case: 21-14473 Date Filed: 11/10/2022 Page: 5 of 10
21-14473 Opinion of the Court 5
sentencing guidelines” and “could lead to a result that is incon-
sistent with the interests of justice and in conflict with consistency
in sentencing.”
In response, Clark stated that he would enter a “blind” plea
to both Counts 1 and 32, but he objected to the rejection of the plea
agreement and agreed with the government that he stood to ben-
efit from it. After completing the plea colloquy, Clark pleaded
guilty, without a plea agreement to Counts 1 and 32, which the
district court accepted.
His presentence investigation report found his Guidelines
range of 235 to 293 months’ imprisonment. At the sentencing hear-
ing, the district court sua sponte granted Clark a 2-level decrease in
his offense level for pleading guilty during the trial moratorium,
resulting in a new Guidelines range of 185 to 235 months’ impris-
onment. Citing the need to avoid unwarranted sentencing dispar-
ities, it imposed a downward variance and sentenced him to 180
months’ imprisonment for Counts 1 and 32, to run concurrently,
followed by 5 years on supervised release. Clark timely appealed.
II.
We review the district court’s rejection of a plea agreement
for abuse of discretion. United States v. Gomez-Gomez, 822 F.2d
1008, 1010 (11th Cir. 1987). Under this standard, we give the dis-
trict court’s decision, after satisfying its obligations under Federal
Rule of Criminal Procedure 11, “utmost deference” because “[i]t is
far better for a court to err on the side of rejecting a valid guilty
USCA11 Case: 21-14473 Date Filed: 11/10/2022 Page: 6 of 10
6 Opinion of the Court 21-14473
plea than to violate a defendant’s constitutional rights by entering
judgment on a defective plea.” Id. at 1011. In the criminal context,
when determining whether the district court abused its discretion,
we have stated that we will affirm the district court’s judgment un-
less it acted arbitrarily or unreasonably. United States v. Brehm,
442 F.3d 1291, 1298 (11th Cir. 2006) (per curiam).
Both Clark and the government argue that the district court
abused its discretion in rejecting the plea agreement. They argue
that the district court’s stated reasons for rejecting his plea agree-
ment (1) reflect a misunderstanding of our decision in United States
v. Boyd, 975 F.3d 1185 (11th Cir. 2020), and (2) are contradicted by
its acceptance of his codefendants’ pleas with identical appeal waiv-
ers. 1 We will address each argument in turn.
First, we agree with Clark and the government that the dis-
trict court rejected Clark’s plea agreement on a misunderstanding
of our decision in Boyd. Our decision in Boyd did not make any
major change in how this court reviews appeal waivers since our
decision in United States v. Howle, 166 F.3d 1166 (11th Cir. 1999).
1 Because we find that the district court abused its discretion by misconstruing
our decision in Boyd and acting arbitrarily in accepting plea agreements with
identical language for other codefendants, we need not address (1) whether it
was inappropriate for the district court to reject the plea agreement because it
was a “charge bargain” under which the government agreed to dismiss at least
one charge or (2) whether the district court improperly interfered with a pros-
ecutorial function and involved itself in the negotiations process.
USCA11 Case: 21-14473 Date Filed: 11/10/2022 Page: 7 of 10
21-14473 Opinion of the Court 7
Instead, our decision in Boyd is an application of the principle an-
nounced in Howle.
In Howle, we declined to review the defendant’s preserved
arguments about the Sentencing Guidelines because he entered an
otherwise enforceable appeal waiver that waived his right to attack
his sentence. Id. at 1167, 1169. We acknowledged that “[w]hile it
may appear unjust to allow criminal defendants to bargain away
meritorious appeals, such is the necessary consequence of a system
in which the right to appeal may be freely traded.” Id. at 1169. But
we have also explained that a sentence appeal waiver “is not an ab-
solute bar to appellate review” and review may be available, de-
spite a valid appeal waiver, when the defendant was “sentenced en-
tirely at the whim of the district court,” above the statutory maxi-
mum, or based on a constitutionally impermissible factor. United
States v. Johnson, 541 F.3d 1064, 1068 (11th Cir. 2008) (internal
quotation marks omitted).
In Boyd, we held that a plea agreement, which barred re-
view unless the sentence “exceed[ed] the advisory guideline
range,” unambiguously barred review of the district court’s Guide-
lines calculations, so we declined to consider the defendant’s argu-
ments about those calculations. 975 F.3d at 1190–91. We also
noted that we had stated that an appeal waiver may waive “the
right to appeal difficult or debatable legal issues or even blatant er-
ror.” Id. at 1191 n.5 (quoting United States v. Grinard-Henry, 399
F.3d 1294, 1296 (11th Cir. 2005)). To that end, we also noted that
sentence appeal waivers benefit both the government and the
USCA11 Case: 21-14473 Date Filed: 11/10/2022 Page: 8 of 10
8 Opinion of the Court 21-14473
defendant because such a waiver “is another chip the defendant can
bring to the bargaining table and trade for additional concessions
from the government.” Id. (quoting United States v. Buchanan,
131 F.3d 1005, 1008 (11th Cir. 1997)).
We continued to reaffirm our holding in Howle before and
after we reiterated and applied it in Boyd. See, e.g., King v. United
States, 41 F.4th 1363, 1367 (11th Cir. 2022); Johnson, 541 F.3d at
1068–69. 2 Thus, the district court abused its discretion when it un-
reasonably erred in finding that Boyd changed our caselaw for re-
viewing appeal waivers.
Second, we agree with Clark and the government that the
district court acted arbitrarily in accepting plea agreements from
other codefendants with identical language that the district court
stated was the reason for rejecting Clark’s plea agreement. 3
2 We also applied the holding in Howle in many unpublished opinions. See,
e.g., United States v. Jamison, 850 F. App’x 696, 698 (11th Cir. 2021) (per cu-
riam); United States v. Masilotti, 565 F. App’x 837, 839–40 (11th Cir. 2014) (per
curiam); United State v. Holland, 214 F. App’x 957, 958–59 (11th Cir. 2007)
(per curiam).
3 There were two codefendants who pleaded guilty in August 2020, which was
at the same time as Clark’s original change of plea hearing. Those codefend-
ants had the same appeal waiver as Clark. But because the district court ac-
cepted those codefendants’ pleas before the issuance of Boyd, those analogies
are not relevant to the inquiry here. Rather, we focus on the district court’s
conduct after Boyd and after Clark’s guilty plea in September 2020.
USCA11 Case: 21-14473 Date Filed: 11/10/2022 Page: 9 of 10
21-14473 Opinion of the Court 9
For example, on August 11, 2021, one of Clark’s codefend-
ants, Kayla Lockett, entered a plea agreement with the govern-
ment, which provided, in relevant part, that she waived “any right
to appeal the imposition of sentence[,] . . . except in the event that
the District Court impose[d] a sentence that exceed[ed] the advi-
sory guideline range as that range ha[d] been calculated by the Dis-
trict Court” or if she was sentenced over the statutory maximum.
At Lockett’s change of plea hearing on the same day, the district
court explained her appeal waiver, specifying that Lockett could
not appeal her sentence even if the district court “ma[d]e a mis-
take” or clearly erred. At the end of the hearing, Lockett pleaded
guilty, and the district court accepted Lockett’s plea.
From June 2021 through June 2022, after our decision in
Boyd, this same scenario occurred multiple times, with many of
Clark’s codefendants entering plea agreements with the same ap-
peal waiver as Clark’s. Unlike Clark, the district court accepted
each codefendants’ plea agreement. Thus, the district court arbi-
trarily accepted the appeal waiver for multiple codefendants in this
case. The district court provided no explanation for why Clark’s
appeal waiver was denied while his codefendants’ waivers were ac-
cepted. This arbitrary treatment of Clark’s waiver amounted to an
abuse of discretion.
Lastly, we find that the district court’s rejection of the plea
agreement prejudiced Clark. Without the plea agreement, Clark
could not obligate the government to consider recommending a
sentence below the statutory minimum or hold the government to
USCA11 Case: 21-14473 Date Filed: 11/10/2022 Page: 10 of 10
10 Opinion of the Court 21-14473
its original agreement not to press additional charges based on con-
duct within the same conspiracy. Because of these losses, the dis-
trict court’s rejection of the plea agreement prejudiced Clark.
III.
The district court abused its discretion and arbitrarily re-
jected Clark’s plea agreement by finding that Boyd marked a signif-
icant change in our review of appeal waivers. Further, the district
court abused its discretion by arbitrarily rejecting Clark’s plea
agreement while accepting his codefendants’ post-Boyd agree-
ments that contained identical appeal waivers. Lastly, the district
court’s rejection of Clark’s plea agreement prejudiced him. Ac-
cordingly, we vacate and remand for further proceedings con-
sistent with this opinion.
VACATED AND REMANDED. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482848/ | Case: 21-1595 Document: 67 Page: 1 Filed: 11/10/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
AMP PLUS, INC., DBA ELCO LIGHTING,
Appellant
v.
DMF, INC.,
Cross-Appellant
______________________
2021-1595, 2021-1636
______________________
Appeals from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. IPR2019-
01094.
______________________
Decided: November 10, 2022
______________________
JOSEPH ROGER RICK TACHE, Buchalter, A Professional
Corporation, Irvine, CA, argued for appellant. Also repre-
sented by KARI BARNES, ROGER L. SCOTT.
DAVID W. LONG, ErgoniQ, LLC, McLean, VA, argued for
cross-appellant. Also represented by BEN M. DAVIDSON,
Davidson Law Group, Calabasas, CA; KEVIN B. LAURENCE,
Laurence & Phillips IP Law, Washington, DC.
______________________
Case: 21-1595 Document: 67 Page: 2 Filed: 11/10/2022
2 AMP PLUS, INC. v. DMF, INC.
Before STOLL, BRYSON, and CUNNINGHAM, Circuit Judges.
BRYSON, Circuit Judge.
Appellant AMP Plus, Inc., d/b/a ELCO Lighting
(“ELCO”) petitioned for inter partes review (“IPR”) of U.S.
Patent No. 9,964,266 (“the ’266 patent”), which is owned by
appellee DMF, Inc. In its Final Written Decision, the Pa-
tent Trial and Appeal Board determined that a number of
the challenged claims of the ’266 patent were not unpatent-
able, but that claim 17 was unpatentable. Both parties ap-
pealed the Board’s decision. We affirm in part, vacate in
part, and remand.
I
The ’266 patent is generally directed to a “compact re-
cessed lighting system” that can be installed in a standard
electrical junction box. ’266 patent, Abstract. The ’266 pa-
tent discloses a “unified casting” that houses a light source
and a “driver” that powers the light source. Id. at col. 2 ll.
7–10, col. 3, ll. 25–46. The casting, driver, and light source
are all sized so that they can fit within a junction box. See
id. at col. 2, line 65 through col. 3, line 11. Claim 1 of the
’266 patent is representative of the claimed invention. It
recites as follows:
1. A compact recessed lighting system, comprising:
a light source module for emitting light;
a driver for powering the light source module to
emit light, the driver including an electronic device
to at least one of supply and regulate electrical en-
ergy to the light source module;
a unified casting with a heat conducting closed rear
face, a heat conducting sidewall and an open front
face wherein the heat conducting sidewall is joined
to the heat conducting closed rear face at one end
and defines the open front face of the unified
Case: 21-1595 Document: 67 Page: 3 Filed: 11/10/2022
AMP PLUS, INC. v. DMF, INC. 3
casting at another end, wherein the heat conduct-
ing sidewall has a first dimension between the heat
conducting closed rear face and the open front face
of less than 2 inches and extends 360 degrees
around a center axis of the unified casting to define
a first cavity that extends forward from the heat
conducting closed rear face to the open front face of
the unified casting and outward to the heat con-
ducting sidewall, wherein the light source module
and the driver are positioned inside the first cavity
while being coupled to the heat conducting closed
rear face of the unified casting such that the light
source module is closer to the closed rear face of the
unified casting than the open front face of the uni-
fied casting, and wherein the unified casting in-
cludes a plurality of elements positioned proximate
to the open front face so as to align with correspond-
ing tabs of a standard junction box and thereby fa-
cilitate holding the unified casting up against the
standard junction box when the unified casting is
installed in the standard junction box; and
a reflector positioned inside the first cavity of the
unified casting and coupled to and surrounding the
light source module such that the reflector directs
light produced by the light source module into an
area surrounding the compact recessed lighting
system while enclosing the driver from exposure to
the area surrounding the compact recessed lighting
system,
wherein the heat conducting closed rear face and
the heat conducting sidewall of the unified casting
significantly dissipate heat generated by the light
source module during operation of the light source
module.
Case: 21-1595 Document: 67 Page: 4 Filed: 11/10/2022
4 AMP PLUS, INC. v. DMF, INC.
Id. at claim 1 (emphasis added to disputed limitations).
Claim 22 also plays a role in this appeal. It recites as
follows:
22. A compact recessed lighting system, compris-
ing:
a light source module for emitting light;
a driver for powering the light source module to
emit light, the driver including an electronic device
to at least one of supply and regulate electrical en-
ergy to the light source module;
a unified casting with a closed rear face, a sidewall
and an open front face wherein the sidewall is
joined to the closed rear face at one end and defines
the open front face of the unified casting at another
end, wherein the sidewall extends 360 degrees
around a center axis of the unified casting to define
a cavity that extends forward from the closed rear
face to the open front face of the unified casting and
outward to the sidewall, wherein the light source
module and the driver are positioned inside the
cavity of the unified casting such that the light
source module is closer to the closed rear face of the
unified casting than the open front face of the uni-
fied casting; and
a reflector positioned inside the cavity of the uni-
fied casting and coupled to and surrounding the
light source module such that the reflector directs
light produced by the light source module into an
area surrounding the compact recessed lighting
system while enclosing the driver from exposure to
the area surrounding the compact recessed lighting
system,
Case: 21-1595 Document: 67 Page: 5 Filed: 11/10/2022
AMP PLUS, INC. v. DMF, INC. 5
wherein:
the light source module is a light emitting diode
(LED) module;
the sidewall of the unified casting has fins formed
on its outside surface; and
the system further comprises a plurality of wires
connected to the driver and connected to a first con-
nector of a pair of complimentary [sic] keyed or in-
terlocking connectors, such that in operation the
first connector is coupled to a second connector of
the pair of complimentary [sic] keyed or interlock-
ing connectors, wherein the second connector is cou-
pled to electricity from an electrical system of a
building in which the compact recessed lighting
system is installed.
Id. at claim 22 (emphasis on disputed limitation).
In its IPR petition, ELCO asserted three prior art ref-
erences. Two of the references, “Imtra 2011” and “Imtra
2007,” were catalogs published by Imtra Corporation de-
tailing various lighting fixtures that Imtra sold for use on
boats or in other marine applications. J.A. 391–403 (Imtra
2011); J.A. 431–38 (Imtra 2007). The third reference, U.S.
Patent No. 9,366,418 (“Gifford”), describes a non-recessed
lighting system that can be attached to a standard junction
box. Gifford, Abstract & Fig. 1. ELCO raised three
grounds of invalidity in the petition: anticipation by Imtra
2011 (“Ground 1”); obviousness in view of the combination
of Imtra 2011 and Imtra 2007 (“Ground 2”); and obvious-
ness in view of the combination of Imtra 2011, Imtra 2007,
and Gifford (“Ground 3”).
In its Final Written Decision, the Board found that
Imtra 2011 disclosed all limitations of the challenged
claims except for the “plurality of elements” limitation. See
Case: 21-1595 Document: 67 Page: 6 Filed: 11/10/2022
6 AMP PLUS, INC. v. DMF, INC.
AMP Plus, Inc. v. DMF, Inc., No. IPR2019-01094, 2020 WL
6811241, at *17 (P.T.A.B. Nov. 19, 2020). That limitation
is recited in most of the challenged claims, but not in claims
17 and 22. As a result, the Board determined that claim 17
was anticipated by Imtra 2011 and therefore was un-
patentable. Id. ELCO challenged claim 22 only in Grounds
2 and 3, so the Board did not determine whether Imtra
2011 anticipated claim 22 of the ’266 patent. See id.
With respect to ELCO’s obviousness arguments, the
Board first found that the Imtra 2007 catalog did not dis-
close the “plurality of elements” limitation that was miss-
ing from Imtra 2011. Id. at *17–19. The Board also found
that a skilled artisan would not have been motivated to
combine the Gifford reference with Imtra 2011 and Imtra
2007 to develop the claimed invention. Id. at *19–23. Ac-
cordingly, the Board held that claim 17 was obvious for the
same reasons that it was anticipated and that the remain-
ing challenged claims were not unpatentable as obvious.
Id. at *19, *25. These appeals followed.
II
In its appeal, ELCO challenges two aspects of the
Board’s decision. First, ELCO argues that the Board erred
in failing to find that Claim 22 was unpatentable as obvi-
ous. Second, ELCO argues that the Board erred in finding
that there was no motivation to combine Gifford with the
Imtra 2011 and Imtra 2007 catalogs.
A
The Board did not explicitly address claim 22 in its dis-
cussion of either of the obviousness grounds raised by
ELCO. With respect to Ground 2, the Board focused exclu-
sively on whether the Imtra 2007 reference disclosed the
“plurality of elements” limitation that was missing from
Imtra 2011. Id. at *17–19. Claim 22, however, does not
recite that limitation. And with respect to Ground 3, the
Board’s analysis focused exclusively on whether a skilled
Case: 21-1595 Document: 67 Page: 7 Filed: 11/10/2022
AMP PLUS, INC. v. DMF, INC. 7
artisan would have been motivated to combine Gifford with
the Imtra references. Id. at *19–23. In short, the Board
never explicitly addressed the patentability of claim 22.
DMF argues that the reason the Board determined
that claim 22 was not unpatentable is that ELCO pre-
sented insufficient evidence that the prior art disclosed the
“electrical system of a building” limitation of claim 22. See
Cross-Appellant’s Br. 30–38. The Board, however, did not
rely on that argument in its obviousness determination,
and that argument therefore cannot serve as a basis for up-
holding the Board’s decision. See In re Applied Materials,
Inc., 692 F.3d 1289, 1294 (Fed. Cir. 2012) (“The Board’s
judgment must be reviewed on the grounds upon which the
Board actually relied. . . . Alternative grounds supporting
the Board’s decision generally are not considered.”); see
also SEC v. Chenery Corp., 332 U.S. 194, 196 (1947).
To be sure, the Board referred to claim 22 in its claim
construction analysis, where the Board explained that
claim 22 is limited to lighting systems that are used in
buildings. AMP Plus, 2020 WL 6811241, at *6 n.8, *8–9,
*11. Although the Imtra references are generally directed
to lighting systems used on boats and not in buildings,
ELCO argues that the prior art nevertheless discloses the
“electrical system of a building” limitation, and that we
should therefore hold claim 22 is invalid. See Appellant’s
Reply Br. 9–12.
In light of the Board’s silence regarding the obvious-
ness issue as applied to claim 22, it appears that the Board
may have simply overlooked that claim when determining
whether the challenged claims were obvious in view of
Grounds 2 and 3. That inference is reinforced by the fact
that the Board’s conclusion regarding Ground 2 omits any
reference to claim 22. See AMP Plus, 2020 WL 6811241, at
*19 (“Therefore, we find that Petitioner fails to show obvi-
ousness of claims 1, 2, 4–11, 13–16, 19, 21, 25, 26, and 28–
Case: 21-1595 Document: 67 Page: 8 Filed: 11/10/2022
8 AMP PLUS, INC. v. DMF, INC.
30 over the combination of Imtra 2011 and Imtra 2007 by
a preponderance of the evidence.”).
Regardless of the reason for the omission, the Board
must rule on the obviousness issue as to claim 22 and must
provide an explanation of its reasoning sufficient “to enable
judicial review and to avoid judicial displacement of agency
authority.” Pers. Web Techs., LLC v. Apple, Inc., 848 F.3d
987, 994 (Fed. Cir. 2017). It has not done so with respect
to claim 22. Accordingly, we vacate the Board’s decision
that claim 22 is not unpatentable and remand for the Board
to address the parties’ arguments regarding the patenta-
bility of claim 22.
B
ELCO also argues that the Board erred in finding that
there was no motivation to combine the Gifford reference
with Imtra 2011 and Imtra 2007. Specifically, ELCO ar-
gues that the Board failed to consider the Gifford reference
“as a whole,” but rather found no motivation to combine
“solely because Gifford relates to non-recessed lighting.”
Appellant’s Br. 39, 41. We review the legal determination
of obviousness de novo and any subsidiary factual findings,
including motivation to combine, for substantial evidence.
Adidas AG v. Nike, Inc., 963 F.3d 1355, 1358–59 (Fed. Cir.
2020).
We reject ELCO’s contention that the Board found no
motivation to combine solely because the Gifford reference
relates to non-recessed lighting. To the contrary, the Board
carefully weighed the record evidence in determining
whether a skilled artisan would have been motivated to
combine the Imtra references with Gifford.
Before the Board, ELCO relied heavily on the testi-
mony of its expert, Dr. Eric Bretschneider. The Board re-
jected several aspects of Dr. Bretschneider’s testimony,
however. First, the Board noted that Dr. Bretschneider
cropped Figure 1 of Gifford in a way that did not “fully
Case: 21-1595 Document: 67 Page: 9 Filed: 11/10/2022
AMP PLUS, INC. v. DMF, INC. 9
characterize the teachings of Gifford.” AMP Plus, 2020 WL
6811241, at *21. Second, Dr. Bretschneider testified that
“Gifford teaches a lighting system that is able to be in-
stalled in a standard junction box.” J.A. 253, ¶ 175. The
Board found that statement to be “incorrect[]” because
“Gifford’s lighting fixture 102 is located on the exterior of
adaptor apparatus 100 and is not recessed.” AMP Plus,
2020 WL 6811241, at *22. Third, the Board rejected Dr.
Bretschneider’s assertion that the “adaptor apparatus” dis-
closed in Gifford was equivalent to the “unified casting”
claimed in the ’266 patent. Id. We discern no error in the
Board’s rejection of those aspects of Dr. Bretschneider’s
testimony.
Additionally, ELCO challenges the Board’s finding that
a skilled artisan would not have been motivated to modify
the Imtra products to fit within a standard junction box.
As the Board noted, the Imtra products contain screw holes
and can be mounted directly to the ceiling. Id. at *19; see
also, e.g., J.A. 4710–11, 6141. The Board thus rejected Dr.
Bretschneider’s analysis as reflecting “faulty reasoning”
that “a POSITA would seek to incur additional expense in
time, labor, and materials to mount an Imtra fixture in a
junction box, rather than simply screw it into the ceiling.”
AMP Plus, 2020 WL 6811241, at *22.
In view of the record evidence, we hold that the Board’s
finding that a skilled artisan would not have been moti-
vated to combine Gifford with the Imtra 2011 and Imtra
2007 references is supported by substantial evidence. 1 We
1 We reject ELCO’s argument that Gifford should
have been treated as analogous art. See Appellant’s Br.
34–39. The Board never found that Gifford was non-anal-
ogous art, nor did it exclude the Gifford reference on that
basis. To the contrary, the Board treated Gifford as prior
art and concluded that a skilled artisan would not have
been motivated to combine Gifford’s teachings with the
Case: 21-1595 Document: 67 Page: 10 Filed: 11/10/2022
10 AMP PLUS, INC. v. DMF, INC.
therefore affirm the Board’s finding that the remaining
challenged claims are not unpatentable.
III
In its cross-appeal, DMF argues that the Board erred
in finding that claim 17 of the ’266 patent was anticipated
by the Imtra 2011 catalog for two reasons: (1) the IPR pe-
tition mixed and matched features of different products
disclosed in the Imtra 2011 catalog; and (2) the Board erred
in construing the term “driver,” which is recited in claim
17. DMF also argues that the Board erred in determining
that claim 17 was obvious.
A
With respect to anticipation, DMF argues that the
Board erred in determining that the Imtra 2011 reference
anticipated claim 17 of the ’266 patent because ELCO’s pe-
tition impermissibly mixed and matched features from dif-
ferent products in the Imtra 2011 catalog. Anticipation is
a question of fact that we review for substantial evidence.
Blue Calypso, LLC v. Groupon, Inc., 815 F.3d 1331, 1341
(Fed. Cir. 2016).
The Imtra 2011 catalog discloses several different
lighting products, including the “Sardinia,” “Cyprus,”
“Ventura,” “Portland,” and “Hatteras” product lines. J.A.
396–403. The catalog also discloses information about
“Imtra PowerLED” products, which include the Ventura,
Portland, and Hatteras products. J.A. 395; see also Appel-
lant’s Reply Br. 36. DMF argues that ELCO combined
teachings of the Imtra references. See AMP Plus, 2020 WL
6811241, at *19–23; see also In re Bigio, 381 F.3d 1320,
1325 (Fed. Cir. 2004) (A reference is prior art for purposes
of an obviousness determination “only when analogous to
the claimed invention.”).
Case: 21-1595 Document: 67 Page: 11 Filed: 11/10/2022
AMP PLUS, INC. v. DMF, INC. 11
various features of those products in a manner that does
not establish anticipation.
We have held that a prior art reference does not antic-
ipate if it contains “multiple, distinct teachings that the ar-
tisan might somehow combine to achieve the claimed
invention.” Net MoneyIN, Inc. v. VeriSign, Inc., 545 F.3d
1359, 1371 (Fed. Cir. 2008). Rather, the reference “must
clearly and unequivocally disclose the claimed invention or
direct those skilled in the art to the invention without any
need for picking, choosing, and combining various disclo-
sures not directly related to each other by the teachings of
the cited reference.” Id. (cleaned up).
It is true that ELCO’s petition cites to various pages of
the Imtra 2011 catalog that describe several different prod-
ucts from the Sardinia, Cyprus, Ventura, Portland, and
Hatteras lines. See J.A. 96–107. Upon closer examination,
however, it is evident that the portions of the catalog on
which ELCO relied are not unrelated in a way that under-
mines the Board’s anticipation analysis.
The petition divides independent claims 1, 17, and 26
(which it treats as a group) into 11 limitations: the pream-
ble and limitations A through J. 2 For the preamble and
limitations A, B, D, F, G, I, and J, ELCO relied on disclo-
sures from page 5 of Imtra 2011, which relates to the Pow-
erLED products generally. J.A. 96–107, 395. For
2 DMF argues that such grouping, as well as
ELCO’s alleged mixing and matching, violates “35 U.S.C.
§ 312(a)(3)’s requirement to state with particularity the
grounds on which a challenge is based.” Cross-Appellant’s
Br. 70–71; see also Cross-Appellant’s Reply Br. 23–25. We
conclude that the Board did not abuse its discretion in find-
ing that ELCO “identifie[d] the grounds for anticipation
with sufficient particularity.” AMP Plus, 2020 WL
6811241, at *13.
Case: 21-1595 Document: 67 Page: 12 Filed: 11/10/2022
12 AMP PLUS, INC. v. DMF, INC.
limitation C, ELCO also relied on statements regarding the
PowerLED products generally, even though those state-
ments were contained on pages relating to specific prod-
ucts. See J.A. 100; J.A. 398 (“The LEDs inside Imtra
downlights are mounted directly to a [printed circuit
board] . . . .”); J.A. 402 (“The integrated circuit we use in
our PowerLED downlights can provide” a constant current
to the LED “regardless of input voltage.”). Neither Limita-
tion E nor Limitation H (the “plurality of elements” limita-
tion) were at issue with respect to claim 17, and the Board
found that the Imtra 2011 reference did not disclose Limi-
tation H in any event. AMP Plus, 2020 WL 6811241, at
*17.
ELCO’s petition ties each limitation of claim 17 to the
Imtra PowerLED products generally. Therefore, ELCO did
not impermissibly mix and match disclosures from Imtra
2011 to arrive at an anticipatory reference. And the Board
did not err in finding that there was no reason that “the
general disclosures regarding Imtra LEDs” should be “lim-
ited to the specific products on the same page.” Id. at *13.
Accordingly, the Board’s finding that Imtra 2011 was an
anticipatory prior art reference is supported by substantial
evidence. 3
B
DMF also argues that the Board erred in its construc-
tion of the term “driver,” as that term is used in claim 17 of
the ’266 patent. The Board adopted ELCO’s construction
of that term, construing “driver” to mean “an electronic
3 DMF initially argued that ELCO should be subject
to judicial estoppel with respect to this issue due to state-
ments ELCO made in a parallel district court proceeding.
Cross-Appellant’s Br. 72–75. DMF expressly abandoned
that argument in its reply brief, however, and we therefore
decline to address it. See Cross-Appellant’s Reply Br. 27.
Case: 21-1595 Document: 67 Page: 13 Filed: 11/10/2022
AMP PLUS, INC. v. DMF, INC. 13
device to supply, regulate, or supply and regulate electrical
energy to a light source module.” AMP Plus, 2020 WL
6811241, at *12. DMF argues for a narrower construction
requiring the driver to be connected to a building’s main
power source. Cross-Appellant’s Br. 77.
The specification of the ’266 patent contains an explicit
definition of “driver” that closely tracks the Board’s con-
struction. The specification states that “[t]he driver 4 is an
electronic device that supplies and/or regulates electrical
energy to the light source module 3 and thus powers the
light source module 3 to emit light.” ’266 patent, col. 4, ll.
21–24. The specification adds that “[t]he driver 4 may be
any type of power supply, including power supplies that de-
liver an alternating current (AC) or a direct current (DC)
voltage to the light source module 3,” and that the driver
“receives an input current from the electrical system of the
building or structure in which the recessed lighting system
1 is installed.” Id. at col. 4, ll. 24–27, 39–41 (emphasis
added). In view of those disclosures, the intrinsic evidence
does not suggest that a “driver” is limited to a device that
is connected to a building’s main power source. To the con-
trary, the specification indicates that the driver may be in-
stalled in any structure (a term that is not defined in the
’266 patent) and is therefore not limited to traditional
buildings that would contain a building main power source.
DMF argues that three aspects of the Board’s claim
construction analysis were erroneous. First, DMF chal-
lenges the Board’s reliance on extrinsic evidence, such as
technical dictionaries. That argument is unpersuasive,
however, particularly in light of the fact that the Board’s
reliance on technical dictionaries was limited to providing
a summary of ELCO’s arguments. AMP Plus, 2020 WL
6811241, at *10 & n.9. The Board’s construction was pri-
marily based on the intrinsic evidence and the parties’ ex-
perts’ testimony about that evidence. See id. at *10–12.
Case: 21-1595 Document: 67 Page: 14 Filed: 11/10/2022
14 AMP PLUS, INC. v. DMF, INC.
Second, DMF asserts that because there are other dif-
ferences in scope between claims 17 and 22, the Board im-
properly invoked the presumption of claim differentiation
when the Board considered that claim 22 explicitly recites
a connection to building main power. That argument is un-
persuasive. The Board did not purport to rely on the pre-
sumption of claim differentiation when it invoked claim 22
in construing the term “driver.” See id. at *11. Moreover,
even when claim differentiation does not apply, differences
between claims may “provide[] guidance as to the scope” of
a patent’s claims. See Netflix, Inc. v. DivX, LLC, No. 2021-
1931, 2022 WL 2298983, at *4 (Fed. Cir. June 27, 2022).
Indeed, “[i]t is highly disfavored to construe terms in a way
that renders them void, meaningless, or superfluous.” Intel
Corp. v. Qualcomm Inc., 21 F.4th 801, 810 (Fed. Cir. 2021).
As ELCO points out, if a driver—which is required by claim
22—were limited to embodiments connected to a building
main power source, the “building” limitation of claim 22
would be superfluous. We therefore disagree with DMF
that it was inappropriate for the Board to consider claim
22 in construing the term “driver.”
Third, DMF argues that the Board improperly dis-
counted the prosecution history of the ’266 patent. DMF
points to an interview between the inventor of the ’266 pa-
tent and the patent examiner during which the inventor
indicated that in his solution, “building wiring carrying the
AC ‘mains’ voltage may be coupled to the driver inside the
unified casting.” J.A. 4637. That statement in the prose-
cution history, however, is best read as a non-limiting de-
scription of the location of a driver in certain contexts. It
does not rise to the level of an “unequivocal[] and unambig-
uous[]” disavowal as to the scope of the term “driver,” of the
sort we have required to find a prosecution disclaimer. See
Biogen Idec, Inc. v. GlaxoSmithKline LLC, 713 F.3d 1090,
1095 (Fed. Cir. 2013).
We find DMF’s arguments for a narrower construction
of “driver” to be unpersuasive, and we therefore affirm the
Case: 21-1595 Document: 67 Page: 15 Filed: 11/10/2022
AMP PLUS, INC. v. DMF, INC. 15
Board’s decision finding claim 17 to be unpatentable. Be-
cause we affirm the Board’s determination that claim 17 is
anticipated, we need not reach DMF’s arguments regard-
ing obviousness. See Connell v. Sears, Roebuck & Co., 722
F.2d 1542, 1548 (Fed. Cir. 1983) (“Though it is never nec-
essary to so hold, a disclosure that anticipates under § 102
also renders the claim invalid under § 103, for anticipation
is the epitome of obviousness.” (cleaned up)).
IV
For the reasons stated, we vacate the Board’s decision
that claim 22 is not unpatentable for obviousness and re-
mand for further proceedings regarding that claim. We af-
firm the Board’s decision with respect to all other
challenged claims.
In light of the disposition of this case, DMF’s motions
to include documents in the appendix (ECF No. 16) and to
strike portions of ELCO’s reply brief (ECF No. 39) are both
denied as moot.
No costs.
AFFIRMED-IN-PART, VACATED-IN-PART, AND
REMANDED | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482850/ | Filed 11/9/22 P. v. Haywood CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A165856
v.
RUFUS MAXIMILLION (Tulare County
HAYWOOD, Super. Ct. No. PCF350701)
Defendant and Appellant.
In this domestic abuse case, defendant Rufus Maximillion Haywood
argues that his conviction must be reversed and the case dismissed with
prejudice because the trial court’s denial of his Penal Code1 section 1381
motion to dismiss violated his constitutional right to a speedy trial. He also
argues that an electronic device search condition of his probation is
unconstitutionally overbroad. Lastly, Haywood contends that the trial court
violated his state and federal constitutional rights to due process when it
imposed on him a court operations assessment fee and a criminal conviction
assessment fee without first determining his ability to pay those
assessments.
All further statutory references are to the Penal Code, unless
1
otherwise indicated.
We conclude that Haywood’s claim of a speedy trial violation did not
survive his guilty plea, and that his challenge to the assessments was
forfeited by his failure to object in the trial court. We agree, however, that
the electronic device search condition is unconstitutionally overbroad because
it is not narrowly tailored to the government’s legitimate interest in
Haywood’s reformation and rehabilitation. Accordingly, we will strike the
electronic device search condition and remand the case to the trial court to
consider whether the condition can be narrowed in a manner that will allow
it to pass constitutional muster. In all other aspects, we affirm the judgment.
BACKGROUND
In March 2017, Haywood physically assaulted his wife on two separate
occasions. On the latter occasion, Haywood’s wife tried to run outside and
call 9-1-1, but Haywood took her cell phone and prevented her from leaving
the house before physically assaulting her.
In July 2018, the Tulare County District Attorney charged Haywood by
information with two counts of injuring a spouse, cohabitant, boyfriend,
girlfriend or child’s parent after prior conviction (§ 273.5, subd. (f)(1)); one
count of assault by means of force likely to produce great bodily injury (§ 245,
subd. (a)(4)); one count of false imprisonment by violence (§ 236); and one
count of interference with a wireless communication device (§ 591.5).
In December 2019, while serving a 16-month sentence in Ventura
County jail for an unrelated crime, Haywood mailed a section 1381 demand
to the Tulare County District Attorney, demanding that prosecution bring the
matter to trial or sentencing within the statutory 90-day period.
Almost a year later, in November 2020, Haywood filed a motion to
dismiss for the Tulare County District Attorney’s failure to bring him to trial
following his section 1381 demand. The trial court denied the motion, finding
2
good cause for the delay in bringing Haywood to trial due to his health issues
and the COVID-19 pandemic.
In January 2021, Haywood pled no contest to all counts in the Tulare
County matter in exchange for four years of probation and a suspended state
prison sentence of six years and four months. The trial court imposed
judgment the following month. Included in the terms and conditions of
Haywood’s probation was a condition that he submit to warrantless searches
of any electronic device under his control at any time. The court also imposed
a $200 court operations assessment fee and a $150 criminal conviction
assessment fee.
Haywood timely appealed from the judgment.
DISCUSSION
I. Right to Speedy Trial Violation Under Section 1381
Section 1381 provides, in pertinent part: “Whenever a defendant has
been convicted, in any court of this state, of the commission of a felony or
misdemeanor and . . . has entered upon a term of imprisonment in a county
jail for a period of more than 90 days or has been committed to and placed in
a county jail for more than 90 days as a condition of probation . . . ,” he must
be brought to trial or for sentencing in a pending criminal proceeding within
90 days after he demands such action. (§ 1381.) This section is
“ ‘supplementary to and a construction of’ the state constitutional speedy trial
guarantee.” (People v. Martinez (2000) 22 Cal.4th 750, 766.)
Haywood contends the trial court violated his constitutional and
statutory right to a speedy trial when it denied his motion to dismiss
following the District Attorney’s failure to comply with his section 1381
demand. We agree with the People that Haywood’s claim of speedy trial
violation did not survive the entry of his no contest plea.
3
The issues cognizable on appeal from a guilty or no contest plea are
limited. (§ 1237.5; People v. Hoffard (1995) 10 Cal.4th 1170, 1177.) “ ‘[A] plea
of guilty admits all matters essential to the conviction.’ ” (People v. Hayton
(1979) 95 Cal.App.3d 413, 416.) “For that reason, . . . issues going to the
determination of guilt or innocence are not cognizable on appeal; review is
instead limited to issues going to the jurisdiction of the court or the legality of
the proceedings, including the constitutional validity of the plea.” (People v.
Hoffard, supra, at p. 1178; see People v. Turner (1985) 171 Cal.App.3d 116,
125 [“A defendant thereafter can raise only those questions which go to the
power of the state to try him despite his guilt”].)2
A defendant’s speedy trial claim is an “issue going to guilt or
innocence,” and thus is not cognizable on appeal from a no contest plea.
(People v. Hernandez (1992) 6 Cal.App.4th 1355, 1359–1360.) “The essence of
a defendant’s speedy trial or due process claim in the usual case is that the
passage of time has frustrated his ability to establish his innocence. The
resolution of a speedy trial or due process issue necessitates a careful
assessment of the particular facts of a case in order that the question of
prejudice may be determined.” (People v. Hayton, supra, 95 Cal.App.3d at
p. 419, fn. omitted.) But a guilty plea moots a defendant’s claim that the
passage of time frustrated his power to establish innocence because it admits
all matters essential to the conviction, and the defendant cannot establish
prejudice. (Ibid.; People v. Hernandez, supra, 6 Cal.App.4th at p. 1359.)
2 Although Haywood pled no contest to the charges against him, “the
legal effect of a no contest plea to a crime punishable as a felony is ‘the same
as that of a plea of guilty for all purposes.’ ” (People v. Miller (2022)
78 Cal.App.5th 1051, 1058, italics in original.) Thus, a defendant’s no contest
plea admits to every element of the charged crime. (Ibid.; Wilkinson v. Zelen
(2008) 167 Cal.App.4th 37, 46 [same for no contest pleas to misdemeanors].)
4
This is true even for statutory speedy trial claims. Although it is not
necessary to demonstrate prejudice if a statutory speedy trial claim is
pursued before a conviction is obtained, a defendant must establish prejudice
if he waits to pursue appellate relief until after he has been convicted.
(People v. Martinez, supra, 22 Cal.4th at p. 769.) “Prejudice becomes an issue
for a statutory speedy trial claim only when the defendant waits until after
the judgment to obtain appellate review. ‘[O]nce a defendant has been tried
and convicted, the state Constitution in article VI, section 13, forbids reversal
for nonprejudicial error,’ and so on appeal from a judgment of conviction a
defendant asserting a statutory speedy trial claim must show that the delay
caused prejudice, even though the defendant would not be required to show
prejudice on pretrial appellate review.” (Ibid.) Because the appeal of a
claimed statutory speedy trial violation requires a showing of prejudice and a
plea of guilty or no contest forecloses the possibility of making such a
showing, Haywood’s statutory claim for a speedy trial violation does not
survive his no contest plea. (See People v. Egbert (1997) 59 Cal.App.4th 503,
515 [defendant’s section 1382 speedy trial violation claim did not survive
guilty plea].)
Haywood argues for the first time in his reply that due to
“extraordinary circumstances,” his no contest plea does not preclude him
from raising on appeal his claim of speedy trial violation. Specifically, he
claims that he was prejudiced by the delay in bringing the matter to trial
because it forced him to choose between needed medical attention and his
right to trial. Even assuming that he has not forfeited this argument by
failing to raise it in his opening brief (Paulus v. Bob Lynch Ford, Inc. (2006)
139 Cal.App.4th 659, 685), it lacks merit. On the record before us, Haywood’s
motivation to accept the plea deal does not go “to the power of the state to try
5
him despite his guilt” (People v. Turner, supra, 171 Cal.App.3d at p. 125), and
therefore does not present a cognizable issue on appeal from his no contest
plea.
Accordingly, we are foreclosed from considering Haywood’s statutory
speedy trial claim by virtue of his plea bargain.3
II. Electronic Device Search Condition
The electronic device search condition of Haywood’s probation requires
him to “submit to a search of . . . any object under his/her control including
any electronic device at any time day or night with or without a search
warrant, with or without his/her consent by any Peace and/or Probation
Officer.” Haywood contends the electronic device search condition is
unconstitutionally overbroad in violation of his Fourth Amendment rights.
The People argue that Haywood forfeited his overbreadth claim by
failing to raise it in the trial court because it is an “as-applied” challenge. An
as-applied challenge is forfeited unless previously raised. (In re Sheena K.
(2007) 40 Cal.4th 875, 889.) In contrast, the forfeiture rule does not extend to
facial constitutional challenges presenting pure questions of law that can be
resolved without referring to the sentencing record. (Id. at pp. 888–889.)
Haywood acknowledges that he did not object to the electronic device search
condition, but contends that his overbreadth challenge is not forfeited on
appeal because it is a facial challenge, and alternatively that we should reach
the merits of his claim because his counsel’s failure to object constituted
ineffective assistance.
We need not and do not address the People’s contentions that
3
Haywood’s section 1381 demand was premature and that the trial court did
not abuse its discretion in denying his motion to dismiss, or Haywood’s
argument that the 90-day statutory period expired before the COVID-19
pandemic began impacting the courts.
6
We conclude that Haywood has asserted both a facial challenge and an
as-applied challenge to the electronic device search condition, and that his
facial challenge lacks merit. However, we also conclude for the reasons set
forth below that he has established ineffective assistance of counsel based on
defense counsel’s failure to object to the electronic device search condition,
and that his as-applied challenge is meritorious.
A. Haywood’s Facial Challenge Lacks Merit.
While Haywood argues that the condition is unconstitutionally
overbroad simply because it “allows for searches of vast amounts of personal
information,” this Division has rejected a similar facial challenge to a
warrantless electronic device search condition of probation, concluding that it
was not “per se” unconstitutional even though it may uncover “comparatively
more private information than the search of a person, or a personal
item . . . .” (People v. Guzman (2018) 23 Cal.App.5th 53, 65; see People v.
Ebertowski (2014) 228 Cal.App.4th 1170, 1173–1176 [upholding an electronic
device search condition requiring the probationer to submit to warrantless
searches of “any” electronic devices within his control or custody and to
provide “all” passwords to social media sites].) Haywood also argues that the
search condition is overbroad on its face because, by referring to electronic
devices “under his control,” it potentially allows the search of devices that
belong to other people. Haywood cites no authority in support of his
argument that the phrase “under his control” is unconstitutionally overbroad,
and we cannot agree that any search condition is facially invalid unless it is
limited to devices actually owned by the defendant. (See, e.g., In re Malik J.
(2015) 240 Cal.App.4th 896, 902 [requiring modification “to restrict searches
to those electronic devices found in [defendant’s] custody and control”].)
Limiting searches to devices that the defendant owns, even when other
7
devices are under the defendant’s control, would create an expansive
loophole, undermining the purpose of any search condition.
Relying on language in In re Sheena K., supra, 40 Cal.4th 875 that a
facial challenge is one that presents “a pure question of law, easily
remediable on appeal by modification of the condition” (id. at p. 888),
Haywood also argues that he did not use any electronic device in committing
the crimes of which he was convicted, and therefore that the electronic search
condition should simply be stricken rather than remanded to the trial court
for narrow tailoring. While the focus on the facts of his crimes is more
characteristic of an as-applied challenge (see, e.g., People v. Guzman, supra,
23 Cal.App.5th at p. 63, fn. 3), in any event we disagree with the premise;
Haywood took his wife’s cell phone to prevent her from reporting the crime
and he was convicted, among other things, of interference with a wireless
communication device. As a result, it is not possible to conclude that no
probation condition related to electronic devices could be warranted based on
Haywood’s conviction. Haywood’s facial challenges therefore fail.
B. Haywood Has Demonstrated Ineffective Assistance of
Counsel.
Anticipating that we would find forfeited his as-applied challenge to the
electronic device search condition, Haywood argues that his counsel’s failure
to object to the condition violated his Sixth Amendment right to effective
assistance of counsel. We agree.
To establish a claim for ineffective assistance of counsel, Haywood must
demonstrate that “(1) the record affirmatively discloses counsel had no
rational tactical purpose for the challenged act or omission, (2) counsel was
asked for a reason and failed to provide one, or (3) there simply could be no
satisfactory explanation.” (People v. Mai (2013) 57 Cal.4th 986, 1009.)
8
In this case, the record does not reveal the reason for defense counsel’s
failure to object to the electronic device search condition, and she was not
asked for an explanation. Nonetheless, there is no satisfactory explanation
for her failure to object under the circumstances here. We cannot say on the
record before us that objecting risked compromising the plea agreement or
would have been futile. The trial court readily agreed to probation, and as
discussed below, such a broad electronic device search condition does not
serve the purposes of probation in this case. An objection to the condition
would have been clearly meritorious. The record also forecloses the
possibility that counsel did not challenge the electronic device search
condition to have a better chance of convincing the court to modify other
probation conditions. The only probation condition she objected to—that
Haywood perform community service—was a mandatory condition of
probation under section 1203.97, subdivision (a)(8), that the trial court lacked
discretion to modify. In sum, the failure to object served no tactical purpose,
and Haywood has therefore established ineffective assistance of counsel. We
turn to the merits of his overbreadth challenges.
C. The Electronic Device Search Condition Is
Unconstitutionally Overbroad.
In his as-applied challenge, Haywood argues that the electronic search
condition is not narrowly tailored. “A [probation condition] is
unconstitutionally overbroad . . . if it (1) ‘impinge[s] on constitutional rights,’
and (2) is not ‘tailored carefully and reasonably related to the compelling
state interest in reformation and rehabilitation.’ [Citations.]” (In re E.O.
(2010) 188 Cal.App.4th 1149, 1153.) “The essential question in an
overbreadth challenge is the closeness of the fit between the legitimate
9
purpose of the restriction and the burden it imposes on the defendant's
constitutional rights . . . .” (Ibid.)
Reviewing Haywood’s as-applied constitutional challenge de novo (In re
Shaun R. (2010) 188 Cal.App.4th 1129, 1143), the electronic device search
condition undoubtedly impinges on his constitutional rights. (See People v.
Appleton (2016) 245 Cal.App.4th 717, 724 (Appleton).) The United States
Supreme Court has extended Fourth Amendment protections to searches of
cell phones, finding that cell phones “implicate privacy concerns far beyond
those implicated by the search” of other physical items, like a wallet or purse.
(Riley v. California (2014) 573 U.S. 373, 393–396, 403.) “Much of the
reasoning in Riley—which recognized how the immense storage capacity of
modern cell phones allows users to carry large volumes of data—would apply
to other modern electronic devices covered by the probation condition at issue
here.” (Appleton, at p. 724.)
The People argue that the electronic device search condition does not
infringe on Haywood’s constitutional rights because he waived his Fourth
Amendment rights by accepting the search condition as part of his probation.
However, “[i]rrespective of whether a defendant accepts or declines the terms
of probation, he or she may, on appeal following an objection in the trial
court, challenge a condition as unreasonable or unconstitutional.” (People v.
Moran (2016) 1 Cal.5th 398, 403, fn. 5.) While there was no objection here,
we have concluded above that the failure to object constituted ineffective
assistance, and therefore reach the merits of the claim on that basis.
The question then is whether the electronic device search condition is
constitutionally permissible because it is tailored carefully and reasonably
related to the state’s legitimate interest in Haywood’s rehabilitation. We
think not.
10
In re Ricardo P. (2019) 7 Cal.5th 1113 (Ricardo P.) is instructive here.
Although Ricardo P. concerned a challenge to a probation condition under
People v. Lent (1975) 15 Cal.3d 481, the proportionality test it enunciated
incorporates the same considerations included in a constitutional overbreadth
analysis. (Ricardo P., supra, 7 Cal.5th at pp. 1127–1128 [finding that both
the Lent test and a constitutional overbreadth analysis “require a court to
assess the relative burdens and benefits of probation conditions”].)4 In
striking an electronic search condition, the court held that there must be a
connection between the probation condition and the probationer’s criminal
conduct or personal history and a “degree of proportionality” between the
burden imposed by the condition and the legitimate interests it serves. (Id.
at p. 1122.) Because the electronic search condition imposed “substantial
burdens” on the defendant’s privacy, as it provided probation officers
unfettered access to “not only his social media accounts but also to the
contents of his e-mails, text messages, and search histories, all photographs
and videos stored on his devices, as well as any other data accessible using
electronic devices,” the court held that it required “a correspondingly
substantial and particularized justification.” (Id. at pp. 1123, 1126.) The
court concluded that the electronic search condition did not satisfy the
proportionality test because there was no indication in the record that the
minor ever used electronic devices to commit his crimes or to engage in other
criminal activity. (Id. at p. 1119.)
Ricardo P. cited Appleton, supra, 245 Cal.App.4th 717, a constitutional
overbreadth case, with approval. There, the court held that a probation
4 The People point out that Haywood has not raised a proportionality claim
under Ricardo P. However, because of the overlap in standards, we think it
is appropriate to consider the California Supreme Court’s analysis in that
case.
11
condition authorizing warrantless searches of the defendant’s electronic
devices was constitutionally overbroad because the state’s legitimate interest
in monitoring whether the defendant used social media to contact minors for
unlawful purposes “could be served through narrower means.” (Appleton,
supra, 245 Cal.App.4th at p. 727.) The defendant had met his minor victim
through social media, but the court reasoned that the probation condition
would “allow for searches of vast amounts of personal information unrelated
to defendant’s criminal conduct or his potential for future criminality.”
(Ibid.) As a result, the court struck the condition and remanded to the trial
court for it to consider fashioning a more narrowly tailored probation
condition. (Ibid.)
People v. Prowell (2020) 48 Cal.App.5th 1094 is similar. The court
concluded that a probation condition limited to warrantless searches of
“communication” devices was overbroad because “[t]he state’s interests in
preventing communication with and harassment of the victim, and fostering
defendant’s rehabilitation, could be served through narrower means” by
modifying the condition to limit authorization of searches to devices,
accounts, and applications that were “reasonably likely to reveal” whether
the defendant had engaged in communication with the victim or had
otherwise violated the terms of his probation. (Id. at p. 1102.)
Likewise, here, the electronic device search condition is not narrowly
tailored to the state’s interests in rehabilitating Haywood. As currently
worded, the electronic device search condition imposes a substantial burden
on Haywood’s privacy because it places no limit on the type of data subject to
search and “could potentially expose a large volume of documents or data,
much of which may have nothing to do with illegal activity. These could
include, for example, medical records, financial records” (Appleton, supra,
12
245 Cal.App.4th at p. 725), and the user’s internet search and browsing
history (Riley v. California, supra, 573 U.S. at pp. 395–396). The record
demonstrates little likelihood that evidence of illegal activity will be found in
those categories of information. The evidence here showed that Haywood
took his wife’s cell phone when she was attempting to report his domestic
violence, but not that he affirmatively used an electronic device in the
commission of his crimes. Thus, the state’s interest in monitoring Haywood’s
rehabilitation could be served through “narrower means.” (Appleton, at
p. 727.)
Since the electronic device search condition is not narrowly tailored to
its purpose of furthering Haywood’s rehabilitation, it must be modified to
limit authorization of searches to information reasonably likely to reveal
whether a communication device in Haywood’s control belongs to his wife.
III. Dueñas and Inability to Pay Determination
The final issue Haywood raises on appeal is that the trial court violated
his state and federal constitutional rights to due process by imposing a $200
court operations assessment fee and a $150 criminal conviction assessment
fee without holding an ability to pay hearing or making an “on-the-record”
determination of his ability to pay the fees, and he asks us to strike the fees.
Haywood’s argument relies on People v. Dueñas (2019) 30 Cal.App.5th
1157. “In a nutshell, Dueñas, supra, 30 Cal.App.5th at pages 1168–1169,
held that a sentencing court violated the due process rights of a defendant
who committed her acts out of poverty when it imposed certain mandatory
fees and fines that lack a statutory exception without first making a finding
the unemployed defendant (who suffered from cerebral palsy) had the ability
to pay while she was on probation.” (People v. Oliver (2020) 54 Cal.App.5th
1084, 1100.)
13
We conclude that Haywood has forfeited his Dueñas claim, and that his
claim for ineffective assistance of counsel on this issue lacks merit.
A. Haywood Has Forfeited His Dueñas Claim.
The People contend that Haywood has forfeited his challenge to the
assessments by failing to raise it in the trial court. Haywood admits he did
not object to the trial court’s imposition of the assessments, but he
nonetheless contends he did not forfeit his Dueñas claim because it raises a
pure question of law and implicates his “fundamental” constitutional rights.
“ ‘Ordinarily, a criminal defendant who does not challenge an
assertedly erroneous ruling of the trial court in that court has forfeited his or
her right to raise the claim on appeal.’ ” (People v. McCullough (2013)
56 Cal.4th 589, 593 (McCullough).) “ ‘ “The purpose of this rule is to
encourage parties to bring errors to the attention of the trial court, so that
they may be corrected.” ’ ” (Ibid.) Moreover, “ ‘[i]t is both unfair and
inefficient to permit a claim for error on appeal that, if timely brought to the
attention of the trial court, could have been easily corrected or avoided.’ ”
(Ibid.)
Applying the forfeiture doctrine, the California Supreme Court has held
that the failure to object to the imposition of fines and fees in the trial court
based on a purported inability to pay forfeits the issue on appeal. (People v.
Trujillo (2015) 60 Cal.4th 850, 854, 856 [defendant forfeited challenge to
imposition of booking fee for failing to object in the trial court]; McCullough,
supra, 56 Cal.4th at p. 597 [same].)
After Dueñas was decided, several courts, including this Division in
People v. Cowan (2020) 47 Cal.App.5th 32, review granted June 17, 2020,
S261952 (Cowan), reiterated the requirement that a defendant challenge the
imposition of fees in the trial court on grounds of inability to pay to preserve
14
the issue on appeal. (Cowan, at p. 49 [collecting cases]; People v. Kopp (2019)
38 Cal.App.5th 47, 96.) Absent a “proper objection” from the defendant, the
trial court is not required to make an ability to pay record. (Cowan, at p. 34
[“On the ability-to-pay issue, we hold that, upon proper objection, a
sentencing court must allow a defendant facing imposition of a minimum
restitution fine or court operations and court facilities assessments an
opportunity to present evidence and argument why these financial exactions
exceed his ability to pay,” italics added]; People v. Kopp, supra, at p. 95
[agreeing with Dueñas to the extent it holds that “due process requires the
trial court to conduct an ability to pay hearing and ascertain a defendant's
ability to pay before it imposes court facilities and court operations
assessments . . . if the defendant requests such a hearing,” italics added];
People v. Frandsen (2019) 33 Cal.App.5th 1126, 1154 [“Given that the
defendant is in the best position to know whether he has the ability to pay, it
is incumbent on him to object to the fine and demonstrate why it should not
be imposed”].)
Sentencing in this case took place more than two years after Dueñas
was decided, and almost a year after Cowan was decided. At the sentencing
hearing, the court ordered Haywood to pay a $200 court operations
assessment fee and a $150 criminal conviction assessment fee, and then
found that he did not have the ability to pay the probation report preparation
fee and attorney’s fees. At no point did defense counsel object to the
imposition of the two assessments or request an ability-to-pay hearing.
Haywood has forfeited the opportunity to challenge the assessments imposed
by the trial court.
Citing People v. Vera (1997) 15 Cal.4th 269, Haywood argues that his
Dueñas claim is not prohibited because a defendant can raise for the first
15
time on appeal a claim asserting the deprivation of “certain fundamental,
constitutional rights.” But this “narrow class” of fundamental rights–the
right to jury trial and the right not to be placed in jeopardy twice (id. at
p. 276)–is not implicated here. (People v. Tully (2012) 54 Cal.4th 952, 980,
fn. 9.)
Haywood’s contention that his Dueñas claim raises a pure question of
law similarly lacks merit. The issue of whether a defendant has an ability to
pay fees and fines is essentially a factual question. (McCullough, supra,
56 Cal.4th at p. 597.) Thus, the requirement that a defendant object to fees
in the trial court based on a purported inability to pay to preserve the issue
on appeal “advance[s] the [forfeiture] goals of proper development of the
record and judicial economy.” (Id. at p. 599.)
B. Haywood’s Ineffective Assistance of Counsel Claim Lacks
Merit.
There is no merit to Haywood’s alternative ineffective assistance
argument based on defense counsel’s failure to object. The record is silent
regarding why counsel did not object to the two assessments, and we cannot
say on this record that counsel had no conceivable tactical purpose for her
inaction. While Haywood was indigent at the time of sentencing, the court
could have considered his future ability to pay. (Cowan, supra,
47 Cal.App.5th at p. 49.) Haywood was only 51, and his crimes suggest he
was able-bodied. At the sentencing hearing, he was in a wheelchair, but he
represented to the court that he would be receiving back surgery, so it is not
clear from the record that his medical issues would preclude his future ability
to pay. Moreover, Haywood sought probation and indicated that he could
comply with its terms, including obtaining and maintaining employment. It
is conceivable that counsel concluded that an objection asserting future
inability to pay would have implicitly rested on an argument that Haywood
16
would fail to maintain employment, and that such an objection would be
detrimental to his chances of being granted probation. As the record does not
affirmatively exclude a rational basis for counsel’s omission, Haywood fails to
establish ineffective assistance of counsel.
DISPOSITION
The judgment is modified to strike the electronic device search
condition. The trial court is directed to issue an amended probation order
striking the electronic device search condition. As modified, the judgment is
affirmed. Because the trial court may be able to impose a valid electronic
device search condition more narrowly tailored to the state’s interests, the
case is remanded to the trial court for further proceedings consistent with
this opinion.
GOLDMAN, J.
WE CONCUR:
POLLAK, P. J.
STREETER, J.
17 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482852/ | Filed 11/9/22 In re A.D. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re A.D., a Person Coming Under the Juvenile
Court Law.
MERCED COUNTY HUMAN SERVICES F084021
AGENCY,
(Super. Ct. No. 20JP-00092A)
Plaintiff and Respondent,
v. OPINION
DIANA D.,
Defendant and Appellant.
THE COURT*
APPEAL from an order of the Superior Court of Merced County. Donald J.
Proietti, Judge.
Caitlin Christian, under appointment by the Court of Appeal, for Defendant and
Appellant.
Forrest W. Hansen, County Counsel, and Jennifer Tran, Deputy County Counsel,
for Plaintiff and Respondent.
-ooOoo-
* Before Hill, P. J., Levy, J. and Franson, J.
Appellant, Diana D. (mother), is the mother of the five-year-old child, A.D. (the
child), who is the subject of this dependency case. Mother challenges the juvenile court’s
orders terminating her parental rights at a Welfare and Institutions Code1 section 366.26
hearing. Mother’s sole claim is that the juvenile court and the Merced County Human
Services Agency (agency) failed to comply with their duty to inquire under the Indian
Child Welfare Act (ICWA). We agree and conditionally reverse.
FACTUAL AND PROCEDURAL BACKGROUND2
In August 2020, the child was taken into protective custody as a result of mother’s
substance abuse, unstable housing, and general neglect of the child. The child’s maternal
grandmother had also reported to law enforcement that she suspected sexual abuse by
mother’s boyfriend. The agency filed a petition alleging the child was described by
section 300, subdivisions (b)(1) and (g). During the agency’s initial inquiry, mother gave
the agency no reason to believe the child was or may be an Indian child. When mother
was asked if she had any Indian ancestry by an agency social worker, she responded,
“ugh, [n]o.”
At the detention hearing held on August 5, 2020, mother appeared by video and
was appointed counsel. The juvenile court directly inquired of mother regarding possible
Indian ancestry in her family, and mother stated, “I don’t know. My grandpa … is Native
American.” Mother then clarified that she would have to “look it up” to determine if her
paternal grandfather had “some American Indian blood in him.” Mother did not know
the name of the tribe that her paternal grandfather could be a member of, and she claimed
she could ask her father for that information.
1 All further statutory references are to the Welfare and Institutions Code.
2 The sole issue on appeal concerns ICWA; therefore, we primarily restrict our facts
to those bearing on that issue.
2.
The juvenile court informed mother that it was important for her to ask her family
members for information and work with the agency to provide the information to the
tribe. Mother denied that the child’s alleged father, R.G. (father), had Indian ancestry.
The juvenile court reserved its ICWA finding and requested that the agency’s ICWA
specialist meet with mother to fill out the appropriate paperwork. The juvenile court
ordered the child detained from the physical custody of the parents and set a combined
jurisdiction and disposition hearing for September 16, 2020.
On August 10, 2020, mother’s signed Parental Notification of Indian Status form
(ICWA-020 form) was filed, which indicated she may have Indian ancestry with an
unknown tribe. The agency sent formal notice pursuant to ICWA to the Bureau of Indian
Affairs (BIA) and Pueblo of Isleta tribe on August 13, 2020. The notice included a
declaration signed under penalty of perjury by a legal clerk for the agency stating the
agency provided all information it had about the relatives of the child. The family
information in the notice included the names of the child’s mother, maternal
grandmother, maternal grandfather, and maternal great-grandfather. An address was
provided for both maternal grandparents, but the notice did not contain a date of birth for
the child’s maternal grandfather.
The agency’s jurisdiction and disposition report, filed on September 15, 2020,
recommended that the juvenile court find the allegations in the petition true and order that
the child remain in out-of-home care with family reunification services provided to
mother. It was not recommended father be provided reunification services based upon
his status as an alleged father. The child was placed in a resource family home,
meanwhile the agency was having difficulty contacting mother to prepare its report.
The ICWA status section of the report detailed mother’s initial denial of Indian
ancestry along with the agency’s service of formal notice on the BIA and Pueblo of Isleta
tribe. A maternal great-aunt was identified as a potential placement option for the child,
and she was going through the resource family approval process. At the jurisdiction and
3.
disposition hearing held on October 5, 2020, the juvenile court found the allegations in
the petition true, ordered reunification services to mother, and set a six-month review
hearing for March 10, 2021.
The agency submitted a Declaration in Support of ICWA Status on December 3,
2020, which detailed the receipt and response of the Pueblo of Isleta tribe to the
information contained in the formal notice. A document attached to the declaration
indicated that an ICWA finding was needed for mother, but no inquiry was completed for
father because his whereabouts were unknown. Mother was documented as claiming
“Tiwa” ancestry, but there was no “Tiwa” tribe. The Pueblo of Isleta tribe was listed as
having a tribal affiliation with “Tigua,” and the “Tigua” tribe was associated with
“Tiwa.” A letter from the Pueblo of Isleta tribe, dated October 28, 2020, stated that the
child was not a member of the tribe based upon the information provided to it by the
agency. In a separate letter, the tribe also explained that the child was ineligible for
membership because she did not meet the one-quarter blood standard for membership in
the tribe.
The six-month status review report, prepared by the agency for the hearing on
March 17, 2021, recommended that family reunification services be continued for mother
and ICWA be found not applicable. The child was now placed with a maternal great-aunt
since October 8, 2020. The ICWA status section of the report indicated that ICWA did
not apply based on mother’s claim of Indian ancestry, and it referenced the declaration
submitted in December 2020. Mother was in contact with the agency and participating in
substance abuse treatment at an inpatient program. At the six-month review hearing,
mother was present and represented by counsel. The juvenile court found ICWA was not
applicable, continued family reunification services for mother, and set a 12-month review
hearing for September 1, 2021.
A few days prior to the child’s fourth birthday in May 2021, the agency filed a
supplemental petition to remove the child from her relative care provider. The maternal
4.
great-aunt requested that the child be removed after she continued to disagree with the
agency’s concerns regarding her inconsistent reports of the child’s allegedly difficult
behavior and attempts to interfere with family reunification. The supplemental petition
was sustained by the juvenile court on June 1, 2021, and the child’s new care provider
claimed the child was doing “remarkably well” in her new home.
The agency’s report for the 12-month review hearing recommended that mother’s
family reunification services be terminated and a section 366.26 hearing be set. The
ICWA status section of the report made note of the finding from the previous review
hearing that ICWA was not applicable without any new information provided. Mother
failed to complete the requirements of her case plan, and father’s whereabouts remained
unknown. At a contested 12-month review hearing held on September 15, 2021, mother
failed to appear. The juvenile court proceeded to terminate mother’s family reunification
services and set a section 366.26 hearing for February 28, 2022.
The agency’s section 366.26 report, filed on January 12, 2022, recommended that
parental rights of mother and father be terminated and a plan of adoption be selected.
The child remained in the same resource family home since May 2021. The report
indicated that ICWA did not apply with no new information provided. Mother failed to
appear for the contested section 366.26 hearing held on February 15, 2022. The juvenile
court found the child adoptable, and it terminated the parental rights of mother and father.
On March 2, 2022, mother filed a timely notice of appeal.
DISCUSSION
Mother contends the juvenile court’s finding that ICWA did not apply was not
supported by substantial evidence because the agency failed to comply with its duty of
initial inquiry. Mother argues the record is insufficient to support the juvenile court’s
ICWA finding because it does not include interviews conducted by the agency with
mother and maternal family members regarding her claim of Indian ancestry.
5.
A. Legal Principles
ICWA reflects a congressional determination to protect Indian children and to
promote the stability and security of Indian tribes and families by establishing minimum
federal standards that a state court, except in emergencies, must follow before removing
an Indian child from his or her family. (25 U.S.C. § 1902; see In re Isaiah W. (2016)
1 Cal.5th 1, 7–8.) In any “proceeding for the foster care placement of, or termination of
parental rights to, an Indian child, the Indian custodian of the child and the Indian child’s
tribe … have a right to intervene” (25 U.S.C. § 1911, subd. (c)), and may petition the
court to invalidate any foster care placement of an Indian child made in violation of
ICWA (25 U.S.C. § 1914; see § 224.2, subd. (e)). An “ ‘Indian child’ ” is defined in
ICWA as an unmarried individual under 18 years of age who is either (1) a member of a
federally recognized Indian tribe, or (2) is eligible for membership in a federally
recognized tribe and is the biological child of a member of a federally recognized tribe.
(25 U.S.C. § 1903(4) & (8); see § 224.1, subd. (a) [adopting federal definitions].)
In every dependency proceeding, the agency and the juvenile court have an
“affirmative and continuing duty to inquire whether a child is or may be an Indian
child .…” (Cal. Rules of Court, rule 5.481(a); see also § 224.2, subd. (a); In re W.B.
(2012) 55 Cal.4th 30, 53; In re Gabriel G. (2012) 206 Cal.App.4th 1160, 1165.) The
continuing duty to inquire whether a child is or may be an Indian child “can be divided
into three phases: the initial duty to inquire, the duty of further inquiry, and the duty to
provide formal ICWA notice.” (In re D.F. (2020) 55 Cal.App.5th 558, 566.)
The initial duty to inquire arises at the referral stage when the reporting party is
asked whether it has “any information that the child may be an Indian child.” (§ 224.2,
subd. (a).) Once a child is received into temporary custody, the initial duty to inquire
includes asking the child, parents, legal guardian, extended family members, and others
who have an interest in the child whether the child is, or may be, an Indian child.
(§§ 224.2, subd. (b), 306, subd. (b).) The juvenile court has a duty at the first appearance
6.
of each parent to ask whether he or she “knows or has reason to know that the child is an
Indian child.” (§ 224.2, subd. (c).) The court must also require each parent to complete
form ICWA-020. (Cal. Rules of Court, rule 5.481(a)(2)(C).)
Next, a duty of further inquiry arises when the agency or the juvenile court has
“reason to believe” the proceedings involve an Indian child but “does not have sufficient
information to determine that there is reason to know that the child is an Indian child.”
(§ 224.2, subd. (e).) As recently clarified by the Legislature, a “reason to believe” exists
when the juvenile court or agency “has information suggesting that either the parent of
the child or the child is a member or may be eligible for membership in an Indian tribe.”
(Id., subd. (e)(1).)
If there is a reason to believe an Indian child is involved, the juvenile court or the
agency “shall make further inquiry regarding the possible Indian status of the child, and
shall make that inquiry as soon as practicable.” (§ 224.2, subd. (e).) Further inquiry
includes, but is not limited to, “[i]nterviewing the parents, Indian custodian, and extended
family members,” and contacting BIA, the State Department of Social Services, and the
tribes and any other person who may have information. (§ 224.2, subd. (e)(2)(A)–(C).)
The final duty component arises when the court or agency has “reason to know”
the child is an Indian child. (In re D.F., supra, 55 Cal.App.5th at p. 567.) A “reason to
know” exists if one of the following circumstances is present: “(1) A person having an
interest in the child … informs the court that the child is an Indian child[;] [¶] (2) The
residence … of the child [or] the child’s parents … is on a reservation or in an Alaska
Native village[;] [¶] (3) Any participant in the proceeding … informs the court that it
has discovered information indicating that the child is an Indian child[;] [¶] (4) The
child … gives the court reason to know that the child is an Indian child[;] [¶] (5) The
court is informed that the child is or has been a ward of a tribal court[;] [or] [¶] (6) The
court is informed that either parent or the child possess[es] an identification card
indicating membership or citizenship in an Indian tribe.” (§ 224.2, subd. (d)(1)−(6).)
7.
If the juvenile court “makes a finding that proper and adequate further inquiry and
due diligence … have been conducted and there is no reason to know whether the child is
an Indian child, the court may make a finding” that ICWA does not apply, subject to
reversal if the court “subsequently receives information providing reason to believe the
child is an Indian child.” If the court receives such information, it must direct the social
worker or probation officer to conduct further inquiry. (§ 224.2, subd. (i)(2).)
Social workers have no duty under federal law to ask extended family members
about possible tribal membership. (In re A.C. (2021) 65 Cal.App.5th 1060, 1069.) The
error, if any, is an error of state law. (Ibid.) The test for prejudicial state law error is
whether, after an examination of the entire cause, including the evidence, we are of the
opinion that “it is reasonably probable that a result more favorable to the appealing party
would have been reached in the absence of the error.” (People v. Watson (1956) 46
Cal.2d 818, 836.)
B. Standard of Review
Where, as here, the juvenile court finds ICWA does not apply to a child, “[t]he
finding implies that … social workers and the court did not know or have a reason to
know the children were Indian children and that social workers had fulfilled their duty of
inquiry.” (In re Austin J. (2020) 47 Cal.App.5th 870, 885.) We review the juvenile
court’s ICWA findings for substantial evidence. (In re Hunter W. (2011) 200
Cal.App.4th 1454, 1467.) We must uphold the juvenile court’s orders and findings if any
substantial evidence, contradicted or uncontradicted, supports them, and we resolve all
conflicts in favor of affirmance. (In re Alexzander C. (2017) 18 Cal.App.5th 438, 446.)
The appellant “has the burden to show that the evidence was not sufficient to support the
findings and orders.” (Ibid.)
8.
C. Analysis
Adequacy of Initial Inquiry
In the present case, mother informed the agency that she had “Tiwa” ancestry
through her paternal grandfather (child’s maternal great-grandfather). The agency
provided formal notice to a federally recognized tribe, Pueblo of Isleta, that the agency
reported as being affiliated with the “Tiwa” tribe. The tribe indicated that the child was
neither a member nor eligible for membership in the tribe based upon the information
provided by the agency. The information provided to the tribe included the names of the
child’s maternal grandparents and great-grandfather.
First, there is evidence that the child’s maternal grandfather, the son of the
individual identified as “Native American” by mother, was available for the agency to
interview. The information in the notice contained the maternal grandfather’s name and
address, however, there is no documentation that he was interviewed by the agency
regarding mother’s claimed Indian ancestry. Mother specifically stated that she would
need to ask the maternal grandfather about the great-grandfather’s Indian ancestry, which
suggests he had such information. The child’s maternal great-aunt was available to the
agency as she had placement of the child during the dependency case, but a great-aunt is
not included among the relatives that an agency must interview to fulfill its duty of
inquiry. (See 25 U.S.C. § 1903(2) [“ ‘extended family member’ ” includes the child’s
“grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or
nephew, first or second cousin, or stepparent”]; § 224.1, subd. (c) [“ ‘extended family
member’ ” is “defined as provided in [s]ection 1903 of the federal Indian Child Welfare
Act”].) There was also no suggestion that she was related to mother’s paternal family
such that she would have had any information necessary for further inquiry.
We agree that the agency was required to interview the child’s maternal
grandfather, who was the son of the claimed source of the child’s possible Indian
ancestry. The agency’s reports and declaration do not expressly indicate that the family’s
9.
Indian ancestry was discussed with the maternal grandfather. In some cases, an agency’s
failure to document every interview of a relative as part of its further inquiry would be
insufficient to invalidate a juvenile court’s ICWA finding on its own. (See, e.g., In re
Gerardo A. (2004) 119 Cal.App.4th 988, 995 [a silent record regarding interviews of
additional family members regarding Indian ancestry did not render the ICWA inquiry
inadequate].) However, we are unable to infer that the maternal grandfather was
interviewed by the agency, in part because the notice to the tribe omitted his date of birth.
We reject the agency’s contention that the information contained in its notice
demonstrates inquiry was conducted of each family member with information listed
therein. The notice merely indicates that biological relative information was listed
without identifying the source of the information. We can only conclude that the
information was obtained as a result of the juvenile court’s direction for the agency’s
ICWA “specialist” to meet with mother to obtain the information that she gathered from
her family regarding her initial claim of unknown Indian ancestry. Although it appears
that mother complied with the juvenile court’s request that she speak with the maternal
grandfather about her Indian ancestry to identify a tribe, there is no evidence
demonstrating that the agency directly inquired of the maternal grandfather.
The juvenile court, at a minimum, should have ensured that the agency attempted
to contact the child’s maternal grandfather regarding mother’s possible Indian ancestry.
The maternal grandfather was readily available to the agency for contact given their
possession of his address. The agency should have made a meaningful effort to contact
the maternal grandfather and attempted to gather the necessary information to assist them
in determining whether there was a reason to know the child was an Indian child.
Therefore, we conclude the agency failed in its duty of initial inquiry and will consider
whether that error was prejudicial.
However, we reject mother’s claim that a required further inquiry was inadequate
because there was no “reason to believe” the child might be an Indian child. The only
10.
tribe mother ever claimed to have potential Indian ancestry from was a non-federally
recognized tribe identified as “Tiwa.” (See 87 Fed. Reg. 4636–4641 (Jan. 28, 2022); see
also 25 U.S.C. § 5131 [requiring the Department of the Interior to publish a list of
federally recognized tribes in the Federal Register every year].) ICWA imposes no duty
on the agency to investigate ancestry related to a non-federally recognized tribe. (See
In re Jonathon S. (2005) 129 Cal.App.4th 334, 338, citing 25 U.S.C. § 1903(8) [“ ‘Indian
tribe’ is defined so as to include only federally recognized Indian tribes”]; In re
Ezequiel G. (2022) 81 Cal.App.5th 984, 1009 [“an Indian child is one with a tribal
affiliation, not merely Indian ancestry.”].) Even if further inquiry was required, we
would find the error harmless for the same reasons discussed below.
Prejudicial Error
The standard for assessing prejudice arising from an ICWA error is relatively
straight forward despite the different approaches that have been recently employed
regarding deficiencies in the duty of initial inquiry. (See In re A.C. (2022) 75
Cal.App.5th 1009, 1011 [deficient initial inquiry mandates reversal]; In re A.C., supra, 65
Cal.App.5th 1060, 1069 [deficient initial inquiry harmless unless parent proffers Indian
ancestry on appeal]; In re Benjamin M. (2021) 70 Cal.App.5th 735 (Benjamin M.)
[deficient initial inquiry harmless unless record indicates there was readily obtainable
information likely to bear meaningfully upon whether the child is an Indian child]; In re
Dezi C. (2022) 79 Cal.App.5th 769 (Dezi C.) [deficient initial inquiry harmless unless
record contains information suggesting a reason to believe that the child may be an
“Indian child” within the meaning of ICWA, such that the absence of further inquiry was
prejudicial to the juvenile court’s ICWA finding].)
To establish prejudicial error, we must find it reasonably probable that an
interview of the maternal grandfather regarding potential Indian ancestry of the child
would yield a different result in the juvenile court’s ICWA determination. (See, e.g.,
In re I.W. (2009) 180 Cal.App.4th 1517, 1531 [no prejudicial error where “mother does
11.
not suggest how the supposed deficiencies she notes would have made a difference given
the information that was in the notices”]; In re Charlotte V. (2016) 6 Cal.App.5th 51, 58
[no prejudicial error from department’s failure to gather additional information from
family members]; In re Breanna S. (2017) 8 Cal.App.5th 636, 654 [prejudicial error
found where reviewing court “[could not say] with any degree of confidence that
additional information concerning [a] relative … would not have altered the tribe’s
evaluation”]; In re E.H. (2018) 26 Cal.App.5th 1058, 1074−1075 [finding prejudicial
error for agency’s failure to ask great-grandmother about her father, who was a possible
source of Indian heritage].)
“ ‘[A] “probability” in this context does not mean more likely than not, but merely
a reasonable chance, more than an abstract possibility.’ ” (Cassim v. Allstate Ins. Co.
(2004) 33 Cal.4th 780, 800.) Accordingly, we must assess the effect of the error we have
identified to see if it is reasonably probable the juvenile court’s ICWA finding would
have been different absent the error.
First, we acknowledge that some courts have concluded an agency’s deficient
inquiry is generally prejudicial when the record is inadequate because of the agency’s
failure to document its inquiries. (See In re K.R. (2018) 20 Cal.App.5th 701, 708; see
also In re N.G. (2018) 27 Cal.App.5th 474, 483 (N.G.).)
In K.R., the court of appeal concluded there was prejudicial error because the
social services agency had not provided a record of its efforts undertaken to comply with
ICWA. There was no evidence the agency had contacted the paternal aunt, paternal
grandparents, or paternal great-grandmother, even though there was contact information
available for them. The appellate court remanded the matter for further inquiry because,
unlike in the instant case, the record indicated that the paternal aunt, paternal
grandparents, and paternal great-grandmother would likely provide additional
information that would assist in determining whether the children had Indian ancestry.
(In re K.R., supra, 20 Cal.App.5th at pp. 707−708.)
12.
In N.G., the appellate court reversed an order terminating parental rights and
remanded the case for compliance with ICWA. In that case, mother successfully
challenged the juvenile court’s determination that ICWA did not apply. Father had filed
an ICWA-020 form indicating he might have Blackfeet or Navajo ancestry, ICWA
notices were sent out early in the proceedings, and after reviewing responses from the
tribes, the court found ICWA did not apply. Later in the proceedings, father told a social
worker he had been in contact with paternal cousins who were registered members of the
Cherokee tribe. Father died shortly thereafter, and there was no evidence the agency
attempted to identify or interview paternal lineal ancestors. The agency was only in
contact with mother twice, and there was no evidence the agency asked mother to
complete the ICWA-020 form or asked mother or any maternal relatives whether N.G.
may have any maternal Indian ancestry. (N.G., supra, 27 Cal.App.5th at pp. 478–479.)
The appellate court in N.G. ultimately found conditional reversal was required
because, among other things, the record failed to show the department fully investigated
the minor’s paternal lineal ancestry after the father reported possible Blackfeet, Navajo or
Cherokee ancestry. (N.G., supra, 27 Cal.App.5th at pp. 481–482.) In noting its departure
from established case law requiring appellant to demonstrate prejudicial error, the court
of appeal reasoned, “in a case such as this one, where the record does not show what, if
any, efforts the agency made to discharge its duty of inquiry [citations], and the record
also does not show that all required ICWA notices were given or that the ICWA notices
that were given included all known identifying information, the burden of making an
adequate record demonstrating the court’s and the agency’s efforts to comply with
ICWA’s inquiry and notice requirements must fall squarely and affirmatively on the court
and the agency. In the absence of an appellate record affirmatively showing the court’s
and the agency’s efforts to comply with ICWA’s inquiry and notice requirements, we will
not, as a general rule, conclude that substantial evidence supports the court’s finding that
proper and adequate ICWA notices were given or that ICWA did not apply. Instead, as a
13.
general rule, we will find the appellant’s claims of ICWA error prejudicial and
reversible.” (N.G., supra, 27 Cal.App.5th at p. 484.)
The courts in In re Antonio R. (2022) 76 Cal.App.5th 421, 435−436 (Antonio R.),
and In re H.V. (2022) 75 Cal.App.5th 433, 438, adopted similar standards in relation to
the initial inquiry, holding that the agency’s failure to interview extended family
members during its initial ICWA inquiry was prejudicial error and therefore either
(1) reversible per se (H.V.), or (2) above such a low bar for prejudice that it was
reversible in most circumstances (Antonio R.). We decline to adopt a position that
reversal is always warranted where an initial inquiry was inadequate. A “rule
establishing automatic reversal without any reason to believe Native American heritage
exists would potentially reward parental gamesmanship and undermine the policy
favoring prompt resolution of juvenile dependency cases. It also potentially runs afoul of
the constitutional requirement that judgments can only be reversed on appeal in cases
where a manifest miscarriage of justice has been shown.” (In re A.R. (2022) 77
Cal.App.5th 197, 206.)
“[I]n the dependency context, automatic reversal for errors that do not invariably
lead to fundamental unfairness would exact a particularly steep cost.… And we have
repeatedly underscored the need to avoid delay in this context. (See, e.g., In re Sade C.
(1996) 13 Cal.4th 952, 993 … [noting “the pointed and concrete harm that the child may
suffer” from prolonged proceedings]; In re Marilyn H. (1993) 5 Cal.4th 295, 306 …
[children have a “compelling right[] … to have a placement that is stable, permanent, and
that allows the caretaker to make a full emotional commitment to the child”].)” (In re
Christopher L. (2022) 12 Cal.5th 1063, 1081.) “There are serious costs if courts delay
finalizing permanency for a child in every case where extended family was not
questioned, on the remote chance those relatives might have information which is
inconsistent with the parents’ disclaimer of Indian ancestry.” (In re M.M. (2022) 81
Cal.App.5th 61, 71.)
14.
More recently, the court in In re Rylei S. (2022) 81 Cal.App.5th 309, further
clarified that “all that is necessary” is for an agency to make a “genuine effort to
investigate the child’s Indian status by complying in good faith with the mandate of
section 224.2, subdivisions (b) and (e).” It required remand for a proper inquiry where
the agency’s failure to conduct an adequate inquiry “makes it impossible for the parent to
show prejudice.” (In re Rylei S., at p. 324.) We find our decision in In re J.N. (2006)
138 Cal.App.4th 450, to be relevant and clarifying in cases where there is a complete lack
of inquiry. In J.N., the parent was never asked whether she had any Indian ancestry and
the record contained no information to that effect. (Id., at p. 461 & fn. 6.) In those
circumstances, we rejected harmless error analysis, “refus[ing] to speculate” about what
the parent’s response to an inquiry might be. (Id. at p. 461.) That conclusion is
consistent with our Constitution’s requirement that a judgment not be “set aside” unless it
“has resulted in a miscarriage of justice” because there still exists a reasonable chance
that a parent would claim Indian ancestry where an inquiry of their side of the child’s
family is completely lacking in the record. (Cal. Const., art. VI, § 13.)
In the instant case, the agency did provide a record of its good faith efforts to
comply with its duty of inquiry by a formal declaration and notice to a tribe. The juvenile
court and agency directly inquired of mother and requested that she obtain additional
information from family members. Mother provided the agency with the additional
information that she needed to obtain, and the agency provided that information to the
BIA and a tribe. The tribe made a determination that the child was not eligible for
membership in the tribe without requesting additional information.
We agree that the agency’s efforts in the instant case were imperfect, given our
finding of error from the absence of direct contact between the agency and the maternal
grandfather, but the failure to complete a portion of the required inquiry cannot be
equated with an agency’s complete failure to conduct an inquiry in good faith.
Otherwise, the prejudice analysis would be indistinguishable from the analysis of error.
15.
For these reasons we do not find that the agency failed to conduct its inquiry in good faith
or completely failed in its duty of inquiry such that prejudicial error has been
demonstrated.
Next, there is another line of cases that conclude reversal is not warranted where
the appellant failed to establish a miscarriage of justice by making an offer of proof or
other affirmative assertion of Indian ancestry on appeal. (See, e.g., In re A.C., supra, 65
Cal.App.5th 1060, 1069; In re Noreen G. (2010) 181 Cal.App.4th 1359, 1388; In re N.E.
(2008) 160 Cal.App.4th 766, 770; In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431.)
These cases hold that “[i]n the absence of such a representation, the matter amounts to
nothing more than trifling with the courts. [Citation.] The knowledge of any Indian
connection is a matter wholly within the appealing parent’s knowledge and disclosure is a
matter entirely within the parent’s present control. The ICWA is not a ‘get out of jail
free’ card dealt to parents of non-Indian children, allowing them to avoid a termination
order by withholding secret knowledge, keeping an extra ace up their sleeves. Parents
cannot spring the matter for the first time on appeal without at least showing their hands.”
(In re Rebecca R., supra, 143 Cal.App.4th at p. 1431.) We acknowledge that mother has
not demonstrated prejudice in this way, but we decline to rely on this reasoning alone in
affirming the juvenile court’s ICWA finding.
Several appellate courts have held that reversal is warranted when an error in
inquiry is prejudicial when the record indicates there was readily obtainable information
that was likely to bear meaningfully upon whether the child is an Indian child.
(Benjamin M., supra, 70 Cal.App.5th 735; In re A.C., supra, 75 Cal.App.5th 1009, 1017
[applying the Benjamin M. court’s standard for prejudice]; In re Darian R. (2022) 75
Cal.App.5th 502, 509 [same].) In Benjamin M., one parent was not available to report or
deny Indian heritage, and the agency never inquired of any of the missing parent’s
available relatives. (Benjamin M., at pp. 744–745.) The appellate court conditionally
16.
reversed to permit the agency to inquire with the father’s brother, who was accessible to
the agency.
The appellate court reasoned that a parent “cannot always easily obtain the
missing information” and the “right at issue in the ICWA context is as much an Indian
tribe’s right to ‘a determination’ of a child’s Indian status as it is a right of any sort of
favorable outcome for the litigants already in a dependency case.” (Benjamin M., supra,
70 Cal.App.5th, at p. 743.) While citing to the decisions from N.G., K.R., and J.N., it
explained that the harmlessness inquiry should be focused on whether the error would
uncover “meaningful proof relevant to the determination, whatever the outcome will be”
rather than “proof of an actual outcome (that the parent may actually have Indian
heritage).” (Benjamin M., at pp. 743–744.) With information about ancestry on the
father’s side “missing,” inquiry with a person sharing the father’s ancestry “would likely
have shed meaningful light on whether there [wa]s reason to believe Benjamin [wa]s an
Indian child.” (Id. at p. 744.) Under this approach, continued inquiry is required “where
the probability of obtaining meaningful information is reasonable in the context of
ICWA.” (Ibid.)
The court in Dezi C. recently took yet another approach, concluding initial inquiry
errors require reversal where a reviewing court would have “reason to believe” further
inquiry might lead to a different result. (Dezi C., supra, 79 Cal.App.5th 769, 779.) The
appellate court illustrated an example of its rule as follows: “a reviewing court would
have ‘reason to believe’ further inquiry might lead to a different result if the record
indicates that someone reported possible American Indian heritage and the agency never
followed up on that information; if the record indicates that the agency never inquired
into one of the two parents’ heritage at all (e.g., Benjamin M., supra, 70 Cal.App.5th at
p. 740); or if the record indicates that one or both of the parents is adopted and hence
their self-reporting of ‘no heritage’ may not be fully informed (e.g., [In re A.C.], supra,
75 Cal.App.5th at pp. 1015–1016).” (Ibid.)
17.
The Dezi C. court was critical of Benjamin M., based upon its reasonable
conclusion that Benjamin M.’s holding was being applied with too much focus on the
“ease of obtaining information.” (Dezi C., supra, 79 Cal.App.5th at p. 785.) It rejected
mother’s argument that the agency had “readily obtainable information … likely to bear
meaningfully upon whether [Dezi and Joshua]” were Indian children because the
[d]epartment could have easily interviewed mother’s and father’s relatives about the
children’s Indian heritage when they questioned them on other topics.” (Id. at p. 786.)
We believe Dezi C.’s criticism of Benjamin M. is more appropriately placed on the cases
adopting its rule with too narrowed of a focus on information being “readily obtainable.”
(See Antonio R., supra, 76 Cal.App.5th at p. 431; In re J.C. (2022) 77 Cal.App.5th 70,
81.)
Whether information is “readily obtainable” is only one aspect of the Benjamin M.
analysis, and this will generally be determined when analyzing the adequacy of the
agency’s inquiry. If the information allegedly possessed by a relative was not readily
obtainable by the agency, then the failure to obtain that information would be unlikely to
render the agency’s inquiry inadequate. The agency’s ease of obtaining information from
a relative is most relevant to our initial determination of the existence of error. Where a
relative is not available to the agency such that information is not “readily obtainable,”
there would be no basis to find the agency failed to comply with its duty in the first place.
(See Antonio R., supra, 76 Cal.App.5th at p. 431 [inadequate inquiry where the agency
failed to inquire of known and available extended family members]; In re J.W. (2022) 81
Cal.App.5th 384 [error in initial inquiry for failure to ask extended family members about
their Indian ancestry despite the agency having contact with those family members].)
The Dezi C. court attempts to distinguish its “reason to believe” rule from the
Benjamin M. approach because it focuses on “whether it is reasonably probable that an
agency’s error in not conducting a proper initial inquiry affected the correctness (that is,
the outcome) of the juvenile court’s ICWA finding.” (Dezi C., supra, 79 Cal.App.5th at
18.
p. 781.) The Dezi C. court stated its approach was most similar to the Benjamin M.
approach, but it expressed concerns that Benjamin M. was not outcome focused enough
and could be too easily applied by other courts as an automatic reversal rule. (Dezi C., at
pp. 785–786.) However, we believe the critical analysis in the Benjamin M. approach is
sufficiently outcome focused because it determines whether the missing information
bears meaningfully on the inquiry into a child’s ancestry. We would reject Dezi C. to the
extent that it can be interpreted as requiring actual proof that Indian ancestry would be
revealed by further inquiry because it is only necessary that appellant demonstrate a
reasonable probability that Indian ancestry would be revealed.
Information can only “bear meaningfully” on a child’s Indian status where there is
a reasonable probability that obtaining the information would impact the result of the
juvenile court’s ICWA determination. (Benjamin M., supra, 70 Cal.App.5th at p. 744
[continued inquiry required where the “probability of obtaining meaningful information
is reasonable”].) The fact that a relative is likely to have general knowledge about a
parent’s ancestry does not mean that obtaining such information will result in the
discovery of information that was both “missing” and “meaningful” such that the juvenile
court’s ICWA determination would have been affected. There must exist a reasonable
chance that interviewing an available relative would lead to “meaningful” information.
Remand for conducting inquiries of relatives where there exists only speculation that they
possess information that is relevant to the inquiry would be an empty formality, a waste
of judicial resources, and detrimental to the children’s interests in stability. (Rebecca R.,
supra, 143 Cal.App.4th at p. 1431 [“Parents unable to reunify with their children have
already caused the children serious harm; the rules do not permit them to cause additional
unwarranted delay and hardship, without any showing whatsoever that the interests
protected by the ICWA are implicated in any way.”].)
We also recognize the difficulty in assessing the effect that obtaining potentially
unknown information would have on the juvenile court’s ICWA finding. That is why a
19.
flexible, case-by-case approach is most appropriate in this context because there are a
number of circumstances that can potentially undermine the juvenile court’s ICWA
determination. A few of those circumstances are specifically acknowledged by the court
in Dezi C., such as where the agency fails to follow up on a parent’s claim of possible
Indian ancestry; an inquiry into the ancestry of one of the child’s parents has been
completely omitted despite the availability of either the parent or one of their relatives
(e.g., Benjamin M., supra, 70 Cal.App.5th at p. 740); or a parent’s self-reporting of “no
Indian ancestry” is not fully informed because they are adopted and estranged from their
family (In re Y.W. (2021) 70 Cal.App.5th 542, 554.). Although the actual effect of
obtaining the information is unknown in these circumstances, there exists a reasonable
chance that Indian ancestry will be disclosed upon further inquiry such that the
information is meaningful.
The requirement that an appellant demonstrate that the information missing as a
result of the inadequate inquiry is meaningful to the determination of the child’s Indian
status serves both the interests of Indian tribes and dependent children awaiting adoption.
Such a limit on conditional reversals promotes the child’s interest in avoiding the delay
and instability that results from orders for additional inquiry “without any showing
whatsoever that the interests protected by the ICWA are implicated in any way.” (In re
Rebecca R., supra, 143 Cal.App.4th 1426, 1431.) The interests of Indian tribes are also
recognized in that a parent’s potential lack of knowledge regarding their Indian ancestry
will be appropriately considered because a parent’s equivocal response can be properly
weighed against any other meaningful information that may be available to the agency.
However, once a parent unequivocally denies having Indian ancestry, the
reasonable chance that a relative has information that would affect the outcome of the
inquiry becomes substantially diminished absent evidence that they were estranged from
their family since childhood. (In re Ezequiel G., supra, 81 Cal.App.5th at p. 1015 [“Each
of the parents unequivocally denied Indian ancestry, and mother has not identified any
20.
evidence in the record that would support an inference that she or the children’s fathers
might unknowingly be members of an Indian tribe.”]; (In re J.W., supra, 81 Cal.App.5th
384 [“[m]other was raised by her biological family with whom she had remained in
contact, and the record does not otherwise suggest that [m]other’s denial of Indian
heritage is ill informed, unfounded, or incorrect”]; In re M.M., supra, 81 Cal.App.5th 61
[“There is nothing in the record indicating mother and father might have been unaware of
having Indian ancestry. We therefore reject mother’s ‘unvarnished contention that
additional interviews of [relatives] would have meaningfully elucidated the children’s
Indian ancestry.’ ”]; In re G.A. (2022) 81 Cal.App.5th 355 [“Agency had no evidence
whatsoever of a tribal link. Mother never claimed Indian ancestry. There is no evidence
she was adopted and thus unaware of her biological relatives.”].)
In sum, the crucial question to resolve for prejudicial error resulting from an
agency’s inadequate initial inquiry is whether the completion of the missing portion of
the inquiry would have affected the juvenile court’s determination on the applicability of
ICWA. When properly applied, the rules of Benjamin M. and Dezi C. are consistent with
our Constitution’s requirement that no judgment should be set aside unless “it is
reasonably probable that a result more favorable to the appealing party would have been
reached in the absence of the error.” (People v. Watson, supra, 46 Cal.2d at p. 836.)
Each case requires reversal only where it is reasonably probable that the absence of
available and meaningful information affected the correctness of the juvenile court’s
ICWA determination. (Benjamin M., supra, 70 Cal. App. 5th at p. 744 [continued
inquiry required where the “probability of obtaining meaningful information is
reasonable”]; Dezi C., supra, 79 Cal.App.5th at p. 782 [further inquiry required where the
record gives the appellate court a reason to believe further inquiry on remand “may
undermine the juvenile court’s ICWA finding”].)
In the present case, mother informed the juvenile court that she needed to speak
with her father to obtain the missing information it was requesting regarding her
21.
unknown Indian ancestry. Subsequently, the agency received information from the
mother, and we can reasonably infer that she received this information from the maternal
grandfather. However, there is still a reasonable chance that the outcome of the initial
inquiry would have been different because the social worker would have been able to
obtain all of the relevant biographical information from the maternal grandfather, such as
his date of birth, in a direct interview. The record is also unclear as to the whereabouts of
the maternal great-grandfather, and a direct interview with his son, the maternal
grandfather, would have provided information “meaningfully bearing” on whether the
child had Indian ancestry through the maternal family.
Accordingly, we conclude that the juvenile court’s finding that ICWA was not
applicable to the child is not supported by substantial evidence. Under any of the lines of
cases requiring an appellant to affirmatively demonstrate prejudice, we would conclude
that the juvenile court’s error was prejudicial. The juvenile court, at a minimum, should
have ensured that the agency attempted to contact the child’s maternal grandfather
regarding mother’s possible Indian ancestry. The child’s maternal grandfather was the
son of the maternal great-grandfather, whom mother claimed her Indian ancestry from.
(See e.g., In re E.H. (2018) 26 Cal.App.5th 1058, 1074−1075 [finding prejudicial error
for agency’s failure to ask great-grandmother about her father, who was a possible source
of American Indian heritage].)
The maternal grandfather was readily available to the agency for contact by mail
since his address was listed in the notice to the tribe. The agency should have made a
meaningful effort to contact the maternal grandfather and attempted to gather the
necessary information to assist them in determining whether there was a reason to believe
the child was an Indian child. The agency’s omission of the maternal grandfather’s date
of birth in the family information provided to the tribes may have also impacted the
tribe’s ability to conduct their own inquiry into the maternal great-grandfather’s possible
ancestry. (See In re Breanna S. (2017) 8 Cal.App.5th 636, 654 [prejudicial error found
22.
where reviewing court “[could not say] with any degree of confidence that additional
information concerning [the child of a relative identified as Indian] … would not have
altered the tribe’s evaluation”].) These omissions lead us to conclude that the juvenile
court’s finding that the ICWA did not apply was not supported by substantial evidence
and limited remand is required.
DISPOSITION
The finding that ICWA does not apply is conditionally reversed, and the matter is
remanded to the juvenile court with directions to order the agency to comply with the
inquiry provisions set forth in section 224.2.
If, after the court finds adequate inquiry has been made consistent with the
reasoning in this opinion, the court finds ICWA applies, the court shall vacate its existing
order and proceed in compliance with ICWA and related California law. If the court
finds ICWA does not apply, the finding that ICWA does not apply to the case shall be
reinstated.
In all other respects, the court’s orders terminating parental rights are affirmed.
23. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482849/ | NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND
MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
RICHARD MOUNTZ and TATIANA MOUNTZ, husband and wife;
JAMES ROGERS and KELSEY ROGERS, husband and wife; CRAIG
NELSON and CINDY NELSON, husband and wife; WILLIAM HESS and
THERESA HESS, husband and wife; CHRIS KRZEMINSKI and
MICHELLE KRZEMINSKI, husband and wife, Plaintiffs/Appellees,
v.
MOUNTAIN GATE PROPERTY OWNERS ASSOCIATION, INC., an
Arizona non-profit corporation, Defendant/Appellant.
No. 1 CA-CV 21-0656
FILED 11-10-2022
Appeal from the Superior Court in Navajo County
No. S0900CV202000470
The Honorable Jon H. Saline, Judge Pro Tempore
AFFIRMED
COUNSEL
Jones Skelton & Hochuli PLC, Phoenix
By Ryan J. McCarthy, Jonathan P. Barnes, Jr., David C. Onuschak
Counsel for Defendant/Appellant
Degnan Law Esq., Phoenix
By David Degnan, Mark W. Horne, Justin Fouts
Counsel for Plaintiffs/Appellees
Carpenter Hazlewood Delgado & Bolen LLP, Tempe
By Scott B. Carpenter, Alexis G. Firehawk, Greg A. Stein
Counsel for Amicus Curiae, Community Associations Institute
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which Presiding
Judge Jennifer M. Perkins and Judge James B. Morse Jr. joined.
B R O W N, Judge:
¶1 Mountain Gate Property Owners Association (“the
Association”) adopted an amendment (“Amendment”) to its Declaration of
Covenants, Conditions and Restrictions (“CC&Rs”), imposing restrictions
on short-term property leases. Several lot owners (“Owners”) sued the
Association, seeking in part a declaratory judgment that the Amendment
was unenforceable. Following an evidentiary hearing, the superior court
ruled in favor of Owners. The Association appeals from that ruling. For
reasons that follow, we affirm.
BACKGROUND
¶2 Mountain Gate is a planned community in the Town of
Pinetop-Lakeside, consisting of 117 lots that are each subject to the CC&Rs,
which authorize amendments if approved by at least half of the lot owners.
After receiving complaints about short-term leases, the Association’s Board
of Directors (“the Board”) sent a letter to each lot owner asking for approval
of the Amendment. The letter indicated that owners could approve the
Amendment by signing and returning an attached consent form. At the
subsequent annual meeting, the Board’s vice president announced that the
Amendment passed. The recorded document bore the notarized signature
of the Association’s vice-president, who certified that the Amendment was
adopted by at least 50% of the lot owners.
¶3 Owners then filed their lawsuit, which included claims for
breach of duty, breach of the duty of good faith and fair dealing, and breach
of contract, as well as declaratory and injunctive relief. After discovery,
briefing, and an evidentiary hearing, the superior court declared the
Amendment invalid because it was not executed by at least half of the
owners. The court also found it was not reasonably foreseeable that a
majority of the property owners could amend the CC&Rs to “impose
2
MOUNTZ, et al. v. MOUNTAIN GATE
Decision of the Court
restrictions on leasing of lots.” The court therefore enjoined the Association
from enforcing the Amendment. Because other matters were still pending
in the case, the court declined to rule on the issue of attorneys’ fees. The
Association timely appealed, and we have jurisdiction under A.R.S. § 12-
2101(A)(5)(b).
DISCUSSION
¶4 We review the grant or denial of a preliminary injunction for
an abuse of discretion, deferring to the superior court’s factual findings
unless they are clearly erroneous. IB Property Holdings, LLC v. Rancho Del
Mar Apartments Ltd. P’ship., 228 Ariz. 61, 64, ¶ 5 (App. 2011). We will affirm
the court’s ruling for any reason supported by the record. See Sycamore Hills
Ests. Homeowners Ass’n, Inc. v. Zablotny, 250 Ariz. 479, 485, ¶ 20 (App. 2021).
¶5 A restrictive covenant is a contract, and we review its
interpretation de novo. Powell v. Washburn, 211 Ariz. 553, 555, ¶ 8 (2006);
see also Dreamland Villa Cmty. Club, Inc. v. Rainey, 224 Ariz. 42, 46, ¶ 17 (App.
2010). Restrictive covenants “should be interpreted to give effect to the
intention of the parties.” Powell, 211 Ariz. at 557, ¶ 13. We look to the
“language used in the instrument, . . . the circumstances surrounding the
creation of the [instrument], and . . . the purpose for which it was created.”
Id. (quoting Restatement (Third) of Property (Servitudes) § 4.1(1) (2000)).
¶6 The Association argues the CC&Rs did not require the
approving owners to personally sign the Amendment. Instead, the
Association contends that the CC&Rs authorized a Board member to certify
the adoption and execute the Amendment. According to the Association,
when the approving owners signed and returned their consent forms, they
gave the Board actual authority to execute the Amendment on their behalf.
¶7 Under Section 11(E), the CC&Rs authorize an amendment “by
Instrument executed by the [o]wners of at least fifty percent (50%) of the Lots
. . . and such amendment shall not be effective until the recording of such
Instrument.” (Emphasis added.) Restrictive covenants are contracts.
Powell, 211 Ariz. at 555, ¶ 8. When we interpret them, as with any contract,
we strive to give words their ordinary, common-sense meaning to carry out
the parties’ intent. Prieve v. Flying Diamond Airpark, LLC, 252 Ariz. 195, 198,
¶ 8 (App. 2021). Enforcing the intent of the parties is the “cardinal
principle” for interpretating restrictive covenants. Powell, 211 Ariz. at 557,
¶ 14. We will not read a covenant in a way that defeats the plain and
obvious meaning of the restriction. Arizona Biltmore Ests. Ass’n v. Tezak, 177
Ariz. 447, 449 (App. 1993).
3
MOUNTZ, et al. v. MOUNTAIN GATE
Decision of the Court
¶8 The CC&Rs do not define “execute,” but the term generally
means “[t]o perform or complete (a contract or duty),” “[t]o make (a legal
document) valid by signing; to bring (a legal document) into its final, legally
enforceable form.” Execute, Black’s Law Dictionary (11th ed. 2019). Under
the ordinary, common-sense meaning of the word “execute,” each
approving owner needed to sign the “Instrument” and it would not become
effective until recorded.
¶9 The “Instrument” here is the Amendment, and it was
executed by only one lot owner, a Board member. The plain language of
Section 11(E) does not authorize one individual to amend the CC&Rs by
“written consent,” or to certify that an amendment was “adopted by” a
majority of homeowners. Instead, under Section 11(E) the Amendment
itself needed to be executed by at least half of the lot owners. Because it was
not done in this manner, the Amendment is invalid. See Multari v. Gress,
214 Ariz. 557, 559-60, ¶¶ 15-19 (App. 2007) (finding an amendment altering
the original declaration was invalid for lack of compliance with the
“exclusive amendment procedure”); La Esperanza Townhome Ass’n, Inc. v.
Title Sec. Agency of Ariz., 142 Ariz. 235, 239-40 (App. 1984) (concluding that
amendments to restrictions that are not properly executed never become
effective).
¶10 Although the Association acknowledges that various sources
similarly define “execute” to mean the performance or action of making a
legal document valid by signing, it broadly reads those definitions to allow
the execution of a document through an agent. But the Association cites no
authority supporting its argument that agency principles may trump the
plain language of a restrictive covenant. Section 11(E)’s requirements for
amending the CC&Rs are unambiguous, and we will not add provisions
that were not originally included because doing so would defeat the intent
of the amendment provision. See Powell, 211 Ariz. at 557-58, ¶¶ 14, 20.
Indeed, when originally adopted, the CC&Rs were “executed” by the
Declarant’s agent, who attested, “IN WITNESS WHEREOF, Mountain Gate
Development LLC, an Arizona Limited Liability Company, has executed
This Declaration of Covenants, Conditions and Restrictions by the
undersigned.” (Emphasis added.) Similarly, the Amendment should have
been “executed” by at least 50% of Mountain Gate’s approving lot owners.
¶11 Alternatively, the Association relies on A.R.S. § 33-1817(A)(3),
which states that “[w]ithin thirty days after the adoption of any amendment
pursuant to this section, the association . . . shall prepare, execute and record
a written instrument setting forth the amendment.” The Association argues
that the statute, coupled with its agency argument noted above, authorized
4
MOUNTZ, et al. v. MOUNTAIN GATE
Decision of the Court
it to “prepare, execute, and record” the Amendment on the owners’ behalf.
Again, the Association cites no authority suggesting that § 33-1817(A)(3)
was meant to override the specific requirements governing amendments
found in the CC&Rs. Contracts are read to incorporate applicable statutes,
but a statute governs only when the contract is incompatible with the
statute. Sch. Dist. No. One of Pima Cnty. v. Hastings, 106 Ariz. 175, 177 (1970);
Huskie v. Ames Bros. Motor & Supply Co., 139 Ariz. 396, 402 (App. 1984). By
its express language, § 33-1817(A)(3) applies only to amendments adopted
“pursuant to this section,” which means the statute is not incorporated into
the CC&Rs. Moreover, the Association offers no meaningful explanation
why the statute should be read as allowing an agent to perform an
obligation—execution of the “Instrument”—specifically given to lot owners
under Section 11(E). Accepting the Association’s theory would defeat the
plain meaning of the CC&Rs. See Arizona Biltmore Ests. Ass’n, 177 Ariz. at
449.
¶12 Also, nothing in § 33-1817(A)(3) shows that planned
communities are precluded from enacting more stringent or more specific
requirements for adopting amendments. When the legislature desires to
preempt a planned community’s restrictive covenants in certain cases, it has
done so by using specific language to that effect. See, e.g., A.R.S. § 33-
1817(A)(4) (introducing the covered topic with “[n]otwithstanding any
provision in the declaration . . . .”). Section 33-1817(A)(3) does not include
that language, or anything similar indicating legislative preemption. The
superior court did not err in concluding that the Amendment is invalid
because it was not executed by the owners. Thus, we need not address
whether the court properly held that the Amendment is also invalid
because it was not reasonably foreseeable.
CONCLUSION
¶13 We affirm the superior court’s order declaring the
Amendment invalid based on an ineffective amendment process and
enjoining the Association from enforcing it. In our discretion, and because
there are unresolved claims in the superior court, we deny the Owners’
request for attorneys’ fees (under A.R.S. § 12-341.01 and the CC&Rs),
5
MOUNTZ, et al. v. MOUNTAIN GATE
Decision of the Court
deferring the request to the superior court pending the ultimate resolution
of this matter. See Tierra Ranchos Homeowners Ass’n v. Kitchukov, 216 Ariz.
195, 204, ¶ 37 (App. 2007). As the successful party on appeal, the Owners
are awarded taxable costs subject to appellees’ compliance with ARCAP 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
6 | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482845/ | NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with FED. R. APP. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 9, 2022 *
Decided November 10, 2022
Before
FRANK H. EASTERBROOK, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 22-1069
ROBERT L. TATUM, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of
Wisconsin.
v.
No. 11-C-1131
EARNELL LUCAS, et al.,
Defendants-Appellees. Lynn Adelman,
Judge.
ORDER
Robert Tatum, now serving a criminal sentence in Wisconsin, filed an expansive
complaint against dozens of Milwaukee County officials, asserting that each violated
*
We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 22-1069 Page 2
his rights in some way while he was a pretrial detainee. He appeals numerous rulings
from this nearly 11-year-long litigation. Seeing no error in any of them, we affirm.
I.
While awaiting trial on homicide charges from June 2010 to June 2011, Tatum
was held at the Milwaukee County Jail. He amassed 85 disciplinary violations while
there and believes that all or many were based on religious persecution. After his initial
criminal conviction and transfer to the custody of the Wisconsin Department of
Corrections, 1 he filed a complaint asserting at least 25 claims—ranging from excessive
force to inadequate medical care to the lack of a religious diet—against over 30
individuals who worked for Milwaukee County.
What came next is difficult to follow: a decade’s worth of litigation before two
district judges, involving screening, three motions for summary judgment, and a jury
trial—in addition to contentious discovery and scores of motions for reconsideration,
judicial recusal, and sanctions. At screening, Judge Randa (who presided for the first
five years) dismissed a handful of the claims. See 28 U.S.C. § 1915A. But he allowed
Tatum to proceed with the rest all in one lawsuit. The judge accepted Tatum’s theory
that his claims were all related because each defendant’s unlawful conduct—in
otherwise unrelated incidents—stemmed from an alleged conspiracy to “retaliate”
against him because of his membership in the Nation of Islam.
In the next two years, the defendants filed two collective motions for summary
judgment. In its orders partially granting and partially denying the motions, the district
court did not specify which claims survived against which defendants. It stated that
broad categories of claims could continue. For example, the court allowed Tatum to
proceed on his “deliberate indifference to medical needs” claims—without making clear
which of many incidents and defendants those claims involved.
As the November 2015 trial date loomed, the defendants asked the court to
clarify which claims, and against which defendants, they should be prepared to address
1
In 2017 this court reversed the denial of Tatum’s petition for a writ of habeas
corpus under 28 U.S.C. § 2254(d)(1), concluding that the denial of his motion to
represent himself in his criminal trial was contrary to, and an unreasonable application
of, established Supreme Court precedent. Tatum v. Foster, 847 F.3d 459 (7th Cir. 2017).
Tatum was later tried again and convicted.
No. 22-1069 Page 3
at trial. They also asked the court to dismiss (and remove from the case caption) the
defendants against whom no claims remained. The court clarified broadly that Tatum
could not litigate certain claims at trial, but it declined to alter the list of defendants.
Then it moved the trial date to May 2016.
Around that time, the case was reassigned to Judge Adelman. After a status
hearing in May 2018 (in the interim, pretrial proceedings before a magistrate judge had
stalled), the court noted in a minute entry that the case was in an “undesirable state”
because it was unclear “which claims against which parties [were] supposed to proceed
to trial.” The court granted the defendants’ request to file a motion “that will serve as a
vehicle through which the court can identify the claims that should proceed to trial.”
The defendants then moved for summary judgment and for reconsideration of the
initial screening orders.
The court declined to reconsider the screening orders—even though it
determined that the case involved unrelated claims that were improperly joined—
because many claims had already been adjudicated, and the statute of limitations would
preclude Tatum from refiling others. Instead, the court identified the claims that had
survived previous proceedings and considered each on the merits, entering judgment
for defendants on all but four claims.
Because those claims were unrelated for purposes of Federal Rule of Civil
Procedure 20(a)(2), the court gave notice that it would sever them under Rule 21. And
the court allowed Tatum to choose which claim would remain under the primary case
number and proceed to trial first. When Tatum’s response did not identify a claim—he
later attributed this omission to a missing page—the court picked a claim. It retained in
this case Tatum’s claim that Earnell Lucas, Tricia Carlson, and Melissa Elliot—all jail
employees—violated his procedural due process rights by refusing to allow him live
witnesses during three disciplinary hearings. The other claims migrated to separate
cases, all of which have been resolved.
In 2022, Tatum took the due-process claims to trial, representing himself
although the court had recruited counsel for him after the summary judgment
proceedings. The jury returned a verdict in favor of the defendants.
No. 22-1069 Page 4
II.
On appeal, Tatum challenges myriad decisions made during his decade-long
litigation. We address only the arguments pertaining to the due-process claims he lost
at trial and the claims resolved before severance. The proper place to raise arguments
related to the severed claims was in the severed cases.
A.
Tatum first contests the district court’s entry of summary judgment for the
defendants on a series of claims in 2013, 2014, and 2019. 2 We review the decisions
de novo, considering the evidence in the light most favorable to Tatum. See Stockton v.
Milwaukee County, 44 F.4th 605, 614 (7th Cir. 2022).
1.
As for the 2013 summary judgment decision, Tatum contests the district court’s
ruling for the defendants on his claims that he was deprived of meaningful access to the
courts during his (first) criminal trial. Tatum alleged that guards confiscated a manual
on self-representation and did not provide him with forms needed to file an appeal. The
court concluded, however, that he did not lack access to the courts because he was
represented by counsel at the time. See Campbell v. Clarke, 481 F.3d 967, 968 (7th Cir.
2007) (citing Bounds v. Smith, 430 U.S. 817, 830–32 (1977)). Tatum cites a footnote from
Casteel v. Pieschek to argue otherwise. 3 F.3d 1050, 1054 n.4 (7th Cir. 1993). But there, we
merely clarified that a litigant lacks meaningful access to the courts if his criminal
defense attorney is “unable or unwilling” to assist with habeas or civil filings. Id. Here,
2 As an initial matter, Tatum argues that each time the defendants moved for
summary judgment, the district court should have considered his response brief as a
cross-motion for summary judgment and found in his favor on all claims. True, courts
may grant summary judgment for the non-moving party if all the requirements for a
judgment are met. See FED. R. CIV. P. 56(f)(1); Jones v. Union Pac. R. Co., 302 F.3d 735, 740
(7th Cir. 2002). But Tatum’s argument fails because no authority requires courts to do so.
No. 22-1069 Page 5
Tatum alleged only that he lacked the resources to file pro se motions in the criminal
case, in which he was represented. See Campbell, 481 F.3d at 967.
Tatum also challenges the court’s decision on his claim that guards retaliated
against him because he requested a vegetarian diet for religious reasons. According to
Tatum, the defendants submitted “no evidence” contradicting his attestations that they
disciplined him because he requested a religious diet. But, as the district court
explained, the defendants attested that they disciplined Tatum because he broke the
prison’s rules, not because of his religion. And Tatum admitted to breaking those rules.
Thus, his statement about their subjective intent was speculation unfit to stave off
summary judgment. Tatum’s cursory argument fails to engage with the reason the court
ruled in the defendants’ favor and is therefore waived. See Klein v. O'Brien, 884 F.3d 754,
757 (7th Cir. 2018).
2.
As for the 2014 decision, Tatum challenges the district court’s ruling on his state-
law privacy claim, which was based on an alleged strip search. Again, Tatum’s
argument fails because he does not engage with the reasons he lost. See Klein, 884 F.3d
754, 757. The district court determined that the defendants were covered by Wisconsin’s
governmental tort immunity statute, WIS. STAT. § 893.80(4), because their actions
involved the exercise of their discretion and judgment, see Lodl v. Progressive N. Ins. Co.,
646 N.W.2d 314, 320 (Wis. 2002). Tatum says nothing to cast doubt on that conclusion.
3.
With respect to the 2019 decision on the defendants’ third and final summary
judgment motion, Tatum argues that Judge Adelman contravened the law of the case
when he revisited several of Judge Randa’s rulings. (In actuality, Judge Randa never
considered many of the claims on which Judge Adelman later ruled.) But a district court
may always reconsider interlocutory rulings under Federal Rule of Civil Procedure
54(b). See Galvan v. Norberg, 678 F.3d 581, 587 (7th Cir. 2012). And the law-of-the-case
doctrine allows a second district judge to reconsider the rulings of a first judge when
those rulings were incorrect. See Gilbert v. Ill. State Bd. of Educ., 591 F.3d 896, 902 (7th Cir.
2010). We thus turn to whether Judge Adleman’s rulings were correct.
Tatum first argues that Judge Adelman erred by ruling for the defendants on his
claim under the Religious Land Use and Institutionalized Persons Act regarding the
No. 22-1069 Page 6
need for a vegetarian diet. Tatum attested that he once saw meat in the nutraloaf he was
served (exclusively) when in disciplinary housing. See Prude v. Clarke, 675 F.3d 732, 733
(7th Cir. 2012). He argues that summary judgment was improper because there is a
genuine dispute over whether the nutraloaf contained meat. But he ignores the district
court’s conclusion that the jail provided Tatum a vegetarian diet and that even if Tatum
somehow received meat one time, this was not a “substantial burden” on the exercise of
his religion under the Act. See Klein, 884 F.3d 754, 757.
Tatum also argues that the district court erred by ruling against him on his
Fourteenth Amendment claim, which was based on the medical care he was given
when he refused to eat nutraloaf, once for as long as 25 days. Because Tatum was a
pretrial detainee, we ask whether the care he received on hunger strike was objectively
unreasonable. See Miranda v. County of Lake, 900 F.3d 335, 352 (7th Cir. 2018). Tatum
asserts that medical staff should have sought a court order to forcibly feed him and that
a jury could infer unreasonableness from the obvious risk of “just watching long
periods of starvation.” Though the medical staff did not try to forcibly feed Tatum, they
did not just watch: staff evaluated Tatum twice a week, closely monitored his weight
(which never fell more than seven pounds below his weight at the start of his pretrial
detention), and devised a plan to increase his weight that appears to have worked and
taken him back to his normal weight within a month. This care was not objectively
unreasonable. Moreover, Tatum has not, as he must, shown any harm resulting from
this care. See Gabb v. Wexford Health Sources Inc., 945 F.3d 1027, 1032 (7th Cir. 2019).
Next, Tatum contests the district court’s ruling on his claim that a nurse “ordered
no medical safeguards to avoid concussion or sudden death” after he injured his head.
The court concluded that he did not receive objectively unreasonable care because his
medical records showed that other staff attended to the injury and performed “neuro
checks.” On appeal, Tatum argues that the court erroneously relied on those records,
which he says were authenticated through an expert that the defendants had not
properly disclosed. But he is mistaken. The medical records were introduced through a
nursing supervisor’s declaration—to which Tatum never objected.
Tatum responds that even if the records were properly introduced, he
contradicted them by attesting that “nothing was done.” But Tatum’s verified complaint
stated only that a single nurse failed to order certain measures, not that he received no
treatment for the head injury. We must “focus on the totality of facts and circumstances
faced by the individual alleged to have provided inadequate medical care.” See McCann
v. Ogle County, 909 F.3d 881, 886 (7th Cir. 2018). It is undisputed that other staff
No. 22-1069 Page 7
attended to Tatum and performed “neuro checks.” And no evidence clarifies the nurse’s
role or suggests that she bore sole responsibility for Tatum’s care. In any event, Tatum
did not identify any harm he suffered because of this supposed lack of treatment.
See Gabb, 945 F.3d at 1032.
Tatum next challenges the district court’s conclusion that he failed to develop
any argument for his due-process claim that the defendants punished him by
transferring him to disciplinary housing before disciplinary hearings were held. Tatum
argues that he developed his argument in earlier summary judgment filings. But we
cannot expect the court to have sifted through years of litigation to try to understand an
argument that Tatum had the opportunity set forth in response to the final motion for
summary judgment. See Johnson v. Cambridge Indus., Inc., 325 F.3d 892, 898 (7th Cir. 2003)
(“[D]istrict courts … are not required to scour every inch of the record for evidence that
is potentially relevant to the summary judgment motion before them.”).
Similarly, Tatum contests the court’s conclusion that he put forth no evidence
that the jail had a practice of using a “restraint bed” as punishment. Tatum points us to
the defendants’ statement of proposed facts and to a 174-paragraph declaration but
does not tell us what the evidence is. Such broad citations do not allow us to determine
if there was any genuine dispute of material fact. Tatum cannot meet his burden to cite
the parts on the record on which he relies, FED. R. APP. P. 28(a)(8)(a), by asking us to
find support for him in nearly a hundred pages of material, see Jeffers v. Comm'r of
Internal Revenue, 992 F.3d 649, 653 (7th Cir. 2021).
Tatum next argues that the court was wrong to enter judgment for the
defendants on his state-law claims based on its determination that he failed to
demonstrate his compliance with Wisconsin’s notice-of-claim statute, WIS. STAT.
§ 893.80(1d) (requiring timely notice to the Milwaukee County Clerk). Tatum responds
that he gave notice. But county officials attested that they could not locate any notice.
Tatum produced no evidence in response, and he had the burden of proving that he
gave notice. See E-Z Roll Off, LLC v. County of Oneida, 800 N.W.2d 421, 427 (Wis. 2011).
Tatum’s last arguments about the third summary judgment decision—regarding
free-exercise claims and two excessive-force claims (one about an incident that caused
him a claustrophobic panic and the other about a guard’s use of pepper spray)—are
waived. The district court concluded that the defendants did not violate Tatum’s rights
in these instances and that, even if they did, they were entitled to qualified immunity
because they did not violate clearly established law. Tatum does not challenge the
No. 22-1069 Page 8
qualified-immunity rulings on appeal. When a district court provides two independent
grounds for a holding, an appellant’s failure to address one ground results in a waiver
with respect to the entire issue. Maher v. City of Chicago, 547 F.3d 817, 821 (7th Cir. 2008).
B.
Tatum next challenges various discretionary decisions, unrelated to the summary
judgment motions, that Judge Adelman made in 2019 and 2020.
1.
Tatum first takes issue with the court’s decision to sever the claims that survived
the final motion for summary judgment. He says the claims were properly joined under
28 U.S.C. § 1367(a). But § 1367(a) allows a district court to exercise subject-matter
jurisdiction over state-law claims that are related to federal claims. The question here is
whether Tatum’s remaining federal claims were related to each other. In answering that
question, we ask whether those claims were “discrete and separate.” Gaffney v. Riverboat
Servs. of Ind., Inc., 451 F.3d 424, 442 (7th Cir. 2006). Severance was proper because the
claims involved entirely different incidents and defendants—the first involved an
inability to call witnesses at hearings, the second involved the use of a “restraint bed,”
the third concerned the use of a “restraint belt,” and the last asserted improper use of
force during an elevator ride. See Gaffney, 451 F.3d at 442.
Tatum alternatively contends that, to the extent severance was permissible, the
court should have granted his motion to reconsider keeping the due-process claims in
this case. The court allowed Tatum to pick which of his claims would stay in this case
(and be tried first), but because Tatum did not select a claim in his response, the court
chose (apparently at random). Tatum later moved for reconsideration and provided a
purported missing page to show he had selected a different claim. But by the time he
did so, the claims had already been severed. The court did not abuse its discretion by
avoiding yet another delay in a litigation that had already taken eight years.
2.
Next, Tatum argues that the district court again violated the law of the case—this
time by requiring him to cover the cost of subpoenaing witnesses after Judge Randa had
ruled that the court would pay that cost. But, as Judge Adelman correctly concluded,
we have said that district courts lack statutory authority to pay subpoena costs for a
No. 22-1069 Page 9
litigant proceeding in forma pauperis. See Marozsan v. United States, 90 F.3d 1284, 1290–
91 (7th Cir. 1996). Thus, nothing stopped Judge Adelman from revisiting this issue.
See Gilbert, 591 F.3d at 902.
3.
Tatum next argues that admissions by two defendants—sheriff’s deputies
Carlson and Elliot—should have prevented Sheriff Lucas from giving contrary
testimony at trial. See FED. R. CIV. P. 36. Sheriff Lucas was named in his official capacity
for the purpose of Tatum’s Monell claim against the county. Carlson and Elliot admitted
that the jail had a policy of disallowing witnesses in disciplinary hearings. Tatum
wanted to use this admission to prevent Lucas from denying the existence of such a
policy, and he cites common-law agency principles to contend that the statements of
Lucas’s employees bind him (really, the county). Agency law is beside the point.
Carlson and Elliot did not testify on behalf of the county under Rule 30(b)(6); they were
fact witnesses responding to a request for admissions under Rule 36, so they could bind
only themselves with their admissions. See Nelson v. City of Chicago, 810 F.3d 1061, 1074
n.6 (7th Cir. 2016). As the court concluded, the jury was free to weigh Lucas’s testimony
that the policy did not exist against the officers’ admissions to the contrary.
4.
Tatum further argues that the district court erred in denying his motion to “re-
add” the deputy inspector of the Sheriff’s Office and the former sheriff as defendants.
The court concluded that this motion was functionally a request for reconsideration of
summary judgment for these defendants—a motion Tatum had made twice before.
Because Tatum had not identified any manifest error of law or fact in the decisions, the
court denied the motion. See Burritt v. Ditlefsen, 807 F.3d 239, 252–53 (7th Cir. 2015).
Tatum does not attempt to untangle what place these defendants have in his claims and
does not engage with the court’s reasoning—in the underlying decision or the denials of
reconsideration—so his argument is waived. See Klein, 884 F.3d at 757.
5.
Tatum also argues that Judge Adelman should have recused himself because of
“a deep-seated favoritism or antagonism that would make fair judgment impossible.”
Liteky v. United States, 510 U.S. 540, 555 (1994). Tatum acknowledges that adverse
rulings alone almost never constitute a valid basis for recusal, but his examples are just
No. 22-1069 Page 10
that—plus his belief that the judge treated him “rudely.” Like adverse rulings,
“expressions of impatience, dissatisfaction, annoyance, and even anger” do not
establish bias. Id. at 555–56.
C.
Finally, Tatum contests several trial rulings, but he failed to order a trial
transcript, as required under Federal Rule of Appellate Procedure 10(b)(2). Tatum was
on notice that he had to order a transcript. We told him as much, see Dkt. 42, as did the
defendants in their brief. Because we cannot meaningfully review the merits of Tatum’s
trial-related arguments without the transcript, the arguments are waived. See Morisch v.
United States, 653 F.3d 522, 529 (7th Cir. 2011).
We have considered Tatum’s other arguments, and none has merit.
AFFIRMED | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482851/ | Filed 11/9/22 In re J.G. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
In re J.G., a Person Coming Under the Juvenile
Court Law.
TULARE COUNTY HEALTH AND HUMAN F083729
SERVICES AGENCY,
(Super. Ct. No. JJV073560A)
Plaintiff and Respondent,
v. OPINION
JOHN G. et al.,
Defendants and Appellants.
THE COURT*
APPEAL from an order of the Superior Court of Tulare County. Glade F. Roper,
Judge. (Retired Judge of the Tulare Super. Ct. assigned by the Chief Justice pursuant to
art. VI, § 6 of the Cal. Const.)
Jacob I. Olson, under appointment by the Court of Appeal, for Defendant and
Appellant J.N.
John G., in pro per, for Defendant and Appellant John G.
No appearance for Plaintiff and Respondent.
-ooOoo-
* Before Levy, Acting P. J., Peña, J. and Smith, J.
Appellants John G. (father) and J.N. (mother) appeal from the juvenile court’s
December 30, 2021, order terminating their parental rights under Welfare and Institutions
Code section 366.261 to their then two-year-old son, J.G. Father appears in propria
persona and argues there was insufficient evidence to support the juvenile court’s
assumption of dependency jurisdiction. We conclude father is barred from challenging
the jurisdictional findings under section 366.26, subdivision (l) by failing to file an
extraordinary writ petition. (Cal. Rules of Court, rule 8.450(a).) Consequently, we
dismiss the appeal as to him.
Mother appeared through appellate counsel who informed this court he could find
no arguable issues to raise on mother’s behalf. This court granted mother leave to file a
letter establishing good cause to conclude an arguable issue of reversible error exists. (In
re Phoenix H. (2009) 47 Cal.4th 835, 844.) Mother filed a letter but failed to show that
any arguable issue arose from the termination hearing. Consequently, we dismiss the
appeal as to her as well.
PROCEDURAL AND FACTUAL SUMMARY
Dependency proceedings were initiated in Orange County in August 2020 when
then 10-month-old J.G. was admitted to the hospital after mother found him
unresponsive. He was severely malnourished because his parents withheld food from
him, causing permanent brain damage. The parents were arrested for felony child abuse.
Neither parent took responsibility for J.G.’s condition.
According to the paternal grandmother, father became “fanatical with food and
lost all hope with [W]estern medicine” after developing ulcerative colitis and suffering
complications from treatment. He had two older sons whom he subjected to extreme
nutritional deprivation, which was investigated by the Tulare County Health and Human
Services Agency (agency). Mother was submissive to his extreme nutritional beliefs.
1 Statutory references are to the Welfare and Institutions Code unless otherwise
noted.
2.
J.G. was placed with his paternal grandmother in Tulare County on October 13,
2020.
The Orange County Juvenile Court sustained allegations under section 300,
subdivisions (b) (failure to protect) and (e) (severe physical abuse) at the jurisdictional
hearing on April 23, 2021. At the dispositional hearing on May 27, 2021, the court
ordered J.G. removed from parental custody, denied the parents reunification services
(§ 361.5, subd. (b)(5) & (6)) and set a section 366.26 hearing for September 23, 2021.
The court ordered the case transferred to Tulare County.
Notices of intent to file an extraordinary writ were filed on the parents’ behalf in
the Superior Court of Orange County. (Cal. Rules of Court, rule 8.450(e).) However,
their attorneys did not file writ petitions in the appellate court.2
The Tulare County Juvenile Court accepted the case at a transfer hearing on
June 25, 2021. The parents appeared and elected to represent themselves. Father
informed the court he and mother had attorneys “forced” on them in Orange County.
Minor’s counsel informed the court the paternal grandmother had filed a lawsuit against
Tulare County. Minor’s counsel asked the court to continue the matter to determine
whether there was a conflict in accepting the case. The court advised county counsel to
place the matter on calendar if there was a conflict and confirmed the section 366.26
hearing.
2 On our own motion, we take judicial notice of the letter dated June 18, 2021, from
the Clerk/Executive Officer of the Court of Appeal for the Fourth Appellate District,
Division Three, advising the parties that the juvenile court record in Orange County
Superior Court case No. 20DP0969 was filed in the Court of Appeal under case
No. G060308 and that any petition for extraordinary writ was due for filing on or before
June 28, 2021. We also take judicial notice of the letters filed by father’s attorney on
June 25, 2021, withdrawing the writ petition, and by mother’s attorney on June 28, 2021,
advising the Court of Appeal he did not intend to file an extraordinary writ petition on her
behalf. (Evid. Code, §§ 452, subd. (d), 459.)
3.
In its report for the section 366.26 hearing, the agency recommended the juvenile
court terminate parental rights and free J.G. to be adopted by his paternal grandmother.
J.G. was medically monitored by specialists and was evaluated every three months for
seizures, spasticity and aspiration. The parents visited J.G. once a week for one hour via
video chat. During their visits, they reportedly read material to him such as “American
Declaration of the Rights and Duties of Man.”
Neither parent appeared at the section 366.26 hearing on September 23, 2021, and
the juvenile court’s attempt to contact them by telephone was unsuccessful. The paternal
grandmother stated the parents participated in the video chat visit the week before and
mother was aware of the hearing because she contacted the social worker about it. The
court found the parents had notice of the hearing and reasonable efforts were made to
contact them. The court terminated their parental rights and set a postpermanency plan
review hearing for March 17, 2022.
On October 7, 2021, the juvenile court set aside the order terminating parental
rights because the court clerk did not allow father to file a pleading, believing that it was
an ex parte communication. The court reset the hearing for December 16, 2021. The
agency’s recommendation remained unchanged. The hearing was continued to
December 30, 2021.
In the interim, father filed a motion to dismiss jurisdiction, which the juvenile
court denied at a hearing on December 16, 2021.
On December 30, 2021, the parents appeared and opposed the termination of their
parental rights by argument only. Mother disputed minor’s counsel’s statement that J.G.
was not bonded to her, questioning counsel’s qualifications to make that statement and
arguing she was not permitted to be a parent since J.G. was removed. Father challenged
the court’s jurisdiction, claiming J.G. was kidnapped and he and mother had not done
anything wrong. They were “rail roaded [sic]” and their rights were “trampled.” He
argued the allegations were hearsay and not validated by witnesses sworn under penalty
4.
of perjury, stating, “[a]nd as we have discovered there has been no jurisdiction proven on
the record to even allow this to take place, yet it’s still taking place.” He believed the
state was profiting off of the removal of his son, referring to J.G. as a “money bag to the
state.” Father denied that J.G. had permanent brain damage, claiming he had helped
“hundreds of people” return to health with the diet he and J.G. followed.
The juvenile court terminated parental rights, finding by clear and convincing
evidence J.G. was likely to be adopted and none of the exceptions to adoption applied.
The court set a post-permanency plan review hearing for June 23, 2022, and appointed
the paternal grandmother the prospective adoptive parent.
DISCUSSION
The juvenile court’s sole focus at a hearing under section 366.26 is the selection of
a permanent plan for the child. (In re Christopher M. (2003) 113 Cal.App.4th 155, 160.)
When, as here, the court finds the child is likely to be adopted and none of the exceptions
to adoption apply, the court has no choice but to terminate parental rights and select
adoption as the permanent plan for the child.
Neither parent challenges the juvenile court’s order terminating their parental
rights or any of the findings necessary to issue that order. Instead, they attempt as they
did throughout the proceedings below to overturn the jurisdictional findings.
Father contends “each of the [s]tate [a]ctors assigned to this case, had already
determined the outcome in advance, and were just going through the motions.” He
asserts there “was no due process, either by procedure or substantive rights,” and
attorneys were “forced” on him.
Mother contends she was denied due process because the court did not issue a
jurisdictional order, preventing her from appealing, and the minute order does not suffice.
She further contends she was denied reunification services because she did not admit
fault. She was simply following her attorney’s advice because she had an active criminal
case pending.
5.
Mother further contends her trial attorney in Orange County was ineffective
because, although he filed a notice of intent to file a writ petition, he did not file a writ
petition in the court of appeal because he did not believe there were grounds for appeal.
She asked him to file a petition anyway and let the appellate court decide. She concluded
he was working with the court to take her son away from her. He never represented her
but “was walking and holding [her] hand to the slaughter house [sic].”
We conclude the parents are procedurally barred from challenging the
jurisdictional findings because they did not file extraordinary writ petitions from the
juvenile court’s order setting the section 366.26 hearing. We further conclude mother
failed to establish her trial attorney was ineffective for failing to file a writ petition on her
behalf.
Appealability of the Jurisdictional Findings
Once a juvenile court sets a section 366.26 hearing and gives proper notice of the
writ remedy, it is incumbent upon a party, who wants to challenge the juvenile court’s
setting order, to file a timely petition for extraordinary writ review that substantively
addresses the specific issues to be challenged and supports the challenge by an adequate
record. (§ 366.26, subd. (l)(1)(A) & (B).) Failure to file a timely petition for
extraordinary writ review, to substantively address the specific issues challenged, or to
support that challenge by an adequate record precludes subsequent review by appeal of
the juvenile court’s findings and orders. (§ 366.26, subd. (l)(2).)
Section 366.26, subdivision (l) provides in relevant part: “(1) An order by the
court that a hearing pursuant to this section be held is not appealable at any time unless
all of the following apply: [¶] (A) A petition for extraordinary writ review was filed in a
timely manner. [¶] (B) The petition substantively addressed the specific issues to be
challenged and supported that challenge by an adequate record. [¶] (C) The petition for
extraordinary writ review was summarily denied or otherwise not decided on the merits.”
6.
Furthermore, section 366.26, subdivision (l)’s preclusion of appeal applies to all
orders made simultaneously with the order setting the section 366.26 hearing, regardless
of their nature. (In re Anthony B. (1999) 72 Cal.App.4th 1017, 1024.)
Here, the juvenile court adjudged J.G. a dependent child at the jurisdictional
hearing on April 23, 2021, based on true findings that J.G. suffered serious physical harm
as described under section 300, subdivision (b)(1) as a result of his parents’ failure to
provide him adequate food, and suffered severe physical abuse by his parents as
described under section 300, subdivision (c) because they withheld proper nourishment
from him, resulting in permanent brain damage and physical disability. However, the
court’s jurisdictional findings were not appealable pursuant to section 395 until May 27,
2021, when the disposition hearing was concluded and the section 366.26 hearing was
set. (In re Sheila B. (1993) 19 Cal.App.4th 187, 196.) Thus, the parents were required
under section 366.26, subdivision (l) to raise any jurisdictional issues by extraordinary
writ petition from the dispositional hearing, which neither the parents nor their trial
attorneys did. Consequently, they cannot now challenge the court’s exercise of its
jurisdiction on appeal from the December 30, 2021 order terminating their parental rights.
Ineffective Assistance of Counsel
In a dependency proceeding, the parents have a statutory and a due process right to
competent counsel. (§ 317.5; In re Meranda P. (1997) 56 Cal.App.4th 1143, 1151, fn. 3,
1153, fn. 6.) However, counsel is not obliged to undertake futile or frivolous actions on
behalf of a client. (Cf. People v. Constancio (1974) 42 Cal.App.3d 533, 546.)
To establish ineffective assistance of counsel in dependency proceedings, a parent
must establish both that his or her attorney’s representation was deficient and that this
deficiency resulted in prejudice. (In re Dennis H. (2001) 88 Cal.App.4th 94, 98.) To
prove deficient representation, an appellant must show that counsel’s deficiency involved
a crucial issue and “ ‘cannot be explained on the basis of any knowledgeable choice of
tactics.’ ” (People v. Loza (2012) 207 Cal.App.4th 332, 351.) Where, as here, “counsel’s
7.
trial tactics or strategic reasons for challenged decisions do not appear on the record, we
will not find ineffective assistance of counsel on appeal unless there could be no
conceivable reason for counsel’s acts or omissions.” (People v. Weaver (2001) 26
Cal.4th 876, 926.)
Here, the juvenile court found the parents withheld proper nourishment from J.G.,
resulting in permanent brain damage and physical disability. Evidence that the parents’
conduct caused J.G.’s permanent brain damage and disability is uncontroverted and far
exceeds the required proof by a preponderance of the evidence to support the findings.
Given the overwhelming evidence supporting the juvenile court’s jurisdictional
findings, mother’s trial counsel was under no obligation to challenge them on appeal.
Therefore, mother’s claim trial counsel was ineffective in not filing a writ petition is
meritless.
DISPOSITION
The appeal is dismissed.
8. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489063/ | FINDS OF FACT AND CONCLUSIONS OF LAW
SIDNEY M. WEAVER, Bankruptcy Judge.
THIS CAUSE having come on to be heard upon an Adversary Complaint filed by Jeanette E. Tavormina, Trustee of the Debtor estate, Natural Interiors, Inc.; the Court having heard testimony and examined the evidence presented, observed the candor and demeanor of the witnesses, considered the pleadings and arguments of counsel, and being otherwise fully advised in the premises, does hereby make the following Findings of Fact and Conclusions of Law.
The Trustee has filed an Adversary Complaint seeking to collect accounts receivable of the Debtor which are money or property of the estate.
Most of the material facts are either undisputed or not the subject of serious contention. Prior to instituting proceedings under Chapter 7 of the Bankruptcy Code, Natural Interiors, Inc., (“Debtor”) owned and operated a furniture manufacture and supply business. During the course of its operation, the Debtor and the Defendant herein, Southeastern Florida Properties, Inc. (“Southeastern”) entered into a written contract on April 2, 1980, in the sum of $24,920.00, less a 10% discount for a total sum of $23,429.12, regarding purchase by and delivery to Southeastern of wooden moldings for a construction project known as “Olympus”, (Plaintiff’s Exhibit 1).
The written contract was subsequently followed up with a purchase order from Southeastern to the Debtor signed by the “purchasing agent for Southeastern” (Plaintiff’s Exhibit 2).
*315The Debtor did not manufacture the specific molding required by Southeastern. Debtor, therefore, in a transaction separate and apart from its contract with Southeastern, ordered the molding on open account from a company operating in New York known as Old World Moulding and Finishing, Inc. (“Old World”). The apparent terms of the sale by Old World to the Debtor were list price less 30% discount for a total of $16,954.00.
The contract between the Debtor and Southeastern entailed purchase and delivery of two parcels of moldings. On May 17, 1980, the first parcel of moldings were delivered by the Debtor to Southeastern on the Olympus project job site as is evidenced by signed shipping order (Plaintiff’s Exhibit 3).
No payment was made by Southeastern for the goods. The goods received in the first delivery had an estimated value of $4,000.00, according to testimony by witness for Southeastern.
The source of the controversy between the Debtor and Southeastern arose during delivery of the second installment of molding. On May 19, 1980, Old World attempted to deliver moldings to the Debtor. A bill for freight charges was presented to the Debtor in the sum of $1,350.00 (Defendant’s Exhibit B), which the Debtor was unable to satisfy.
The shipper then made demand upon Southeastern for payment, whereupon the charge was paid by Southeastern.
Thereafter on May 30, 1980, Southeastern received a letter from Old World requesting $16,954.00. The Court finds that payment was made by Southeastern directly to Old World. No payment was made by Southeastern to the Debtor for goods received in installment one or two.
On June 23, 1980, the Debtor filed a Chapter 7 Petition wherein it listed the sum of $10,429.12 as a liquidated debt owing the Debtor.
The Plaintiff-Trustee, in assuming the position of the Debtor, argues that if payment had been made to the Debtor for the first installment of the contract, there would have been available funds to pay the freight charges on the second installment and thereafter pay the supplier.
The Defendant, Southeastern, argues that the breach by the Debtor to deliver goods in the second installment gave rise to a cancellation of the entire contract whereby the Defendant could seek to purchase the goods at a cheaper price by direct dealing with the supplier.
Based upon all the evidence, the Court so finds that the initial installment of the contract was fully and satisfactorily performed. In Florida it has been held in the Supreme Court case of Moon v. Wilson, 100 Fla. 791, 130 So. 25 (1930) that, “If the contract price of the building is to be paid by installments on completion of certain specified portions of the work, each installment becomes a debt due the builder as the particular portion specified is completed;
The rule that a party who has failed to fully perform his contract cannot recover on the contract for part performance, applies only to indivisible and not severable contracts (17 Am.Jur.2d Contracts, Parag. 386).
This Court finds that the contract entered into by the Debtor and the Defendant was severable and as such does not preclude recovery on that portion fully performed. “. .. There may be recovery on a contract for part performance of a divisible contract. Furthermore, the rights to such recovery are not barred by subsequent breach by the Plaintiff or an abandonment of the contract.” (Id. at para. 386).
It is well settled that where services are rendered or materials furnished by one for another, the law presumes that such goods and services are given and received in the expectation of being paid for and imply a promise to pay what they are reasonably worth. Symon v. J. Rolfe Davis, Inc., 245 So.2d 278 (1971 Fla.App. 4th District). This principal is well established in the law and prevents unjust enrichment of one party at the expense of the other.
*316Hence Defendant’s obligations to pay the Debtor the reasonable value of the goods received and the services performed by the Debtor in obtaining the goods in the first phase of the contract were not extinguished. Accordingly, the Court finds that the Defendant is obligated to the Trustee for the sum of $4,800.00 representing the value of the goods and a 20% profit on goods sold as is contemplated in the contract between the Debtor and its supplier and the contract between the Debtor and the Defendant.
The Court further finds that the Debtor failed to perform under the terms and conditions as to the second installment of the contract.
It has been held by several courts in Florida that where a contract is violated by one of the parties thereto, the other party is released from the obligations which he had assumed under the contract (11 Fla.Jur.2d, ‘Contracts’, parag. 169).
Plaintiff is not, therefore, entitled to recover the full contract price due to the failure to complete delivery of the goods required in the second installment of the contract. A party to the contract cannot take advantage of his own wrong doing to avail himself of the non-performance which he has caused (11 Fla.Jur.2d, ‘Contracts’, parag. 211). Therefore, Plaintiff’s claim for the collection of the accounts receivable in the full sum of $10,429.12 is denied.
In summary, considering the evidence presented by the record in this cause in light of the applicable legal principals, the Court finds as a matter of fact and concludes as a matter of law that there is a debt due the Trustee by Southeastern Florida Properties, Inc. in the amount of $4,800.00.
Defendant’s counterclaim for damages caused by the Debtor is denied.
A Judgment shall be entered for the Trustee in accordance with the findings expressed herein. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489066/ | MEMORANDUM OPINION
EMIL F. GOLDHABER, Bankruptcy Judge:
We are confronted by the constitutional issue of whether a judicial lien which arose prior to the enactment date of the Bankruptcy Code (“the Code”) may be avoided by the debtors pursuant to § 522(f) of the Code. We conclude that § 522(f) is constitutional as applied to the lien herein and the debtors may, therefore, avoid it pursuant to that section.
The facts of the instant case are as follows: 1 In June of 1978 the Industrial Valley Bank and Trust Company (“IVB”) obtained a judgment against David and Carol Marley (“the debtors”) in the amount of $5,953.68 which has been reduced to $1,238.20 (plus interest at the rate of 6% per annum). The recording of that judgment effected a lien on the real property located at 5824 N. 13th Street, Philadelphia, Pennsylvania, which is owned by the debtors and used by them as a residence.
On October 16, 1980, the debtors filed a petition for relief under chapter 7 of the Code and claimed as exempt under § 522(d)(1)2 their equity in the above property. On that date the property was worth $17,000.00 and the balance on the first mortgage was $12,126.57. On April 21, 1981, the debtors filed the instant complaint seeking to avoid the above judgment lien held by IVB. IVB answered the complaint admitting the above and asserting, in defense, that § 522(f) could not be applied retroactively to its lien which was created prior to the enactment date of the Code (November 6, 1978).
We conclude that the instant case is governed by our decision in In re Paden, 10 B.R. 206 (Bkrtcy. E.D. Pa. 1981) in which we held that § 522(f) did apply to liens created prior to the enactment date of the Code and that as so applied that section was constitutional. Consequently, we will grant the debtors the relief requested in their complaint and order that the lien of IVB is avoided.
. This opinion constitutes the findings of fact and conclusions of law required by Rule 752 of the Rules of Bankruptcy Procedure.
. Section 522(d)(1) permits a debtor to exempt up to $7,500 of his interest in real property. Section 522(m) entitles each debtor in a joint case to his exemptions under that section. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489081/ | ORDER OVERRULING TRUSTEE’S OBJECTION TO DEBTOR’S CLAIMED EXEMPTIONS
THOMAS C. BRITTON, Bankruptcy Judge.
The trustee has objected to the debtor’s claim of exemption. (C.P. No. 6). The matter was heard on July 7, 1981.
The debtor, a widow, has claimed an exemption in $953 of personal property. Article X, § 4(a)(2) of the Florida Constitution entities the “head of a family” to claim an exemption in personal property up to the value of $1,000. Section 222.19(2), Florida Statutes, specifically provides that a surviving spouse has the status of head of a family. The issue presented is whether this *99Statute in conferring the head-of-family status on this debtor operates to exempt the personal property in question from the claims of her creditors. Section 222.19(2), Florida Statutes provides:
“The head-of-family status required to qualify the owner’s property for homestead exemption, permitting such property to be exempt from forced sale under process of any court as set forth in s. 4, Art. X of the State Constitution, shall inure to the benefit of the surviving tenant by the entirety or spouse of the owner.”
The trustee has argued that while this Statute operates to protect the property in question from satisfying the debts of the deceased husband, it does not shield the property from claims incurred by the debtor after the death of her spouse.
I disagree. There is no limitation in the language of the Statute which would so restrict the head-of-family status thereby conferred. As expressly declared by the Legislature, the intent is “ . . . to shelter the family and surviving spouse and such purpose should be carried out in a liberal spirit and in favor of those entitled to the exemption.” § 222.19(1), Florida Statutes.
Accordingly, it follows that the debtor is entitled to the exemptions claimed and the trustee’s objection is overruled. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490278/ | MEMORANDUM OF DECISION
GEORGE S. WRIGHT, Chief Judge.
This matter is before the Court after the debtors have sold certain real estate known as the “Curry School Property”, free and clear of liens and encumbrances with said liens and encumbrances to attach to the proceeds of the said sale. The debtor filed a REPORT OF SALE with the Court on December 6, 1984 which was approved by the Court on December 12, 1984. This sale generated proceeds in the amount of eighty-five thousand and no/100 ($85,-000.00) dollars. This dispute, between First National Bank of Jasper (hereinafter called “First National”) and National Refining Company, (hereinafter called “National Refining”), holders of secured claims, centers upon the disbursement of proceeds of the sale which remain after this Court’s order of May 9, 1985 disbursing $60,784.60 and $17.90 each day thereafter to the first mortgagee First National. This memorandum shall constitute the findings of fact and conclusions of law pursuant to Rule 7052 of the Federal Rules of Bankruptcy Procedure.
FINDINGS OF FACT
Prior to March, 1979, Mr. Bennett operated a store under the name of Bennett’s Bait & Tackle on one of three parcels which make up the “Curry School Property.” Mr. Bennett financed his inventory of boats under a floor plan agreement with First National. In order to consolidate his various debts, Mr. Bennett borrowed $54,-239.35 from First National. In consideration for this loan, First National was assigned a mortgage on the boat store property which had been executed in favor of the Central Bank of Walker County in the face amount of $25,000 (hereinafter called “the Central Bank mortgage”) and a mortgage in the face amount of $50,539.62 on the boat store property and the two other parcels (hereinafter called the “1141 mortgage”).1
The 1141 mortgage contained the following consideration and defeasance clauses:
To SECURE to Lender (a) the repayment of the indebtedness evidenced by the Note, with interest thereon, the payment of all other sums, with interest thereon, advanced in accordance herewith to protect the security of this Mortgage, and the performance of the covenants and agreements of Borrower herein contained, and (b) the repayment of any future advances, with interest thereon, made to Borrower by Lender pursuant to paragraph 21 herein (herein “Future Advances”), Borrower does hereby grant and convey to Lender and Lender’s successors and assigns, with power of sale, the following described property located in the County of Walker, State of Alabama:
22. Release. Upon payment of all sums secured by this Mortgage, this Mortgage shall become null and void, and Lender shall release this Mortgage, without charge to Borrower. Borrower shall pay all costs of recordation, if any.
The 1141 mortgage also contained the following clause regarding future advances:
21. Future Advances. Upon request of Borrower, Lender, at Lender’s option pri- or to release of this Mortgage, may make Future Advances to Borrower. Such Future Advances, with interest thereon, shall be secured by this Mortgage when evidenced by promissory notes stating that said notes are secured hereby.
The Central Bank mortgage contained the following similar consideration and de-. feasance clauses:
KNOW ALL MEN BY THESE PRESENTS, That C. Marshall Bennett and Faye Bennett (hereinafter called the *50Mortgagor) for and in consideration of Mortgagor’s indebtedness unto the Central Bank of Walker County, (hereinafter called the Mortgagee) in the sum of Twenty five thousand and no/100 Dollars as evidenced by Mortgagor’s note of even date, the final installment of which matures March, 1981, and in order to secure the payment thereof (including any late charges in connection therewith) and of any other obligation of the Mortgagor to the Mortgagee, due or to become due, now existing or hereafter contracted as maker, endorser, guarantor, surety, conditional vendee or otherwise, including but not limited to obligations arising by use of Master Charge credit cards, overdrafts, secured and unsecured installment loans or purchases whether made directly from mortgagee or from an immediate or remote assignor of mortgagee, all of which obligations are hereinafter referred to as “said indebtedness”, do hereby grant, bargain, sell and convey unto the said Mortgagee the following described property situated in Jasper, Walker County, Alabama, to-wit:
This conveyance is a mortgage, and upon the payment of said indebtedness with the interest thereon, the same is to be void.
The Central Bank mortgage did not contain a provision similar to paragraph 21 of the 1141 mortgage which required specific reference to the mortgage if future advances were to be secured thereby.
At the time of this March 6, 1979 transaction, the Bennetts were in default on their floor plan financing agreement and First National was in the process of liquidating the inventory. Mr. David O’Mary, Loan Officer with First National, testified that no part of the floor plan deficiency was included in the March, 1979 transaction. Mr. O’Mary testified that this was because the bank could not ascertain the extent of the deficiency until the liquidation of the inventory was completed. Mr. Bennett also testified that the floor plan deficiency was to be kept completely separate from the March 6, 1979 transaction. Mr. O’Mary, however, testified that First National understood that the floor plan deficiency would be secured by the 1141 mortgage.
Sometime after the liquidation of the boat inventory, Mr. Bennett executed a note in favor of First National evidencing the floor plan deficiency indebtedness in the amount of $16,441.62. This note, which was executed on May 4, 1981, made no reference to the 1141 mortgage as required by paragraph 21 of that mortgage for that future advance to be secured by the real estate. When asked on cross-examination why this May 4, 1981 note made no reference to the 1141 mortgage when it was supposedly the bank’s intention that the floor plan deficiency, when determined, was to be secured by the 1141 mortgage, Mr. O’Mary testified that it was an “oversight.”
This May 4, 1981 note was refinanced by a note which was executed by the debtors on August 2, 1983 in favor of First National in the face amount of $15,471.70. This note refinancing the floor plan deficiency specifically states that it is secured by the “Real Estate Mortgage dated March 6, 1979”. '
The Bennetts also became indebted to National Refining for gasoline and other petroleum products used by the debtors in their business. Unbeknownst to First National, the Bennetts on November 24, 1982 executed a promissory note and a second mortgage on the “Curry School Property” in favor of National Refining in the face amount of $16,567.08.
First National contends that the August 2, 1983 refinancing of the floor plan deficiency is secured by the real estate under both the 1141 mortgage and the Central Bank mortgage by the “dragnet clauses” contained in both mortgages. National Refining, however, advances several arguments in support of its contention that its second-mortgage indebtedness takes priority over the floor plan indebtedness. National Refining contends: (1) that the *51“dragnet clause” in the 1141 mortgage is mvalid since it is ambiguous and does not express a clear and explicit intent that the mortgage will secure other indebtedness; (2) that First National cannot rely upon the Central Bank mortgage because the dragnet clause contained therein is likewise invalid and because this mortgage became “merged” into the 1141 mortgage since the assignment was part of the consideration for the 1141 mortgage; and (3) that the floor plan deficiency notes are not “future advances” since no new monies were extended and since no evidence was introduced to suggest that the Bennetts requested the extension of credit pursuant to paragraph 21 of the 1141 mortgage.
CONCLUSIONS OF LAW AND APPLICATION TO FACTS
Whether other debts between the same parties are secured under a “dragnet clause” depends upon the intention of the parties, Malkove v. First Nat’l Bank, 295 Ala. 191, 195, 326 So.2d 108, 111 (1976), at the time of the execution of the mortgage. See First Nat’l Bank v. Cotton, 231 Ala. 288, 164 So. 371 (1936). The “dragnet clause” must evidence a clear and explicit intent for the real estate to secure future advances. In re Bonner, 43 B.R. 261, 262 (Bktcy.N.D.Ala.1984); Underwood v. Jarvis, 358 So.2d 731, 735 (Ala.1978). This is especially true when a debtor owes several notes and gives a mortgage expressly securing one; any intention to cover other existing notes should be quite clear and explicit to say the least. First Nat’l Bank v. Bain, 237 Ala. 580, 583, 188 So. 64, 67 (1939).
The Court concludes that the “dragnet clauses” in both the Central Bank mortgage and in the 1141 mortgage fail to clearly and explicitly manifest the parties’ intention that the real estate would secure future advances. While both of the consideration clauses provide for future advances, the defeasance clauses make no reference to future advances. The consideration clause and the defeasance clause of each mortgage must be construed together, and the defeasance clause must clearly identify the terms and conditions upon which the mortgage would cease being security. In re Bonner, 43 B.R., 261, 263 (Bkrtcy.N.D.Ala.1984) Underwood v. Jarvis, 358 So.2d 731, 735 (Ala.1978). Because the defeasance clauses in the mortgages which are under consideration in the instant case fail to make any reference whatsoever to future advances, the Court finds the “dragnet clauses” are ambiguous and thus fail to meet the above-stated test of validity. See Underwood v. Jarvis, 358 So.2d 731, 735 (Ala.1978) (defeasance clause: “If said note paid in full....”); Malkove v. First Nat’l Bank, 295 Ala. 191, 326 So.2d 108 (1976) (defeasance clause: “If ... pay the ... $3,500....”). This ambiguous language must be construed against the drafting party. In re Bonner, 43 B.R. 261, 263 (Bkrtcy.N.D.Ala.1984); Jehle-Slauson Const. Co. v. Hood-Rich, Architects and Consulting Engineers, 435 So.2d 716, 720 (Ala.1983). The Court, therefore, concludes that the indebtedness for the floor plan deficiency which was evidenced by the notes which were executed by the debtors2 on May 4, 1981 and August 2, 1983 is not secured by either the 1141 mortgage nor by the Central Bank mortgage.
The 1141 mortgage is deficient in another respect. The defeasance clause provides that the mortgage will cease to be security “upon payment of all sums”, but the inart-fully drafted consideration clause uses the word “sums” only with reference to the expenses incurred for the protection of the collateral. Thus, this is yet another ambiguity in the 1141 mortgage.
The Court’s conclusion is supported by several factors. First, the Court notes that the May 4, 1981 note for the floor plan deficiency makes no reference to the 1141 mortgage as required by paragraph 21 of *52that mortgage. Thus, even if the dragnet clause in the 1141 mortgage had met the test for validity which has been set out in the cases which were discussed above, this note would not be secured by the 1141 mortgage by its own terms. While the August 2, 1983 note does make specific reference to the 1141 mortgage in accordance with paragraph 21 of the said mortgage, this reference appears to the Court to be an after-thought; and the failure to refer to the 1141 mortgage in the May 4, 1981 note is evidence that the parties did not intend the 1141 mortgage to secure the floor plan deficiency when the 1141 mortgage was executed on March 6, 1979. As was stated in the Malkove case, “If the parties had intended the [1979] mortgage to include other loans, it would have been a simple matter to draft their intent in it.” Malkove v. First Nat’l Bank, 295 Ala. 191, 195, 326 So.2d 108, 111 (1976).3
Further, both Mr. Bennett and Mr. O’Mary testified that the floor plan indebtedness was to be kept separate from the March 6, 1979 transaction. Mr. O’Mary’s stating that the failure to refer to the 1141 mortgage in the May 4, 1981 note evidencing the floor plan deficiency was an “oversight” does not sufficiently explain the omission; and the Court is not, therefore, persuaded that the inclusion of the floor plan deficiency depended upon the ascertainment of the amount of the deficiency pending the completion of the liquidation of the boat inventory.4
Because the Court has concluded that the indebtedness for the floor plan deficiency is not secured because the dragnet clauses in both the 1141 and Central Bank mortgages are invalid, the Court need not address the other contentions of National Refining. A separate order consistent with this opinion will be entered.
. The 1141 mortgage was recorded in the Probate Office in Volume 1141 at page 652.
. The May 4, 1981 note was executed only by C. Marshall Bennett. Both Mr. and Mrs. Bennett executed the August 2, 1983 note.
. The Court notes that its position on this point might be different had the dragnet clauses in both mortgages been in valid form; but since the Court has already determined both dragnet clauses to be deficient, any comment on this postulated situation would be obiter dicta.
. Such evidence is not excluded by the parol evidence rule where the Court determines the writing to be ambiguous. See Johnson v. Johnson Chevrolet, Inc., 633 F.2d 716 (5th Cir.1980) (Unit B). | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482858/ | Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 22-BG-672
IN RE JASON WAYNE SHOEMAKER,
DDN2020-D194
An Administratively Suspended Member of the
Bar of the District of Columbia Court of Appeals
Bar Registration No. 489748
BEFORE: Deahl and AliKhan, Associate Judges, and Washington, Senior Judge.
ORDER
(FILED—November 10, 2022)
On consideration of the certified order from the state of Maryland disbarring
respondent from the practice of law by consent; this court’s September 2, 2022, order
suspending respondent pending final disposition of this proceeding and directing
him to show cause why reciprocal discipline should not be imposed; and the
statement of Disciplinary Counsel; and it appearing that respondent has not filed a
response or his D.C. Bar R. XI, § 14(g) affidavit with this court, it is
ORDERED that Jason Wayne Shoemaker is hereby disbarred from the
practice of law in the District of Columbia. See In re Sibley, 990 A.2d 483, 487-88
(D.C. 2010) (explaining that there is a rebuttable presumption in favor of imposition
of identical discipline and exceptions to this presumption should be rare); In re
Fuller, 930 A.2d 194, 198 (D.C. 2007) (explaining that a rebuttable presumption of
identical reciprocal discipline applies to all cases in which the respondent does not
participate). It is
FURTHER ORDERED that, for purposes of reinstatement, respondent’s
disbarment will not begin to run until such time as he files an affidavit that fully
complies with the requirements of D.C. Bar R. XI, § 14(g).
PER CURIAM | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482855/ | Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
Court of any formal errors so that corrections may be made before the bound
volumes go to press.
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 22-BG-670
IN RE CELIO YOUNG
DDN2021-D070
A Member of the Bar of the
District of Columbia Court of Appeals
Bar Registration No. 421672
BEFORE: Deahl and AliKhan, Associate Judges, and Washington, Senior Judge.
ORDER
(FILED— November 10, 2020)
On consideration of the opinion and certified copy of the order from the state
of Maryland disbarring respondent from the practice of law; this court’s September
2, 2022, order suspending respondent pending resolution of this matter and directing
him to show cause why reciprocal discipline should not be imposed; and the
statement of Disciplinary Counsel; and it appearing that respondent has not filed a
response or his D.C. Bar R. XI, § 14(g) affidavit, it is
ORDERED that Celio Young is hereby disbarred from the practice of law in
the District of Columbia. See In re Sibley, 990 A.2d 483, 487-88 (D.C. 2010)
(explaining that there is a rebuttable presumption in favor of imposition of identical
discipline and exceptions to this presumption should be rare); In re Fuller, 930 A.2d
194, 198 (D.C. 2007) (stating that a rebuttable presumption of identical reciprocal
discipline applies unless one of the exceptions is established). It is
FURTHER ORDERED that, for purposes of reinstatement, respondent’s
disbarment will not begin to run until such time as he files an affidavit that fully
complies with the requirements of D.C. Bar R. XI, § 14(g).
PER CURIAM | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482866/ | IN THE SUPREME COURT OF IOWA
No. 22–0376
Submitted September 15, 2022—Filed November 10, 2022
IOWA SUPREME COURT ATTORNEY DISCIPLINARY BOARD,
Appellee,
vs.
BONNIE J. HEGGEN,
Appellant.
On appeal from the report of the Iowa Supreme Court Grievance
Commission.
In an attorney disciplinary action, the grievance commission recommends
a six-month suspension for the attorney’s violation of ethical rules. LICENSE
SUSPENDED.
McDonald, J., delivered the opinion of the court, in which all justices
joined.
David L. Brown of Hansen, McClintock & Riley, Des Moines, for appellant.
Alexis W. Grove, Des Moines, for appellee.
2
McDONALD, Justice.
The Iowa Supreme Court Attorney Disciplinary Board charged attorney
Bonnie Heggen with violating multiple rules of professional conduct related to
the management of her client trust account and a retainer paid by a client. A
division of the Iowa Supreme Court Grievance Commission found Heggen
violated several rules of professional conduct but found the Board failed to prove
Heggen violated several others, including Iowa Rules of Professional Conduct
32:1.5(a) (prohibiting an attorney from charging or collecting an unreasonable
fee) and 32:8.4(b) (prohibiting an attorney from committing a criminal act “that
reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer
in other respects”). The commission recommended suspending Heggen’s license
for six months. Heggen filed this appeal. She challenges only the commission’s
recommended sanction. The Board cross-appealed the commission’s
recommendation. The Board argues Heggen converted client funds, in violation
of Iowa Rules of Professional Conduct 32:1.5(a) and 32:8.4(b), and the
appropriate sanction should be the revocation of Heggen’s license to practice law.
I.
This court reviews attorney disciplinary proceedings de novo. Iowa Sup.
Ct. Att’y Disciplinary Bd. v. Kozlik, 943 N.W.2d 589, 594 (Iowa 2020). The Board
must prove each alleged ethical violation by a convincing preponderance of the
evidence. Iowa Sup. Ct. Att’y Disciplinary Bd. v. Rhinehart, 953 N.W.2d 156, 162
(Iowa 2021). “A convincing preponderance of the evidence lies between the
preponderance-of-the-evidence standard in a civil case and the
3
reasonable-doubt standard in a criminal case.” Iowa Sup. Ct. Att’y Disciplinary
Bd. v. Noyes, 936 N.W.2d 440, 442 (Iowa 2019).
II.
Heggen was admitted to practice law in 2004. During the period relevant
to this matter, Heggen worked as a sole practitioner. A focus of Heggen’s practice
was special education law. She assisted families and students in securing special
education services as required by federal and state law. The attorney–client
relationship at issue in this proceeding involves Heggen’s representation of a
family with a student who required special education services.
The first set of disciplinary charges at issue relate to Heggen’s
management, or more accurately, mismanagement of her client trust account.
In 2018, the Iowa Supreme Court Client Security Commission (CSC) audited
Heggen’s client trust account. CSC determined that Heggen had failed to
maintain a check register for her client trust account. It also determined she had
not performed or maintained records of the monthly triple reconciliations of her
client trust account. The auditor explained to Heggen the reconciliation process,
gave her a reconciliation worksheet, and explained the importance of proper
accounting.
The training did not take. In 2020, CSC conducted a second audit of
Heggen’s client trust account. The 2020 audit found Heggen violated multiple
client trust account rules. She failed to deposit funds into her client trust
account. She failed to maintain a receipts and disbursements journal. She failed
to maintain client ledger cards. She failed to retain records of electronic transfers
4
from her client trust account. She withdrew fees from her client trust account
before the fees were earned. She failed to notify clients in writing of withdrawals
from her client trust account. And she failed to perform monthly triple
reconciliations of her trust account. Despite Heggen’s ongoing failure to reconcile
her client trust account on a monthly basis, she filed annual statements with
CSC in which she represented that she had done so.
The second set of disciplinary charges against Heggen arise out of her
representation of Joann and Robert Burgett Jr. On January 10, 2020, the
Burgetts retained Heggen to represent them in a dispute with their local school
district. The Burgetts entered into a written attorney fee contract with Heggen.
The attorney fee contract provided the Burgetts were to pay $275 per hour for
all services performed. The attorney fee contract provided the Burgetts were to
pay a retainer of $3,000 plus an advance of $50 for expenses. The attorney fee
contract also contained an unusual provision that provided “[i]f attorney fee is
paid in full by district, Clients receive refund of retainer advanced in the amount
of $3000.00.”
On January 10, pursuant to the attorney fee contract, the Burgetts paid
Heggen the $3,000 retainer and the $50 advance for expenses. Heggen deposited
the funds into her client trust account the same day. She then withdrew the
funds prior to earning the fees or incurring the expenses. On the same day
Heggen deposited the funds, she withdrew $2,555.25 from her client trust
account. On January 16, Heggen withdrew another $475. Heggen did not notify
5
the Burgetts of these withdrawals. Heggen’s records show she did not perform
any billable work for the Burgetts until January 20.
Heggen’s representation of the Burgetts was successful. The Burgetts’
dispute with the district was resolved at a mediation occurring on May 22. The
Burgetts agreed to dismiss their complaint against the district and release all
their claims. The Burgetts received no financial consideration as part of the
agreement. In exchange for the dismissal and release, the district agreed to
provide the Burgetts’ son with all of the special education services requested.
The district also agreed to pay “attorney’s fees in the amount of $6765.00 to
Bonnie Heggen.” Because the district agreed to pay Heggen’s fees directly to
Heggen, the Burgetts were contractually entitled to receive a refund of $3,000
from Heggen after she was paid.
On May 24, two days after the successful mediation, Heggen wrote an
email to the Burgetts regarding the refund. Heggen stated she would refund the
$3,000 as soon as she received payment from the district’s insurer. Heggen said
the process usually took two to three weeks. Heggen received her payment from
the district’s insurer on or about June 3.
On July 1, Joann Burgett emailed Heggen about the refund. Heggen
replied the same day, stating, “I should have it for you by the 15th.” Heggen did
not disclose to Joann that the district’s insurer had already paid Heggen. Heggen
did not refund the money by July 15.
On July 21, Robert Burgett Jr. telephoned Heggen and left her a voicemail
about the refund. Two days later, on July 23, Heggen called Joann and left a
6
voicemail. Heggen stated that she needed to speak “about the situation” and that
she had encountered a “huge problem” causing her to take “a little longer than
[she] expected to get everything . . . straightened around.” Heggen said the
Burgetts would receive payment in “another two to three weeks.” Heggen stated
the delay was caused by things “completely out of [her] control.” After receiving
the July 23 voicemail from Heggen, Joann called Heggen back. Heggen explained
the delay was due to unexpected personal expenses—she had spent her payment
on a hot water heater and an air conditioner.
Joann phoned Heggen again on August 5. During this call, Heggen stated
she would “try to get [the Burgetts] $2,000” but did not know when the Burgetts
would receive the remaining $1,000. Joann sent Heggen a follow-up email on
August 11. Joann requested the refund as “outlined in our said contract when
we hired you.” Heggen replied the same day and stated the following:
Joann, you cannot be paid with what I don’t have; you and I
are waiting for [the school district’s insurer] to cut me a check for
the fee they agreed to pay. There were outstanding issues that had
to be worked through on behalf of this client. I have a phone call
scheduled with opposing counsel at 3 o’clock today. We will finalize
the last issue and I will file the dismissal this afternoon. So the check
will be cut [in] two or three days. Unfortunately, I don’t control that
end. As soon as I have it, you will be reimbursed. Try to bear in mind
I am currently working on your case again now.
Joann replied to this email and expressed confusion about whether
Heggen had, in fact, already been paid by the school district. In response, Heggen
left Joann a voicemail stating that she had “spent money on things [she] had to
spend money on” and that the Burgetts would receive their money in “a few more
7
days.” Heggen stated she had requested the school district’s insurer “cut the
check ASAP.”
On August 26, Heggen paid the Burgetts their refund pursuant to the
parties’ written attorney fee contract.
The Board filed its complaint against Heggen in March 2021. The
commission held a two-day hearing in November. The commission found Heggen
violated Iowa Rules of Professional Conduct 32:1.15, subsections (a), (c), and (d),
and 32:8.4(c) as well as Iowa Court Rules 45.1; 45.2, subsections (2), (3)(a)(1),
(3)(a)(2), and (3)(a)(9); and 45.7, subsections (3) and (4). The commission found
the Board failed to prove violations of Iowa Rules of Professional Conduct
32:1.5(a) (unreasonable fee) and 32:8.4(b) (criminal act). The commission
recommended a six-month suspension of Heggen’s license to practice law.
III.
We first evaluate the charges against Heggen related to her
mismanagement and maladministration of her client trust account. We find
Heggen violated chapter 45, which sets forth the rules governing client trust
accounts. Specifically, we find Heggen violated Iowa Court Rules 45.1; 45.2,
subsections (2), (3)(a)(1), (3)(a)(2), and (3)(a)(9); and 45.7, subsections (3) and (4).
Heggen does not contest the violations, conceding her business practices were
“in disarray.” We thus see no need to discuss the alleged violations in any detail.
In short, a convincing preponderance of the evidence shows Heggen, among
other things, failed to maintain client ledger cards, failed to maintain a receipts
and disbursements journal, failed to deposit client funds in her client trust
8
account, failed to promptly deliver client funds to the Burgetts, failed to maintain
records related to her client trust account, failed to perform monthly triple
reconciliations, withdrew money from her client trust account before it was
earned, and failed to notify clients before making withdrawals from her client
trust account.
We also find Heggen violated rule 32:1.15(f), which states “[a]ll client trust
accounts shall be governed by chapter 45 of the Iowa Court Rules.” The
commission concluded rule 32:1.15(f) “is not an ethics rule which stands on its
own [but] is merely the provision which incorporates the client trust account
rules into the ethical standards.” We disagree. “[A] violation of an attorney’s
obligations under chapter 45 also constitutes a violation of rule 32:1.15(f).” Iowa
Sup. Ct. Att’y Disciplinary Bd. v. Eslick, 859 N.W.2d 198, 201 (Iowa 2015).
IV.
We next evaluate the disciplinary charges against Heggen arising out of
her representation of the Burgetts. The commission found Heggen violated rule
32:1.15, subsections (a), (c), and (d), as well as rule 32:8.4(c), but the commission
also found the Board failed to prove by a convincing preponderance of the
evidence that Heggen’s conduct violated rules 32:1.5(a) and 32:8.4(b). We
address the uncontested violations first and the contested violations second.
A.
The commission found Heggen violated rule 32:1.15, subsections (a), (c),
and (d). Heggen does not contest these violations. We agree the Board proved
these violations by a convincing preponderance of the evidence.
9
The evidence establishes Heggen violated rule 32:1.15(a). That provision
provides:
A lawyer shall hold property of clients or third persons that is in a
lawyer’s possession in connection with a representation separate
from the lawyer’s own property. Funds shall be kept in a separate
account. Other property shall be identified as such and
appropriately safeguarded. Complete records of such account funds
and other property shall be kept by the lawyer and shall be
preserved for a period of six years after termination of the
representation.
Iowa R. Prof’l Conduct 32:1.15(a). Heggen withdrew fees from her client trust
account prior to earning the fees. She did this on multiple occasions. Heggen
also intermingled client funds, firm funds, and personal funds, although perhaps
inadvertently due to failure to maintain proper accounting records.
The evidence also establishes that Heggen violated rule 32:1.15(c). That
rule provides, “A lawyer shall deposit into a client trust account legal fees and
expenses that have been paid in advance, to be withdrawn by the lawyer only as
fees are earned or expenses incurred.” Id. r. 32:1.15(c). Heggen violated this rule
when she withdrew fees from her client trust account before earned. See, e.g.,
Comm. on Prof’l Ethics & Conduct of the Iowa State Bar Ass’n v. O’Connor,
329 N.W.2d 1, 4 (Iowa 1983) (en banc).
A convincing preponderance of the evidence also shows Heggen violated
Iowa Rule of Professional Conduct 32:1.15(d), which provides:
Upon receiving funds or other property in which a client or third
person has an interest, a lawyer shall promptly notify the client or
third person. Except as stated in this rule or otherwise permitted by
law or by agreement with the client, a lawyer shall promptly deliver
to the client or third person any funds or other property that the
client or third person is entitled to receive and, upon request by the
10
client or third person, shall promptly render a full accounting
regarding such property.
Here, pursuant to the Burgetts’ settlement agreement with the district, the
district paid Heggen. Pursuant to the written attorney fee contract with the
Burgetts, “if” Heggen was “paid in full by district,” then Heggen was contractually
obligated to refund $3,000 to the Burgetts. Pursuant to rule 32:1.15(d), Heggen
was required to “promptly deliver” the contractual refund to the Burgetts. While
Heggen received payment from the district on June 3, she did not refund the
$3,000 until August 26. An almost-three-month delay in issuing a contractual
refund is not prompt. This is particularly true where, as here, the clients
repeatedly contacted the attorney to inquire about the delayed refund.
B.
We find Heggen violated Iowa Rule of Professional Conduct 32:8.4(c). This
rule provides it is misconduct for a lawyer to “engage in conduct involving
dishonesty, fraud, deceit, or misrepresentation.” Id. “[A]n attorney must act with
some level of scienter greater than negligence to violate rule 32:8.4(c).” Iowa Sup.
Ct. Att’y Disciplinary Bd. v. Parrish, 801 N.W.2d 580, 587 (Iowa 2011).
“An attorney’s ‘casual, reckless disregard for the truth’ also establishes sufficient
scienter to support a violation of the rule.” Iowa Sup. Ct. Att’y Disciplinary Bd. v.
Muhammad, 935 N.W.2d 24, 38 (Iowa 2019) (quoting Iowa Sup. Ct. Att’y
Disciplinary Bd. v. Clarity, 838 N.W.2d 648, 656 (Iowa 2013)).
Heggen violated the rule in multiple respects. She made
misrepresentations to CSC when she falsely stated on three annual reports that
she had completed monthly triple reconciliations of her client trust account when
11
she had not. See Iowa Sup. Ct. Att’y Disciplinary Bd. v. Vandel, 889 N.W.2d 659,
668–69 (Iowa 2017); Iowa Sup. Ct. Att’y Disciplinary Bd. v. Wengert, 790 N.W.2d
94, 100 (Iowa 2010).
Heggen also engaged in deceitful and dishonest conduct in her dealings
with the Burgetts after receiving payment from the district’s insurer. “When
dealing with a violation of rule 32:8.4(c), the key question we must answer is
whether the effect of the lawyer’s conduct is to mislead rather than to inform.”
Iowa Sup. Ct. Att’y Disciplinary Bd. v. Haskovec, 869 N.W.2d 554, 560
(Iowa 2015). Heggen made misleading statements and misrepresentations to the
Burgetts when they inquired about their contractual refund. In August, Heggen
sent Joann an email in which she stated “you and I are waiting for [the school
district’s insurer] to cut me a check for the fee they agreed to pay.” Later, in a
voicemail, Heggen stated she was trying to get the insurer to “cut the check
ASAP.” Both statements implied Heggen had not yet received her payment from
the district’s insurer. However, at the time Heggen made these statements, she
had already received her payment from the district’s insurer. Heggen clearly
acted with a level of scienter greater than negligence in violation of the rule.
See Parrish, 801 N.W.2d at 587.
C.
We now turn to the contested violations in the Board’s cross-appeal. The
Board contends that Heggen violated rule 32:1.5(a). The rule provides, “A lawyer
shall not make an agreement for, charge, or collect an unreasonable fee or an
12
unreasonable amount for expenses, or violate any restrictions imposed by law.”
Iowa R. Prof’l Conduct 32:1.5(a).
We have held that a lawyer in a probate matter who takes a fee prematurely
or without court authorization violates rule 32:1.5(a) because the collection of
the fee violates a restriction imposed by law, namely statutes and court rules
governing probate fees. See Iowa R. Prof’l Conduct 32:1.5(a), cmt. 1 (“A fee that
is otherwise reasonable may be subject to legal limitations, of which the lawyer
should be aware. For example, a lawyer must comply with restrictions imposed
by statute or court rule on the timing and amount of fees in probate.”);
Iowa Sup. Ct. Att’y Disciplinary Bd. v. Saunders, 919 N.W.2d 760, 763
(Iowa 2018) (stating lawyer’s premature collection of probate fee violated court
rule 7.2(4) and thus violated rule 32:1.5(a), and collecting cases); Iowa Sup. Ct.
Bd. of Prof’l Ethics & Conduct v. D’Angelo, 619 N.W.2d 333, 337 (Iowa 2000)
(en banc) (stating Iowa probate law prohibits taking early fee without court
approval and taking unapproved fee is illegal); 16 Gregory C. Sisk & Mark S.
Cady, Iowa Practice Series: Lawyer and Judicial Ethics § 5:5(b)(3), at 211 & n.1
(2019 ed. 2019) [hereinafter Sisk & Cady] (stating rule is applicable when lawyers
take probate fees prematurely, and citing cases).
Outside probate proceedings, we have also held a lawyer violates
rule 32:1.5(a) by retaining an unearned fee. See Iowa Sup. Ct. Att’y Disciplinary
Bd. v. O’Brien, 971 N.W.2d 584, 590 (Iowa 2022) (holding attorney violated
rule 32:1.5(a) when he took a retainer, filed a pleading, “just quit, wholly and
abruptly,” and “refused to return any of the retainer”); Sisk & Cady § 5:5(f)(1), at
13
224 (discussing rule 32:1:5(a) and stating the rule requires “any advance
payment for the performance of contemplated legal services is to be refunded if
the work is not performed”). This latter line of cases makes sense because
retention of an unearned fee is necessarily an “unreasonable fee.”
The Board contends that in all circumstances an attorney’s withdrawal of
fees prior to the time the fees have been earned, standing alone, violates
rule 32:1.5(a). In support of its argument, the Board relies on Iowa Supreme
Court Attorney Disciplinary Board v. Parrish, 801 N.W.2d 580. But Parrish does
not support the Board’s argument. Parrish involved an attorney’s handling of
fees in two separate client matters. 801 N.W.2d at 586. The first client paid the
attorney a $10,000 retainer for representation in a criminal case. Id. at 584. After
the termination of the representation, a fee arbitration committee found the
attorney had earned less than $2,000 in fees, but the attorney failed to refund
the remaining balance. Id. at 584–85. The second client fired the attorney and
requested a refund of the unused portion of a $5,000 retainer. Id. at 585. The
attorney failed to refund the unearned portion of the retainer to the client. Id. We
concluded the attorney collected an unreasonable fee in violation of the rule
because the attorney withdrew the entire advance and “then subsequently failed
to return the unearned portions.” Id. at 586. It was the lawyer’s retention of the
unearned fees that constituted an unreasonable fee and not the lawyer’s
premature withdrawal of fees subsequently earned.
With that understanding, we conclude the Board failed to prove Heggen
charged an “unreasonable fee” in violation of rule 32:1.5(a). It is not disputed
14
that Heggen withdrew nearly the entire retainer paid by the Burgetts before she
earned any fees, but it is also not disputed that Heggen subsequently earned the
fees and refunded $3,000 to the Burgetts after being paid by the district’s
insurer. After Heggen refunded the retainer, the Burgetts ended up paying only
$50. Generally speaking, an attorney’s withdrawal of a fee from a client trust
account prior to the time it is earned, standing alone, does not constitute a
violation of rule 32:1.5(a). See O’Brien, 971 N.W.2d at 590 (“Failing to refund
unearned fees violates this rule.”). As discussed above, rules 32:1.15(c) and 45.7
directly address an attorney’s early withdrawal of unearned fees and not incurred
expenses. There is no reason to conflate those rules with this separate rule.
D.
The Board also contends Heggen violated rule 32:8.4(b). The rule states
that it is professional misconduct for a lawyer to “commit a criminal act that
reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as a lawyer
in other respects.” Iowa R. Prof’l Cond. 32:8.4(b). “When assessing whether a
lawyer has violated rule 32:8.4(b), we consider ‘[t]he nature and circumstances
of the act . . . to determine if the commission of the criminal act reflects adversely
on the attorney’s fitness to practice law.’ ” Iowa Sup. Ct. Att’y Disciplinary Bd. v.
Aeilts, 974 N.W.2d 119, 125 (Iowa 2022) (alteration and omission in original)
(quoting Iowa Sup. Ct. Att’y Disciplinary Bd. v. Schmidt, 796 N.W.2d 33, 40
(Iowa 2011)). A formal criminal charge or conviction is not required to find a
violation under rule 32:8.4(b). Iowa Sup. Ct. Att’y Disciplinary Bd. v. Thomas,
844 N.W.2d 111, 116 (Iowa 2014). However, the Board must still establish by a
15
convincing preponderance of the evidence that the attorney committed “a
criminal act.”
The Board contends that Heggen committed theft, as defined in Iowa Code
section 714.1 (2020). As relevant here, Iowa Code section 714.1 provides:
A person commits theft when the person does any of the
following:
1. Takes possession or control of the property of another, or
property in the possession of another, with the intent to deprive the
other thereof.
2. Misappropriates property which the person has in trust, or
property of another which the person has in the person’s possession
or control, whether such possession or control is lawful or unlawful,
by using or disposing of it in a manner which is inconsistent with or
a denial of the trust or of the owner’s rights in such property, or
conceals found property, or appropriates such property to the
person’s own use, when the owner of such property is known to the
person.
The commission found the Board failed to prove Heggen committed the
criminal act of theft. Relying on section 714.1(1), the commission found Heggen
did not commit theft because she did not have the “intent to deprive” the Burgetts
of the retainer. The Board counters that this was error. Relying on
section 714.1(2), the Board contends Heggen misappropriated the Burgetts’
property. As the Board explains it:
By the time of mediation, Heggen had already paid herself $3000 of
those fees, meaning she was only entitled to an additional $3765.
The rest of it belonged to the Burgetts. When the check came from
the insurance company, Heggen took and used the entire $6765.
Although Heggen had only earned $6765 in fees, she paid herself a
total of $9765. Heggen paid herself her attorney fees twice, and in
so doing, she stole from the Burgetts.
16
Like the commission, we conclude on the unique facts and circumstances
of this case that the Board failed to meet its evidentiary burden in proving Heggen
committed the criminal act of theft. Iowa Code section 714.1(2) defines theft as
misappropriation of “property which the person has in trust, or property of
another which the person has in the person’s possession or control.” In attorney
disciplinary cases, “[w]e use the same definition of misappropriation as the
criminal act.” Iowa Sup. Ct. Att’y Disciplinary Bd. v. Suarez-Quilty, 912 N.W.2d
150, 158 (Iowa 2018). The theft statute requires proof the specific property
allegedly stolen—in this case, the check from the district and the proceeds
therefrom—was property of another either held in trust by the perpetrator or in
the possession or control of the perpetrator. See State v. Caslavka, 531 N.W.2d
102, 105 (Iowa 1995) (discussing theft by misappropriation); State v. Galbreath,
525 N.W.2d 424, 426–27 (Iowa 1994) (same).
The Board failed to prove by a convincing preponderance of the evidence
that Heggen misappropriated the Burgetts’ property. Here, Heggen and the
Burgetts entered into an unusual attorney fee contract. The Burgetts agreed to
pay a retainer of $3,000. The attorney fee contract then gave the Burgetts a right
to receive a refund in the amount of $3,000 “if attorney fee is paid in full by
district.” (Emphasis added.) The Burgetts’ right to receive payment was thus
contractual and contingent upon Heggen first being paid by the district. Heggen
successfully mediated the matter for the Burgetts. Like the attorney fee contract,
the settlement agreement was unusual. The settlement agreement provided no
financial consideration to the Burgetts. Pursuant to the terms of the settlement
17
agreement, the school district was to pay “the amount of $6,765.00 to Bonnie
Heggen.” (Emphasis added.)
Thus, when the insurer sent a check directly to Heggen, made payable to
Heggen, and for Heggen, she had legal title to and possession of the check as
well as the proceeds from the same. The Burgetts had no legal right to the check
or the proceeds that could support a claim of misappropriation of their property.
See e.g., Caslavka, 531 N.W.2d at 105 (reversing theft conviction and explaining
misappropriation); Galbreath, 525 N.W.2d at 427 (same); State v. Topic,
No. 13–0836, 2014 WL 3748206, at *2 (Iowa Ct. App. July 30, 2014) (reversing
theft conviction where $6,000 check at issue did not belong to alleged victim).
Indeed, if the district had failed to pay Heggen pursuant to the terms of the
settlement agreement, Heggen—and not the Burgetts—would have the right to
sue the district for the money owed Heggen. In short, under the unique facts and
circumstances of this case, involving both an unusual attorney fee contract and
an unusual settlement agreement, it was Heggen’s check, and it was Heggen’s
money.
Our conclusion in this case is in line with Larew v. Hope L. Firm, P.L.C.,
977 N.W.2d 47 (Iowa 2022). Larew involved a dispute over a contingent fee award
between a law firm and an attorney who was formerly of counsel at the law firm.
Id. at 51–52. The attorney alleged the firm committed conversion by placing the
disputed contingent fee in its business account rather than in a trust account.
Id. at 54–55. The firm countered that, per the of-counsel agreement between the
attorney and the firm, the fees earned by the attorney belonged to the firm. Id.
18
at 55. We rejected the attorney’s conversion claim since the right to recover a
portion of the contingent fee from the firm was contractual in nature. Id. at
62–63. As we stated, “[N]o conversion claim exists where the dispute arises solely
out of contractual obligations.” Id. at 63. While the attorney had a contractual
right to some amount of money as a result of representing the client and winning
the contingent fee, the attorney had no right to the specific money received by
the firm as a contingent fee. See id. at 61.
The Board points to other decisions of this court where we sanctioned
attorneys for misappropriating client funds, but those cases are distinguishable.
Each case involved a lawyer misappropriating what was undisputedly other
people’s property. See, e.g., Kozlik, 943 N.W.2d at 595–96 (concluding attorney
violated rule by paying himself funds of estate which were held in trust for estate
beneficiaries); Iowa Sup. Ct. Att’y Disciplinary Bd. v. Den Beste, 933 N.W.2d 251,
254 (Iowa 2019) (concluding attorney violated rule by retaining fees that
belonged to his law firm); Iowa Sup. Ct. Att’y Disciplinary Bd. v. Kowalke,
918 N.W.2d 158, 162 (Iowa 2018) (concluding attorney violated rule by paying
assets of estate to himself); Suarez-Quilty, 912 N.W.2d at 155 (holding attorney
improperly failed to return advance payment to client); Iowa Sup. Ct. Att’y
Disciplinary Bd. v. Guthrie, 901 N.W.2d 493, 498–99 (Iowa 2017) (holding
attorney misappropriated client funds by billing client for unperformed work);
Iowa Sup. Ct. Att’y Disciplinary Bd. v. Kelsen, 855 N.W.2d 175, 185 (Iowa 2014)
(revoking license where attorney converted $7,500 cost retainer paid by client);
Thomas, 844 N.W.2d at 117 (holding attorney misappropriated client’s
19
settlement money for his own purposes); Wengert, 790 N.W.2d at 100 (holding
attorney misappropriated client’s settlement funds intended to pay subrogation
obligation); Iowa Sup. Ct. Bd. of Prof’l Ethics & Conduct v. Bell, 650 N.W.2d 648,
655 (Iowa 2002) (finding attorney misappropriated funds by embezzling from
organization for which he acted as treasurer).
Our decision on the unique facts of this case does not call into question
our cases involving the conversion and theft of other people’s property. We simply
hold the Board failed to meet its evidentiary burden in proving Heggen engaged
in theft or conversion of her clients’ funds given the unique combination of
contractual arrangements presented here. The Board thus failed to prove Heggen
committed a criminal act in violation of rule 32:8.4(b).
E.
In sum, on our de novo review, we find and conclude Heggen violated Iowa
Rules of Professional Conduct 32:1.15, subsections (a), (c), (d), and (f), and
32:8.4(c) as well as Iowa Court Rules 45.1; 45.2, subsections (2), (3)(a)(1),
(3)(a)(2), and (3)(a)(9); and 45.7, subsections (3) and (4). The Board failed to prove
Heggen violated Iowa Rule of Professional Conduct 32:1.5(a) or 32:8.4(b).
V.
Having concluded Heggen violated several rules of professional conduct,
we now must consider the appropriate sanction. “There is no standard sanction
for a particular type of misconduct, and though prior cases can be instructive,
we ultimately determine an appropriate sanction based on the particular
circumstances of each case.” Iowa Sup. Ct. Att’y Disciplinary Bd. v. Earley,
20
729 N.W.2d 437, 443 (Iowa 2007). “We do, however, seek a degree of consistency
in our disciplinary cases with respect to sanctions.” Iowa Sup. Ct. Att’y
Disciplinary Bd. v. Taylor, 814 N.W.2d 259, 268 (Iowa 2012). “In determining an
appropriate sanction, we consider ‘the nature of the violations, the need for
deterrence, protection of the public, maintenance of the reputation of the Bar as
a whole, and the violator’s fitness to continue to practice law,’ as well as any
aggravating and mitigating circumstances.” Earley, 729 N.W.2d at 443
(quoting Iowa Sup. Ct. Bd. of Prof’l Ethics & Conduct v. Ramey, 639 N.W.2d 243,
245 (Iowa 2002)).
Heggen acknowledges some level of discipline is warranted and suggests a
public reprimand. There are some mitigating factors in this case. Heggen has no
disciplinary history. See, e.g., Iowa Sup. Ct. Att’y Disciplinary Bd. v. Kersenbrock,
821 N.W.2d 415, 422 (Iowa 2012). As the commission found, she “fully
cooperated with the Board’s investigation” and admitted “some of her
wrongdoing.” See Eslick, 859 N.W.2d at 202 (“[R]emorse and cooperation
generally mitigate our sanction.”). She also provides legal services to students
with special education needs, an underserved and vulnerable population.
See, e.g., Iowa Sup. Ct. Att’y Disciplinary Bd. v. Santiago, 869 N.W.2d 172, 182
(Iowa 2015) (noting as mitigating factor that attorney primarily represented
underserved immigrant community). Heggen hired a bookkeeper after the 2020
CSC audit to avoid trust account violations in the future, although she failed to
do so prior to that time because of the expense. See, e.g., Iowa Sup. Ct. Att’y
21
Disciplinary Bd. v. Arzberger, 887 N.W.2d 353, 369 (Iowa 2016) (stating
attorney’s implementation of “new office procedures” was mitigating factor).
Despite these mitigating factors, we conclude a more severe sanction is in
order. In Iowa Supreme Court Attorney Disciplinary Board v. Ricklefs, the attorney
was audited twice by CSC, with both audits revealing the attorney violated
numerous provisions of chapter 45. 844 N.W.2d 689, 692–93 (Iowa 2014). The
attorney made no meaningful effort to improve his practices after the first audit.
Id. at 694. The attorney was also commingling personal funds in his client trust
account in an apparent attempt to evade his creditors and misrepresented on
CSC forms that he was complying with trust accounting rules. Id. at 695.
Aggravating factors included the attorney’s attempts to stall the second audit,
failure to cooperate with the audit, and two prior public reprimands. Id. at 700.
Mitigating factors included the lack of any harm to clients and the attorney’s
taking responsibility for his misconduct. Id. We suspended the attorney’s license
for three months, noting particularly the attorney’s “complete failure to address
the problems noted in the [first] audit.” Id. at 702.
In Iowa Supreme Court Attorney Disciplinary Board v. Parrish, we
disciplined an attorney for trust account violations and for repeatedly
withdrawing unearned fees without contemporaneous notice, maintaining poor
billing records, and failing to return an unearned retainer even after the fee
dispute was submitted to arbitration. 801 N.W.2d at 586–87, 589. The attorney
had also been subject to six prior private admonitions for misconduct. Id. at 589.
22
We concluded a sixty-day suspension was appropriate under the circumstances.
Id. at 589–90.
In Iowa Supreme Court Attorney Disciplinary Board. v. Kieffer-Garrison, we
suspended an attorney’s license where, among other things, she neglected client
matters and made misrepresentations to the client. 847 N.W.2d 489, 496
(Iowa 2014). In Iowa Supreme Court Attorney Disciplinary Board v. Hamer, we
suspended an attorney’s license for six months where he “acted with deceit” with
respect to a client billing matter. 915 N.W.2d 302, 325–26 (Iowa 2018).
Generally, “[s]anctions for violations involving dishonesty have ranged from a
brief suspension of two months to revocation.” Kieffer-Garrison, 847 N.W.2d at
496 (citing cases).
After reviewing the relevant authorities, we conclude this case is most
comparable to Iowa Supreme Court Attorney Disciplinary Board v. Morris,
847 N.W.2d 428 (Iowa 2014). In that case, the attorney’s “record-keeping and
management deficits were severe and they persisted over a long period of time
even after [CSC] intervened with an audit and provided information that should
have facilitated compliance with the applicable rules.” Id. at 436. As in this case,
“Morris’s violations extend[ed] beyond mere failure to observe rudimentary trust
account record-keeping rules and mismanagement, however, as he engaged in
dishonesty in representing that he regularly reconciled his trust account as
required by a court rule.” Id. at 437. In addition, Morris deposited client
settlement funds into his trust account but failed to use the client’s funds to
23
satisfy a subrogation claim. See id. at 431 n.2. We concluded that a six-month
suspension was appropriate. Id. at 437.
As in Morris, there are several aggravating factors in this case. First,
Heggen violated multiple ethical rules. “Where there are multiple violations of
our disciplinary rules, enhanced sanctions may be imposed.” Iowa Sup. Ct. Bd.
of Prof’l Ethics & Conduct v. Alexander, 574 N.W.2d 322, 327 (Iowa 1998).
Heggen’s experience as an attorney, with more than fifteen years of practice
under her belt at the time of the conduct at issue, is another aggravating factor.
See, e.g., Iowa Sup. Ct. Att’y Disciplinary Bd. v. Wright, 758 N.W.2d 227, 231
(Iowa 2008). Harm to clients is an aggravating factor. In this case, Heggen
harmed the Burgetts by not promptly returning the $3,000 to which they were
contractually entitled, money the Burgetts needed to care for their children.
See, e.g., Iowa Sup. Ct. Att’y Disciplinary Bd. v. McCann, 712 N.W.2d 89, 97
(Iowa 2006). Heggen’s cavalier treatment of her client trust accounting
obligations and her failure to remediate the issues identified by CSC after the
2018 audit are additional aggravating factors. See Santiago, 869 N.W.2d at 184
(“We expect lawyers to learn from their mistakes, and their failure to take to
heart lessons learned through audits is an aggravating factor.”); Ricklefs, 844
N.W.2d at 700 (finding attorney’s continued disregard of trust account rules after
audit was aggravating factor for sanctions).
Balancing this conduct against Heggen’s clean disciplinary record and the
other mitigating factors, and being particularly mindful of “the nature of the
violations, the need for deterrence, protection of the public, [and] maintenance
24
of the reputation of the Bar as a whole,” we believe a six-month suspension of
Heggen’s license to practice law is appropriate. Ramey, 639 N.W.2d at 245. This
was the commission’s recommended sanction.
VI.
We suspend Heggen’s license to practice law with no possibility of
reinstatement for six months. Pursuant to Iowa Court Rule 34.23(1), Heggen’s
suspension will commence ten days from the date of this decision. This
suspension applies to all facets of the practice of law under Iowa Court
Rule 34.23(3). Heggen must comply with the notification requirements to her
clients in Iowa Court Rule 34.24. At the conclusion of this suspension, Heggen
still must become compliant with Iowa Court Rule 41.4 and Iowa Court Rules
39.1 through 39.13 before she can be reinstated to practice law. We tax the costs
of this action to Heggen under Iowa Court Rule 36.24(1).
LICENSE SUSPENDED. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482869/ | 11/09/2022
IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs June 28, 2022
STATE OF TENNESSEE v. JACQUIZ MCBEE
Appeal from the Criminal Court for Knox County
No. 113585 Kyle A. Hixson, Criminal Court Judge
___________________________________
No. E2021-01048-CCA-R3-CD
___________________________________
Defendant, Jacquiz McBee, was convicted of first-degree premeditated murder and
received a life sentence to be served consecutively to his prior three-year sentence for
aggravated assault. On appeal, Defendant argues: that the evidence was insufficient to
support his conviction; that the trial court erred by excluding the victim and Defendant’s
minor child’s statement to a forensic interviewer; that the trial court erred by failing to
redact the words “on probation” from searches made on the internet from Defendant’s cell
phone; that the trial court erred by admitting the results of a Google search conducted by
Detective McFarland consistent with a search made by Defendant; that the trial court erred
by ordering consecutive sentencing; and that cumulative error entitles him to relief.
Following our review of the entire record and the parties’ briefs, we affirm the judgment
of the trial court.
Tenn. R. App. P. 3 Appeal as of Right; Judgments of the Criminal Court Affirmed
JILL BARTEE AYERS, J., delivered the opinion of the court, in which CAMILLE R.
MCMULLEN and JOHN W. CAMPBELL, SR., JJ., joined.
Mary Ward, Knoxville, Tennessee, for the appellant, Jacquiz McBee.
Herbert H. Slatery III, Attorney General and Reporter; Brent C. Cherry, Senior Assistant
Attorney General; Charme P. Allen, District Attorney General; and Kevin Allen and Joanie
Stewart, Assistant District Attorneys General, for the appellee, State of Tennessee.
OPINION
This case arises from the shooting death of the victim, Jessica Davis, who was
Defendant’s ex-girlfriend and mother of his four-year-old son. Defendant claimed that the
victim shot herself while they were wrestling for the gun. The Knox County Grand Jury
indicted Defendant for premeditated first-degree murder.
Trial
Michael Mays, custodian of records for the Knox County Emergency
Communications District 911, identified the recording of a 911 call and the computer-aided
dispatch (CAD) report for the call that the communications center received on April 16,
2018, at 9:16 p.m. The recording of the call was played for the jury.
During the call, Defendant told the 911 operator (“operator”) that his son’s mother
attempted to shoot him. Defendant sounded frantic and had some difficulty telling the
operator his location. He said, “I’m scared! I’m scared!” Defendant then went to a
neighbor’s residence to determine his location. When the operator asked for his name,
Defendant replied: “My name is Jacquiz.” The operator asked if Defendant was injured,
and he said, “No she tried to pull a gun out on me.” After repeatedly asking Defendant for
his location, the operator asked, “Is anybody else there?” Defendant said, “No, it’s just me
and my son.” He also told the operator that his son was four years old. Defendant
eventually gave the operator an address of “2639 Bakertown Road.” After prodding by the
operator, Defendant finally gave an apartment number of “704.” The operator then asked,
“Who pulled the gun on you?” Defendant replied:
I had my son sitting on my lap, and she was kind of playing with it.
I thought it was a BB gun. She was – kept - she kept pointing it at
me. Just playing. She was hopping then – hopping, then all of a
sudden, I heard a click and I – pow! I wrestled her to the ground and
kicked the gun away from her. We was wrestling for the gun. She
was on top of me. She ended up shooting – she pulled the trigger.
It was pointing right at her. It was pointing right f - - king at her.
Defendant identified the woman who was shot as the victim, Jessica Davis. He told
the operator, “She’s shot! She’s shot! I don’t know where on her body, [be]cause I don’t
want to see her. I don’t want to see.” The operator then asked, “She shot herself?”
Defendant replied, “Yes.” He also said that the victim was in the kitchen in Apartment
704. The operator asked, “And she did this on purpose?” To which Defendant explained,
“She was really aggressive! She was really aggressive! She had a gun in her hand. I didn’t
know – I didn’t know – I thought it was a fake gun, [be]cause it’s pink. It’s a pink colored
gun.” Defendant then identified himself as Jacquiz McBee.
-2-
Defendant told the operator that the victim “was just talking, just talking, like, I
don’t know if she was drunk or what.” He said that when he heard the gun “click,” he
moved his son away and then “kind of wrestled [the victim] to the ground with the gun.
She ended up pulling the gun with the trigger while it was pointing towards her.”
Defendant then wailed, “Why did she have a gun? Why did she have a gun? Why?”
Defendant continued wailing, and the 911 operator attempted to console Defendant and
instructed him to stay on the line and watch for police to arrive. At one point, Defendant
exclaimed, “Oh my God! I could have been killed! I could have been dead! She could
have killed me! Oh my God!” Defendant continued wailing, and the operator attempted
to calm him and console him.
At one point during the 911 call, a child’s voice can be heard making reference to a
gun. Defendant then replied, “She had a gun? How do you know she had a gun? She
shouldn’t have had a gun around you, Baby.” Defendant continued to wail intermittently
and then exclaimed, “What’s she got a gun for?” He later said, “Why would she try to kill
me?”
Waynesha Murphy testified that she and the victim were best friends, and they spoke
“almost daily.” She said that the victim would have been twenty-five years old at the time
of trial. Ms. Murphy testified that the victim and Defendant began dating when the victim
was in eighth grade. She said that she began to disapprove of the victim’s relationship with
Defendant approximately two years prior to the victim’s death, and she expressed this to
the victim. Ms. Murphy noted that she lived with victim and Defendant at one point. She
said that the victim and Defendant “broke up” in 2017, and the victim had a relationship
with Nicholas Smith at the time of the victim’s death in 2018. Ms. Murphy thought that
the victim and Mr. Smith had been dating for approximately eight months to one year at
the time.
Ms. Murphy testified that Mr. Smith was older than the victim, and they had a good
relationship. She said that the victim and Mr. Smith argued “[l]ike any normal couple,”
but “it was never abusive or physical.” Ms. Murphy denied that Mr. Smith ever put a gun
to the victim’s head or that the victim feared or had reason to fear that someone would
harm or kill her. She had never known the victim to possess a gun or express any reason
to harm herself. Ms. Murphy testified that the victim and Defendant had a son, L.M.,1 who
was three or four years old at the time of the victim’s death. The victim and L.M. lived at
2639 Bakertown Road, Apartment 704, and Ms. Murphy had been there many times. She
noted that the victim and Mr. Smith mostly stayed at his house when they were together.
Ms. Murphy testified that the victim contacted her sometime between 3:00 and 4:00
p.m. on April 16, 2018, and “was a little nervous about seeing [Defendant].” Ms. Murphy
1
Because it is the policy of this court to protect the identity of minors, this witness will be
referenced by initials.
-3-
said that Defendant last saw L.M. in early March on the child’s birthday, and he “came and
seen [L.M.] for like five minutes and took his tablet and gave him two toy guns.” On the
day of the shooting, Ms. Murphy told the victim to let Defendant see L.M. and to “[j]ust
relax, you know.” She noted that the victim had custody of L.M. and did not like Defendant
having the child around other women, including Defendant’s current girlfriend, Leah, with
whom the victim “had trouble.” Ms. Murphy testified that the victim had been upset with
comments that Defendant’s girlfriends had made on social media “disrespecting” the
victim as L.M.’s mother. She said that the victim had an issue with Leah posting pictures
of herself with L.M. on social media. Ms. Murphy testified that although the victim had
custody of L.M., Defendant “was going to try to put his self on child support.” She said,
“I honestly just think that he just wanted to paint a type of picture of himself because he
wasn’t financially providing for [L.M.]. Nicholas [Smith] was.”
Ms. Murphy testified that the victim was a happy person, and Ms. Murphy had no
reason to think the victim would take her own life. When she saw the victim on the day of
the shooting, “[i]t was never anything about her hurting herself or anything physical or
anything like that.” Ms. Murphy testified that she arrived at the victim’s apartment at
approximately 5:30 to 6:00 p.m. that day. The victim cooked some ribs at Ms. Murphy’s
request, and the two drank Crown Royal. Ms. Murphy explained that she and the victim
“only took like a shot or two,” and Ms. Murphy left before Defendant arrived because she
did not “get along with him and he was just coming to see his son.” She planned to return
later to get the food. Ms. Murphy testified that Defendant “was just going to come by, see
[L.M.], give him back his tablet and just see him for a while.” The victim was supposed
to call Ms. Murphy when Defendant left to let her know when to return. Ms. Murphy
testified that the victim would never have had a gun around L.M. and noted that the victim
had thrown away the toy guns that Defendant bought L.M. for his birthday in March of
2018.
On cross-examination, Ms. Murphy testified that she thought the victim had two
shots of Crown Royal with Coke. She said that the victim appeared to be sober when Ms.
Murphy arrived. She was unaware that the victim’s blood alcohol content was .16. Ms.
Murphy testified that she left the victim’s apartment after an hour because Defendant was
coming over. She said that the victim and Defendant’s girlfriend, Leah, did not like each
other, and she was not aware that the victim had made a video threatening Leah. Ms.
Murphy was aware that the victim had once texted Defendant that she was fearful of Mr.
Smith. However, Ms. Murphy said that the victim was drunk and did something “stupid”
when she sent the text and lied about the argument.
Nicholas Smith testified that he and the victim dated for approximately one and a
half years, and he helped her with her problems and with L.M. He said that they loved
each other, and he supported her both financially and emotionally. The victim also
confided in him about certain things. Mr. Smith testified that there were no physical
altercations between him and the victim, and he never possessed a gun around her. He also
-4-
said that he never held a gun to her head, and she did not own a gun. Mr. Murphy testified
that the victim did not allow guns around L.M., including toy ones.
Mr. Smith testified that the victim was “easy going” but had some “drama” with one
of Defendant’s girlfriends. He said that the victim was a very positive person, and he never
had any concerns that she would commit suicide. Mr. Smith testified that he and the victim
provided for L.M. She received food stamps, and Mr. Smith provided the rest, such as
clothing, underwear, and “[t]ooth brushes and stuff.”
Mr. Smith testified that he had never met Defendant in person, but he was aware
that Defendant was supposed to pick up L.M. on April 16, 2018. The victim had been with
Mr. Smith earlier that day at his house, and he took her home after 4:00 p.m. to wait for
Defendant. Mr. Smith testified that he had to meet a heating/cooling repair person, and he
was going to return to the victim’s apartment later because she planned to cook. Her friend
later called and told him what had happened but not that the victim had died. Mr. Smith
learned of the victim’s death when he arrived at her apartment. Mr. Smith testified that he
did not give a gun to the victim. He said that “she don’t play with that gun stuff, especially
not around her child.” Mr. Smith further testified that the victim was “too scared to lose
[L.M.] to something dumb like that. She ain’t like guns at all around him.”
On cross-examination, Mr. Smith testified that he was unaware that the victim was
on anxiety medication. He said that his arguments with the victim never became physical,
and he was not aware that she had texted Defendant one time and said that they had an
argument. Mr. Smith testified that he did not have any drinks with the victim before her
death.
Lieutenant Jason Lubenski of the Knox County Sheriff’s Office (“KCSO”) testified
that shortly after 9:00 p.m. on April 16, 2018, he responded to a shooting on Bakertown
Road. Other officers, including Deputies Parker Hall and Mike McClain, also responded.
Lieutenant Lubenski testified that they initially went to Apartment 701 but were then
directed to Apartment 704 by Defendant who was standing outside of the apartment and
seemed upset and distraught.
Footage from Deputy McClain’s body camera was played for the jury. As he
approached the door to Apartment 704, a small child is seen briefly in the video as an
officer is heard saying, “Well can you take her over there please?” Defendant then
approaches with [L.M.] at his side and says, “Does she have a f - -king gun and she was
trying to shoot.” [L.M.] says, “My mommy dead.” To which Defendant replies, “Shut up,
[L.M.]. You don’t know that.” Deputy McClain tells Defendant, “Well, you probably
don’t want to have your – this conversation in front of everyone. Okay?” With [L.M.] still
by his side, Defendant speaks into his cell phone and says, “Baby, I’m at J.C.’s house. J.C.
was kind of aggressive. I don’t know what’s going on. I think she was probably drinking.
She had a pink – she got a pink gun. Police are here. Maybe she shot herself.” Deputy
-5-
McClain asks Defendant to “come over here for a minute” and then asks him what
happened. Defendant says:
I had my son sitting on my lap. She came on first. I – I thought it
was a toy gun. It was a pink gun. Then I was – she was playing with
it. She was – I was recording her. She was like real aggressive,
talking crazy. I heard a click noise. I said, “What the hell you
doing?” I jumped towards her with the gun – I jumped towards her.
I tried to get the gun away from her. But she’s – she’s strong. She
trying to f- -cking get me off of her. And all of a sudden the gun just
went off. It just went off. But she had the gun in her hand.
Deputy McClain tells Defendant that one of the other officers will take [L.M.] to a
patrol car and “turn some cartoon on for him.” Defendant then says, “I’ve never seen this
in my life.” Deputy McClain replies, “Not many people have seen this in their life. Now,
I understand that your upset, and that’s completely understandable. Okay?” Defendant
then exclaims, “Why she got a gun? Why she got a gun? She probably would have killed
me!” Deputy McClain asks Defendant about his relationship with the victim and why he
was at her apartment, and Defendant answers his questions. Deputy McClain then asks,
“Was she just like showing you the gun?” Defendant replies:
No, she just came upstairs with the gun and I seen the gun. And all
of a sudden I heard a click noise. I said, ‘Jessie, what the hell are
you doing? And Jessie, like she – got up to jump towards her, ‘cause
I thought it was just a toy gun. And I jumped towards her and tried
to get the gun away from her and she just f - -cking pulled the trigger.
Defendant then asks, “She’s okay. Right?” Deputy McClain replies, I’ve not even been
in the house.” He offers to put Defendant in his patrol car where its warm because “it’s
forty degree out here” and explains that Defendant is not under arrest. Defendant tells
Deputy McClain that he has a car and needs to call his mother. However, Deputy McClain
explains that “with everything we got going on right now, I can’t let you make any phone
calls.” Defendant offers Deputy McClain his phone and asks him to “at least tell my
girlfriend what’s going on?” Deputy McClain asks for information to contact Defendant’s
girlfriend, which Defendant provides. The body camera footage ends with Deputy
McClain patting down Defendant and placing him in the patrol car.
Zachery Helton testified that he purchased a pink Cobra .380 caliber pistol in 2017
from Midsouth Pawn. He decided to sell the gun in the Spring of 2018 and met the buyer
at the “Oak Ridge, Lenoir City exit.” They were on the left-hand side of the “Love
McDonald’s gas station.” Mr. Helton thought that he sold the gun for $200 in cash, but he
did not remember the buyer’s name. He said that the police in this case took his phone to
-6-
find the buyer’s contact number. Mr. Helton thought that the contact number in his phone
associated with “Black Cobra 200” belonged to the buyer.
Demarcus O’Neal identified the pink pistol found at the scene of the shooting and
said, “I’ve seen it, yeah.” He spoke with Detective Keith McFarland and other detectives
about the gun in 2018. Mr. O’Neal said he saw the gun listed for sale on Armslist and
purchased it for his girlfriend in March of 2018. He said that his girlfriend did not want
the gun, so he decided to “get rid of it,” and sold it “a couple of weeks after [he] purchased
it.” Mr. O’Neal identified Defendant from a “photo spread” in 2018 and at trial as the
person who bought the gun from him.
Deputy Shaker Naser, a member of the Cyber Investigations Unit of the KCSO,
performed a forensic analysis on Defendant’s iPhone. He was able to view the web history
for websites visited from the phone, and some deleted files were recovered. Detective
Naser testified that the phone had web history that showed deleted entries for “Armslist,
Knoxville Handgun Classified[.]”
Detective Keith McFarland of the KCSO, Major Crimes Unit, responded to the
scene on Bakertown Road approximately thirty to forty-five minutes after the first patrol
officer arrived. He said that as part of the investigation, gunshot residue kits were collected,
fingerprints were lifted, and a DNA analysis was performed on the gun. The scene was
also photographed and videoed, and a spent shell casing and a magazine clip were found
near the victim’s body. Detective McFarland testified that Defendant’s DNA and
fingerprints were taken to compare with that found on the gun, but those tests were
negative. He was not surprised by the results and noted that Defendant admitted to
touching the gun. Detective McFarland testified that an ATF trace on the gun came back
to Mr. Helton, who was cooperative about who had purchased the gun. Through Mr.
Helton’s phone, Detective McFarland discovered that Mr. O’Neal purchased the gun from
Mr. Helton.
Detective McFarland interviewed Defendant on the night of the shooting and
advised him of his Miranda rights. Defendant went home after the shooting but was
arrested several weeks later. Detective McFarland attended the victim’s autopsy and spoke
with the medical examiner.
Detective McFarland testified that Defendant gave consent for his cell phone to be
searched, and Detective McFarland, with the assistance of the Cyber Investigations Unit,
examined it. He also examined the victim’s and Mr. Helton’s phones. Mr. Helton’s phone
contained interactions between him and Mr. O’Neal. Mr. O’Neal was listed in Mr.
Helton’s phone as “Black Cobra 200.” Mr. O’Neal was listed in Defendant’s phone as
“Tool Guy.”
-7-
Detective McFarland identified the “timeline from [Defendant’s] phone. Looks like
from 4/16/2018.” There were website searches on the phone for topics such as “What does
you reap what you sow mean in the Bible”; “Man struggles for his life”; “Limits on self-
defense”; and “Probation, stand your ground, peaceful journey.” An “extraction report” of
the phone indicated that internet searches had been made for items including “man
struggles for life”; “reap what you sow biblical meaning”; “killing someone in self-defense
while on probation”; and “is killing ever justified on probation.” The “web history” taken
from Defendant’s phone showed Google searches on April 16, 2018, with titles such as
“reap what you sow biblical meaning”; limits on self-defense”; and “probation, stand your
ground, peaceful journey, etc.”
Detective McFarland testified that the top three results for a Google search on
“killing someone in self-defense while on probation” included an article from
Learnaboutguns.com, entitled “Convicted Felon Faces Charges for Defending Self Against
Violent Home Invader”; an article from Lawyers.com, entitled “Limits on Self-Defense”;
and an article from Texasschlforum.com, entitled “Probation, stand your ground, peaceful
journey . . .etc.” Detective McFarland testified that the “cookies” report from Defendant’s
phone indicated that the articles were accessed on the phone.
A recording of Defendant’s interview with Detective McFarland during the early
morning hours of April 17, 2018, was admitted as an exhibit and played for the jury.
Defendant told Detective McFarland that before the shooting, he was sitting on the couch
in the living room with L.M. sitting on his lap, and the victim was walking back and forth
and talking aggressively. Defendant claimed that he ignored the victim because he was
there to spend time with L.M. He said that he and the victim “talked a little, but nothing –
like trying to catch up on each other.” Defendant told Detective McFarland that the victim
walked back into the kitchen, and he heard L.M. say, “Look, Daddy. Mommy has a gun.”
Defendant described the weapon as a “pink .22,” and he “thought it was a toy gun.” He
said that the victim pointed the gun, but she was smiling so he thought that she was
“playing.” Defendant told Detective McFarland that he heard the gun “click,” and he
pushed L.M. into the living room toward the door. He then approached the victim and
pushed her back into the kitchen up against the wall. Defendant said that the victim
“somehow pushed [him] away,” and as he pushed back, “[t]hat’s when [he] heard the gun
go off.”
Detective McFarland asked if the victim was employed, and Defendant said, “She’s
never worked a day in her life.” When asked how she paid the bills, Defendant responded,
“Well, I try to give her money for the rent and she got government assistance or something
like that.” He said that the victim had stopped him from seeing L.M. and taking him places.
Defendant told Detective McFarland that “[s]he said the only way I could see [L.M.] is to
place myself on child support.” He said he and the victim broke up because she got
intoxicated at a party and became violent as they were driving home causing Defendant to
crash his car into another car and a dumpster. Defendant said that a witness to the crash
-8-
came and pulled the victim off of him. He noted that the victim “was real bad with
alcohol.” Defendant told Detective McFarland that as he was taking the victim home after
the crash in his damaged vehicle, he had to pull over and calm the victim down. A police
officer arrived and offered to drive her home.
At one point, during a pause in the interview, Defendant said, “She had no reason
to use a gun. Nobody want[ed] to hurt her.” Detective McFarland asked Defendant if the
victim used drugs, and Defendant said, “[A]t one point she was smoking pot.” He also said
that she met Mr. Smith, who was “like forty years old,” through a friend that sold drugs.
Defendant told Detective McFarland that on one occasion the victim told him that Mr.
Smith put a “gun to her head and threatened to kill her.” However, he said that the victim
stayed with Mr. Smith because he was “helping her, like, moneywise.” Defendant told
Detective McFarland that he once called the Department of Children’s Services (“DCS”)
after the victim texted him for help. He said that he was worried because “this guy may be
trying to hurt her again because it’s not the first time, not the second time.” Defendant also
said that he called police and asked them to send someone to help the victim, but Defendant
did not know where the victim and Mr. Smith lived, so the police could not do anything.2
Defendant asserted to Detective McFarland that he reported incidents involving the
victim to police on multiple occasions. Detective McFarland testified that he attempted to
locate police reports on the incidents, but he found “[o]nly one that he mentioned.” He did
not find any reports or calls for service for any incidents between the victim and Mr. Smith.
Detective McFarland testified that “at some point during [his] investigation, [he] was
alerted about the presence of a letter that had emanated from the Knox County Jail[.]” He
said that the letter consisted of four pages handwritten in pencil, “[f]irst being addressed to
Keenan and the second being addressed to Keenan and Keelan, the third to Leah and the
fourth to Marcus.” The return address for the letter reflected “Ryan Stansberry” at the
detention facility at 5001 Maloneyville Road. Detective McFarland testified that he
obtained handwriting samples for Defendant and sent the letter to the Tennessee Bureau of
Investigation (“TBI”) for analysis.
The letter, admitted at trial and addressed to “Keenan and Keelan,” asked them
to find somebody to act as a witness of hearing an argument or some
wrestling for me! Who ever you find must act as they don’t know
me and must not be on my [Facebook].
2
During the interview, Defendant told Detective McFarland that he was on probation. The
interview continued, but the recording had no sound for the next twenty seconds during which Defendant
apparently talked about the reason for being on probation.
-9-
Who ever must make it seem like they were walking by [the
victim’s] ap[artment] that night and heard a gun shot from the
direction of her ap[artment] when they got a distance.
Witness need to say they remember walking by hearing a man
screaming and saying “Please drop it [victim]. Please fu[- -]king
drop it” and also heard her screaming “You, you, you.” (repeatedly)
over his voice.
Witness walked a distance away hearing a gun shot as they got in the
car!!
Incident happened April 16 or 17th around 9ish in Nature Cove in
Baker Town.
I had Tabitha in mine [sic] or Daniel Thomas. Tabitha may do if you
talk to her. Tell her I asked if she could.
If you find someone tell Mama to contact my lawyer and tell her she
know someone that may have heard something regarding my case.
Who ever just not let anyone trick them saying I know them.
She may also see if they will give a statement at trial. This will really
help me.
Just in case Google map her ap[artment] in Nature Cove so they can
prove they know the ap[artment] and why they were near.
They could say they bought something from “Letgo” from someone
there.
I’m trusting y’all with this.
Defendant asked “Marcus” to reset his Gmail password “asap.” He said, “I also need to
know if the searches in the Google account can be edited. . . Soon as you can figure out a
[password] give it to Keenan to edit search they fabricated in my phone . . .or you can edit
them for me.” Defendant also asked Keenan to “edit or delete certain searches made in
April 16 or 17[.]” He instructed Keenan to “keep the search I need regarding a TN show”
called “how to get away with murder.”
On cross-examination, Detective McFarland testified that Defendant’s DNA was
not found on the magazine clip from the gun, and Defendant’s fingerprints were not found
- 10 -
on the gun. He agreed that while gunshot residue was found on the victim’s hands, none
was found on Defendant’s hands. Detective McFarland said that he did not notice any
blood spatter on Defendant’s clothing. He agreed that Defendant was not arrested until
nearly three months after the victim’s death.
Special Agent Russell Davis, a forensic scientist with the TBI, testified as an expert
in the microanalysis of gunshot residue. He prepared a laboratory microanalysis report in
this case. Special Agent Davis testified that gunshot residue results from gases, metals,
and other materials that scatter from a weapon when its fired, which may collect on a
person’s skin and clothing. He explained that “a gun is designed to fire and push a . . .
bullet down the barrel of the weapon. So, most of this material is going to go down range.
However, the weapon is not gas tight.” Special Agent Davis testified that with a semi-
automatic weapon, such as the one used in this case, “[t]he action of the weapon is going
to kick out that cartridge case and allow some of this material to escape in the immediate
vicinity of the person and the person’s hands.”
When asked about the presence of gunshot residue on the victim’s hands, Special
Agent Davis responded, “It’s been my experience that generally when someone has been
shot at close range from any particular weapon, it is not unusual to find this material on the
person’s hands.” Concerning the lack of gunshot residue on Defendant’s hands, Special
Agent Davis testified:
[T]here’s a couple of reasons why someone may not have residue on
their hands. The science does not help us in this instance. The
possibility is that the person was not around a weapon when it fired.
The other possibility is this material has come off of the hands. It’s
trapped in the oils on our hands. Our hands regenerate this oil. Over
time the material is going to come off.
If you wash your hands, it takes the oil and the residue with it. If
you’re just doing things, the oils on your hands are going to slowly
start coming off. So not finding gunshot residue doesn’t tell me
anything except that I didn’t find gunshot primer residue.
The parties stipulated at trial that Special Agent Lucas Riley, a forensic scientist
with the TBI, would have testified that no latent fingerprint ridge detail was found on the
gun, magazine clip, cartridges or cartridge case recovered in this case. The parties further
stipulated that Special Agent Greg Fort, also a forensic scientist with the TBI, would have
testified that “he tested the known blood standard from [the victim] and the buccal swabs
known standard from [Defendant] against the fingernail scrapings of [the victim] and pistol
and magazine from the kitchen floor. With regard to that, the results, the DNA profile was
not able to be obtained.” Special Agent Fort would have also testified that there was a
- 11 -
mixture of DNA on the gun that was consistent with at least three individuals, including
one male.
Finally, the parties stipulated that Special Agent Alex Broadhag would have
testified at trial as an expert in firearms identification. He would have testified that he
examined the gun, magazine clip, and the cartridge casing recovered from the scene as well
as the bullet recovered from the victim’s body. Special Agent Broadhag determined that
the gun fired the bullet recovered from the victim’s body, and it ejected the cartridge casing.
“Additionally, . . .[Special] Agent Broadhag also created test patterns at 3, 6, 12 and 18
inches that were then forwarded to the Knox County Medical Examiner with this firearm.”
Deputy Christy Williams of the KCSO testified that she was helping out in the mail
department of the Knox County Jail in March of 2019. She identified a letter with Ryan
Stansberry as the sender which was returned to the jail because it was undeliverable to the
intended recipient. Deputy Williams testified that when jail personnel attempted to return
the letter to Mr. Stansberry, he refused delivery. The letter was eventually forwarded to
the District Attorney General’s Office.
Corporal Frank Nauss of the KCSO, Corrections Division, testified that Deputy
Williams brought the letter to him, and he opened it in an attempt to determine who sent it.
He testified that at the time the letter was received, Defendant and Mr. Stansberry were
housed in the same “pod” of cells with one cell in between the two. Corporal Nauss
testified that Defendant referred to himself in the letter. The letter was turned over to
investigators.
Deputy Travis Oldham, a shift commander at the Knox County Jail, testified that he
searched Defendant’s cell in October of 2020 and discovered a handwritten list of names
and phone numbers which Deputy Oldham scanned to his email. He noted that Defendant
had no cellmate at the time. Approximately one week later, Deputy Oldham asked
Defendant for the original copy of the list. He testified, “At first he was going to hand it
over, and then he thought it, it was fishy[.]” Deputy Oldham testified that Defendant said,
“‘Let me call my attorney first. This doesn’t seem right,’ something in that regard.” He
then told Defendant, “It’s not, it’s not a legal piece of paper. There’s no need to call your
attorney.” Deputy Oldham testified that Defendant said, “If you guys want this, you’re
going to have to retrieve it from the toilet,” and Defendant flushed the list before Deputy
Oldham could get into the cell.
Ryan Stansberry testified that he was incarcerated in the Knox County Jail in March
of 2019, and he recalled being housed near Defendant “at some point.” He said that they
talked every day. Mr. Stansberry denied discussing any letters with Defendant, and he
denied writing “any letters out from the penal farm to Keelan, Keenan, Marcus or Leah.”
When shown the letter introduced at trial with his name listed in the return address, Mr.
Stansberry denied sending the letter or that it was written in his handwriting.
- 12 -
Larry Miller, professor and chairman of the Department of Criminal Justice at East
Tennessee State University and “director of the graduate program of forensic document
examination,” testified “as an expert in forensic document examination.” He said that there
“was a six-page handwritten letter that was in question, and also . . . some known specimens
of [Defendant’s] known handwriting.”3 Dr. Miller concluded, “My opinion is the person
who wrote the known specimens that I used for comparison also wrote the six-page letter.”
Dr. Amy Hawes, Deputy State Medical Examiner with the Tennessee Office of the
State Chief Medical Examiner, performed an autopsy on the victim on April 17, 2018. She
testified that the victim had a gunshot wound to her chin, and “there were no other
significant trauma or injuries.” Dr. Hawes opined that the bullet traveled in a path from
front to back with “injuries of her mandible which is the bottom jaw bone, the larynx which
is the voice box, and the spine. A medium caliber bullet was recovered. Dr. Hawes
testified that the victim had a few minor injuries, including a small bruise on her left upper
arm, a larger bruise on her right thigh, and a bruise to the right side of her scalp. The
bruises on the victim’s arm and thigh were yellowish-brown, indicating to Dr. Hawes “that
they are older, meaning they were likely already there at the time of her death.”
Concerning how quickly the victim may have died, Dr. Hawes testified:
It would have been [ ], “Fairly quickly,” not immediate. And the
reason I am somewhat hesitant to say exactly how long is because
her larynx which is where your - - your air comes into your lungs,
it’s part of your airway would come through, that would make it very
difficult for her to breathe, and also her spine was injured.
So it’s difficult for me to say that it was immediate, but I would
expect she would have dead - - been dead within a very short period
of time.
Dr. Hawes testified that the trajectory of the bullet in the victim’s body went from “front
to back” and lodged in her spine. She further testified: “So that tells me that the bullet went
directly from front to back. So had her head been turned, that would have also mean[t] that
the gun at the time it was fired would have also had to be at the same angle.” Dr. Hawes
agreed that she could not tell “any positional angle, the way the head swivels or the way,
the way her head would have been positioned when she was shot[.]” Dr. Hawes concluded
that the victim’s “cause of death is a gunshot wound to the head. And the manner of death
is homicide.”
3
Other witnesses referred to the letter as four pages. Two of the pages had something also written
on the back.
- 13 -
Dr. Hawes then testified concerning “soot and gunpowder stippling” in describing
the appearance of a wound on the skin. She said, “[A]s a medical examiner all I can say is
there’s gunpowder stippling there or not, and if it is there, it tells me it was a couple of
inches up to a couple of feet.” Dr. Hawes noted that the firearms examiner in this case
tested the gun to determine the stippling patterns from 3, 6, 12, and 18 inches. In comparing
those patterns, Dr. Hawes concluded that “it[’]s closest to the test fire pattern of about 12
inches.”
On cross-examination, Dr. Hawes agreed that “most suicidal gunshot wounds are at
contact range.” She disagreed with defense counsel’s assertion that “that’s what we have
here, is contact range.” Dr. Hawes testified, “What we have here is intermediate range.”
She further said, “I have no indication, and there’s been no evidence provided to me that
would indicate that this wound was self-inflicted.”
Defendant testified that he met the victim when he was in the eighth grade, and they
dated until March of 2017. Their son, L.M. was born in 2014. Defendant testified that he
dated someone named “Kimber” for a short period time after he and the victim split up in
2017, and he had a relationship with Leah Vasquez, beginning in early 2018. He said that
the victim had an “on and off” relationship with Nicholas Smith. Defendant testified that
during the period of time in early December 2017 until the time of the victim’s death, she
“emotionally wanted physical attention, but I couldn’t do physical attention with her just -
- I was in a relationship, so.”
Defendant testified that the victim would get upset if she thought he was looking at
another woman. He noted that the victim did not like Ms. Vasquez because Ms. Vasquez
went to Ihop with Defendant and L.M., and they took a photo that Ms. Vasquez posted on
her wallpaper on Facebook. Defendant testified, “And I told her, ‘I wouldn’t post that.’
She said ‘Why?’ I said, ‘Because it may start an issue.’” He said that Ms. Vasquez then
began receiving text messages, voice mails, and calls from the victim.
Defendant testified that the victim discussed her relationship with Mr. Smith with
him many times. He said that the victim indicated that she was with Mr. Smith for the
“financial stability.” Defendant testified that the victim called him once about an incident
where “she had some type of fight with [Mr. Smith] and he put a gun to her head and
wouldn’t let her leave on several occasions.” He said that L.M. was present at the time.
Defendant testified that the victim said that “she thought he was going to blow her head off
with a shotgun that he had at his location.” He said that the victim sent him text messages
that read, “Help, please help, please.” Defendant testified that he asked the victim for her
location, which she said that she had sent twice, but the location “never came through.”
He also said that the victim had to call a taxi. Defendant testified that he called 911 for
help but the operator said that nothing could be done without knowing the victim’s location.
He said that the victim later sent him photographs of herself with “strangle marks around
- 14 -
her neck.” Defendant said that the victim was fearful of Mr. Smith, and she told Defendant
to be fearful of him as well.
Defendant testified that he contacted DCS because he was concerned about L.M.’s
safety. He said, “I started to seek custody of [L.M.] because I don’t want my son around
that bulls[ ]t.” Defendant said that he and the victim did not have a visitation schedule for
him to see L.M., and he said that she stopped allowing him to see L.M. in December of
2017. Defendant testified, “I put myself on child support before she even found out that I
really went to go put myself on child support.” Defendant testified that there was an
upcoming child support hearing scheduled at the time of the victim’s death that Defendant
believed “could have been for the custody.” He agreed that he was trying to get custody
of L.M. Defendant testified that the victim eventually allowed him to see L.M., and he
bought the victim the pink Cobra pistol from Mr. O’Neal for her protection. Defendant
testified that he bought the gun on March 26 or 27, 2018, and he delivered it to the victim
at her mother’s house. He admitted that he initially lied about the gun to Detective
McFarland because he was “scared,” and he was on probation at the time and not supposed
to be around any guns.
Defendant testified that on the day of the shooting, he made plans with the victim
to see L.M. after work. They agreed that Defendant would go over to the victim’s
apartment at “probably 8:00 maybe.” Defendant testified that when he got to the
apartment, the victim was at the door with L.M. standing in front of her. He said that he
began “hugging on” L.M., and he gave the victim a hug too. Defendant testified that the
victim hugged him back, grabbed his butt, and then walked downstairs. He said that the
victim came back upstairs, and everything seemed fine until “she started mentioning
relationships and talking about how I’m disrespectful.”
Defendant agreed that he took several videos of the interactions between him and
the victim that day because “I knew if I were to bring it to court during the child custody
so they can see or get a visual of how our relationship was and the condition, circumstances
of how [L.M.] was living.” Defendant testified that before he started the video, the victim
told him that she loved him and wanted to “make it work.” She also complained about
Defendant being in a serious relationship and began ranting that he needed to “put [his]
bitch in check.” Defendant said that the victim also began talking about child support and
told him that he should “just try to stay in [L.M.’s] life and just be there when she would
allow [Defendant] to see him.”
When asked if the victim seemed to be under the influence of anything that night,
Defendant said that he could not tell and that she did not seem any different than usual and
that “[i]t was just natural, it was just natural.” He noted that the victim took medicine for
anxiety and depression because he had taken her to Cherokee Health System in the past to
pick it up. Defendant testified that the victim would sometimes get mad at him and say,
“You make me want to kill myself.”
- 15 -
Defendant testified that before the shooting, he was sitting on the couch with L.M.
and trying to use his Apple Watch to “Facetime” with Ms. Vasquez so that she could see
L.M. He said that the victim was standing in front of him by the bathroom door “just going
back and forth. Then I really started ignoring her. Then she started talking about ‘I don’t
care you - - they’re not going to let you get custody of my son because,’ you know, just
basically making me - - just trying to make me feel bad, I guess.” Defendant testified that
the victim was begging him to see L.M. and to pick him up and spend time with him.
Defendant testified that L.M. was sitting on his leg, and they were watching
television while L.M. was trying to get his cell phone. Defendant said that he was also
texting Ms. Vasquez to let her know that he was getting ready to leave. He asserted that
L.M. then said, “Look, Daddy, Mommy has a gun.” Defendant testified that the victim
was in the kitchen, and he “didn’t pay her no mind” at first, but then he heard “like a click
noise.” He said that he pushed L.M. and told him to “run.” Defendant testified that he ran
toward the victim and grabbed her arms, pushing her back against the wall. He said, “I
guess whenever she hit the wall, the gun came in a weird direction. It was a weird direction
that the gun was pointing. It wasn’t how you would normally handle a gun, the way that
gun was in her hand.”
Defendant testified that he tried to hold the victim, but she pushed off the wall, and
as they struggled, he pleaded with the victim to drop the gun. He said that the victim kept
repeating “You, you, you, you.” Defendant testified that L.M. was “pulling his hair
because he sees what’s going on and then a shot goes off.” Defendant testified, “[A]s soon
as the shot goes off, I jumped back from her. The gun dropped on the ground from her
hand and she like bent down towards the gun like she was about to pick it up.” He said
that he “kind of kicked the gun a little bit from out of her reach” as he ran toward L.M.
Defendant testified that he did not fire the gun or have control of it. He admitted to later
taking the gun from the victim’s right side to “dismantle it.”
Defendant testified that he ran downstairs and called “police” and then checked
himself to make sure that he was not injured. He then ran upstairs to see if he could hear
anything from the victim. Defendant testified that he could see the victim’s feet as he got
near the couch and then ran back downstairs “because eventually I you know, just
suspected that she was injured.” Defendant said that he eventually went to a neighbor’s
house while still on the phone with the 911 operator because he did not know the victim’s
address.
On cross-examination, Defendant testified that many of the unknown calls on his
cell phone were from the victim because she would “spoof” her cell phone number to call
him after he blocked her number. He also claimed that the victim changed her original cell
phone number to another one because he gave her original number to DCS. Defendant
testified that he and the victim had an extensive text message history. He said that there
were incidents between the victim and Mr. Smith that caused him alarm, including an
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incident where Mr. Smith placed a gun to the victim’s head. Defendant said that because
of the incidents with Mr. Smith, the latest being in February of 2018, he purchased a gun
for the victim at her request. He agreed that his text messages with the victim consisted of
bickering back and forth about L.M. Defendant said that he was concerned that the victim
had L.M. around during the incidents with Mr. Smith. He did not know whether there was
a text message on his phone about Mr. Smith pointing a gun at the victim’s head.
Defendant claimed that the victim told him about the gun incident when she called him
from one of the unknown numbers. He acknowledged that there were no text messages
about him buying the victim a gun.
Defendant agreed that he made several searches on Armslist.com on March 22,
2018, and he deleted the searches because he did not want anything “negative like that” on
his phone. Concerning his search history, Defendant testified: “The searches were
referencing a TV show, and it had a familiar - - a legal matter that I had second-hand
knowledge of that would expose principles, the structural principles of law, case law that
would indicate the possibility of a TV show using fake law.” Defendant admitted that he
searched firearms, and purchased a gun on March 26 or 27, 2018. He said that he did not
have a reason to buy the gun through legitimate means, and he met Mr. O’Neal and
purchased it with cash. He claimed that he did not buy any ammunition for the gun.
Defendant asserted that his only reason for purchasing the gun was to give it to the victim
to “guarantee the safety of [Defendant’s] son,” even though he claimed that the victim was
a “drunk,” suffered from anxiety and depression, and schizophrenia and on medication,
which she sometimes failed to take. Defendant did not recall if the victim ever got upset
with him for buying L.M. toy guns.
Defendant also agreed that he entered a search on his phone for “Killing someone
in self-defense while on probation,” and he entered the other searches that were deleted.
He denied spending a lot of time on the articles that he accessed an hour-and-a-half before
the victim was killed. He said, “I glanced at it to look for structural principles of law.”
Defendant testified that he did not learn anything, and “[t]hat’s why there was other
searches in my phone that was not offered as my proof, that would state proof that this TV
show uses fake law and facts.” He claimed that someone manipulated the information on
his phone and that the other searches he made contemporaneous with those admitted at trial
would have shown that he was looking at a television show, not planning a murder.
Defendant testified that he deleted any web history that reflected negatively on him because
he never locked his cell phone, and anyone could access it.
Defendant agreed that he had never paid child support for L.M. and that he was set
to start paying support on May 23, 2018. He also agreed that he and the victim were in a
fight for custody of the child and that the victim had served him with a child support
petition. Defendant testified that he asked to “place [himself] on child support” in order to
get custody of L.M. Defendant testified that he was served with the child support petition
prior to buying the gun. He said that he took the gun to the victim’s mother’s house on
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March 27, 2018, along with some shirts for L.M. He claimed that one of the conditions
that the victim gave him for seeing L.M. was the purchase of the gun. Defendant agreed
that there was a period of time prior to that when the victim did not allow him to see L.M.,
including at Christmas and on Father’s Day. However, this did not upset him “because
[he] knew that [he] was going to get custody of him.” Defendant agreed that he lied during
the 911 call and to police, when he asked why the victim had a gun, until Detective
McFarland confronted him with information that Defendant had purchased the gun from
Mr. O’Neal.
Defendant agreed that he was videoing the victim prior to the shooting. He stopped
recording at 9:02 p.m., and then placed a call to 911 at 9:06. He claimed that he stopped
recording because his cell phone “went dead.” He then said that the phone was at three
percent before the fourteen-minute 911 call.4 Defendant testified that the victim initially
pointed the gun at him, and he moved out of the way and then ran toward her. He said that
he grabbed both of her arms in order to get the gun and pushed her back against the wall.
Defendant testified that the gun was in the victim’s right hand, and she was “putting her
hands back and forth behind her head and over her head trying to stop [him] from getting
access to the gun.” He said that he continued holding the victim against the wall by her
“biceps” and scuffling with her. Defendant testified that at one point, the victim pushed
off the wall and pushed him back. He denied that they fell to the ground, even though that
is what he told the 911 operator. Defendant testified that he did not let go of the victim
until the “gun went off.” He said that the victim was “flailing,” and using her head to push
him on the table when the gun fired. Defendant agreed that even though he and the victim
were in a struggle, nothing appeared to be broken or disrupted at the scene, other than a
chair “moved away from where the table was at.” He said that he kicked the gun away
after the victim fell to the floor, and he eventually took the magazine out of it and “placed
it away so she would not be comfortable if she was going to get up and grab the gun.”
Defendant did not recall turning off the kitchen light after the shooting, and he said that he
did not remain in the room after the shooting because he was scared to be in there with her.
When asked if he did anything to physically help the victim, Defendant replied, “Look,
look, I don’t have no experience. What am I supposed to do? I don’t treat gunshot
wounds.” Defendant testified that Investigator McFarland later informed him that the
victim was deceased, and Defendant became emotional.
Defendant admitted that he wrote the letter recovered at the jail addressed to the
four individuals and used Ryan Stansberry’s name as the sender. He claimed that he sent
the letter to help himself because he was “scared that [his] proof of evidence was not in
[his] defense.” Defendant agreed that in the letter, he asked the individuals to find a witness
to lie to the jury and commit perjury.
4
Defendant testified that he also placed a call to Ms. Vasquez after the 911 call, while his phone
was at three percent.
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On re-direct examination, Defendant testified that he did not know how the victim
died or how the gun fired. He said, “I didn’t even know where she was shot.” Defendant
further testified that he did not know whether the shooting was an accident or if the victim
was trying to harm herself.
Sentencing Hearing
At the sentencing hearing, the State’s proof consisted of the presentence report, an
addendum to the presentence report containing Defendant’s statement, and the affidavit of
complaint from Defendant’s prior judicial diversion case. It was noted that Defendant was
on judicial diversion at the time of the victim’s murder for an aggravated assault against
the victim that involved firing a weapon into her car.
Defendant presented no proof at the hearing and gave an allocution during which he
said that he still “had love” for the victim and her family. He said that he was not a “bad
guy” and got “caught up in a bad situation.” Defendant asked the trial court for “some type
of relief” and asserted that if the victim’s family were there, he “would love to tell them
sorry about how that event took place[.]” He said that he wished it never happened and
that he, L.M., and the victim’s family and friends were hurt by it. Defendant told the trial
court that he had taken himself out of the “situation” with the victim and was trying to get
custody of L.M. “to get him out of the [same] situation.”
After arguments by both the State and Defendant, the trial court revoked
Defendant’s judicial diversion sentence in the aggravated assault case noting that
Defendant “violated the terms of both his judicial diversion and his probation” and ordered
him to serve the original three-year sentence.
The trial court found that “none of the mandatory factors” for consecutive
sentencing apply in this case. The court further found:
But we then turn to the permissive consecutive sentencing
considerations under 40-35-115(b). I’ll note from the outset that I
think consideration (6) applies, “The defendant is sentenced for an
offense committed while on probation.”
I know that he was placed on judicial diversion, so you do have a
situation where the judgment was deferred, but if you look at the first
sentence of Section 313 it says in - - it’s plain language that the
sentence should be - - or could be deferred and the defendant placed
on probation.
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So I think he was in fact statutorily on probation and therefore I think
Section 115 (b)(6) does apply to allow the Court to consider
permissive consecutive sentencing.
Additionally, the Court is called upon by the State to consider factor
4. “The defendant is a dangerous offender whose behavior indicated
little or no regard for human life and had no hesitation about
committing the crime in which the risk to human life is high.”
I’ve already ruled on that as it relates to revoking probation in the
previous case, but I would like to elaborate on that a little bit now. I
think the proof in this case that was presented to the jury absolutely
makes this showing.
This was a cold, calculated first-degree murder. And the steps that
[Defendant] took to procure the weapon, and just think of the little
details here, to procure - - it was a pink gun. So it would look like a
gun that would be possessed by a woman.
And then to eventually use that gun in her murder. To have the child
present when that happens. The Court does not think that was an
accident. I think that was an attempt by [Defendant] to create a
diversion, to create the thought in the investigators, Well, who would
shoot someone in front of their own child?
I think that was something that was done intentionally. I think
conducting that act in front of the child not only led to [the victim’s]
death, but then you’re firing a weapon in a closed room like that, it
could have very easily led to the death of the child.
He had no hesitation about committing this crime. It took - - it was
sometime between the time the gun was purchased and the actual
murder took place. I think it was part of his grand design that whole
time to commit this murder. He would have had multiple
opportunities to pull back and to change his mind and to not commit
this crime, but he did.
I do think an extended sentence is necessary to protect the public
against further criminal conduct by the defendant. I understand
[defense counsel’s] argument that really as a criminal matter he’s
only had issues with this one victim. But I think it’s true what the
State says as well, this was a victim who presented an issue for him.
She was a problem to him.
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There will be instances in his life, if he does survive this sentence,
where he will run into other individuals like that. And I do find
reading the report or the statement given by [Defendant] which has
been filed as Exhibit 2, as well as his allocution here to the Court
today, if you read it closely and if you listen closely to what it’s
saying, I really think it’s chilling.
The lack of remorse, the air of he was doing this victim a favor, bless
her mother’s heart. She’s struggled with things. Bless this victim’s
heart; I was just trying to help her. And just a complete lack of
contrition and remorse for taking this woman out of the world. It is
chilling. And I think it speaks to how [Defendant] could handle
further disputes later in life.
Does an aggregate sentence reasonably relate to the severity of the
offenses committed? I think tacking three years on to a life sentence,
you know, and effective parole eligibility of 51 years, I think it does.
I think when you commit two actions like this, they’re separate,
horrible, violent acts and they should be punished separately.
The trial court imposed the mandatory life sentence for Defendant’s first-degree murder
conviction to be served consecutively to his three-year sentence for aggravated assault in
the previous case.
ANALYSIS
I. Sufficiency of the Evidence
Defendant argues that “[t]here is insufficient evidence in the record to establish
beyond a reasonable doubt that the [d]efendant is guilty of first-degree murder.” The State
responds that the evidence presented at trial was sufficient to support the jury’s verdict.
“Because a verdict of guilt removes the presumption of innocence and raises a
presumption of guilt, the criminal defendant bears the burden on appeal of showing that
the evidence was legally insufficient to sustain a guilty verdict.” State v. Hanson, 279
S.W.3d 265, 275 (Tenn. 2009) (citing State v. Evans, 838 S.W.2d 185, 191 (Tenn. 1992).
“Appellate courts evaluating the sufficiency of the convicting evidence must determine
‘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.’” State v. Wagner, 382 S.W.3d 289, 297 (Tenn. 2012) (quoting Jackson
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v. Virginia, 443 U.S. 307, 319 (1979)); see Tenn. R. App. P. 13(e). When this court
evaluates the sufficiency of the evidence on appeal, the State is entitled to the strongest
legitimate view of the evidence and all reasonable inferences that may be drawn from that
evidence. State v. Davis, 354 S.W.3d 718, 729 (Tenn. 2011) (citing State v. Majors, 318
S.W.3d 850, 857 (Tenn. 2010)).
Guilt may be found beyond a reasonable doubt where there is direct evidence,
circumstantial evidence, or a combination of the two. State v. Sutton, 166 S.W.3d 686, 691
(Tenn. 2005); State v. Hall, 976 S.W.2d 121, 140 (Tenn. 1998). The standard of review
for sufficiency of the evidence “‘is the same whether the conviction is based upon direct
or circumstantial evidence.’” State v. Dorantes, 331 S.W.3d 370, 379 (Tenn. 2011)
(quoting Hanson, 279 S.W.3d at 275). The jury as the trier of fact must evaluate the
credibility of the witnesses, determine the weight given to witnesses’ testimony, and
reconcile all conflicts in the evidence. State v. Campbell, 245 S.W.3d 331, 335 (Tenn.
2008) (citing Byrge v. State, 575 S.W.2d 292, 295 (Tenn. Crim. App. 1978)). Moreover,
the jury determines the weight to be given to circumstantial evidence, the inferences to be
drawn from this evidence, and the extent to which the circumstances are consistent with
guilt and inconsistent with innocence. Dorantes, 331 S.W.3d at 379 (citing State v. Rice,
184 S.W.3d 646, 662 (Tenn. 2006)). When considering the sufficiency of the evidence,
this court “neither re-weighs the evidence nor substitutes its inferences for those drawn by
the jury.” Wagner, 382 S.W.3d at 297 (citing State v. Bland, 958 S.W.2d 651, 659 (Tenn.
1997)).
First-degree murder is defined as “[a] premeditated and intentional killing of
another.” T.C.A. § 39-13-202(a)(1). A person acts intentionally “when it is the person’s
conscious objective or desire to engage in the conduct or cause the result.” Id. § 39-11-
302(a).
“[P]remeditation” is an act done after the exercise of reflection and
judgment. “Premeditation” means that the intent to kill must have been
formed prior to the act itself. It is not necessary that the purpose to kill
pre-exist in the mind of the accused for any definite period of time. The
mental state of the accused at the time the accused allegedly decided to
kill must be carefully considered in order to determine whether the
accused was sufficiently free from excitement and passion as to be capable
of premeditation.
Id. § 39-13-202(e).
The element of premeditation is a factual question to be decided by a jury from all
the circumstances surrounding the killing. State v. Davidson, 121 S.W.3d 600, 614 (Tenn.
2003). Although a jury may not engage in speculation, it may infer premeditation from the
manner and circumstances of the killing. Bland, 958 S.W.2d at 660. Our supreme court
- 22 -
has held that factors demonstrating the existence of premeditation include, but are not
limited to, the following: the declaration of the intent to kill, the procurement of a weapon,
the use of a deadly weapon upon an unarmed victim, the fact that the killing was
particularly cruel, the infliction of multiple wounds, the making of preparations before the
killing for the purpose of concealing the crime, the destruction or secretion of evidence,
and calmness immediately after the killing. State v. Jackson, 173 S.W.3d 401, 409 (Tenn.
2005); State v. Nichols, 24 S.W.3d 297, 302 (Tenn. 2000). Additional factors cited by this
court from which a jury may infer premeditation include lack of provocation by the victim
and the defendant’s failure to render aid to the victim. See State v. Lewis, 36 S.W.3d 88,
96 (Tenn. Crim. App. 2000). Further, “[e]stablishment of a motive for the killing is a factor
from which the jury may infer premeditation.” State v. Leach, 148 S.W.3d 42, 54 (Tenn.
2004) (citing State v. Nesbit, 978 S.W.2d 872, 898 (Tenn. 1998)).
We conclude that the evidence viewed in the light most favorable to the State proves
that the killing in this case was premeditated. The victim and Defendant were involved in
a dispute over child support and custody of their four-year-old son, L.M., at the time of the
shooting. The proof shows that Defendant purchased a pink Cobra .380 caliber pistol in
cash a few weeks before the victim’s death from Mr. O’Neal, and the gun was not
registered in Defendant’s name. After the shooting, Defendant told the 911 operator and
investigators that he did know the victim had a gun, and he asked multiple times why she
had a gun. It was not until Investigator McFarland confronted Defendant with information
that Defendant purchased the weapon from Mr. O’Neal that Defendant changed his story
and said that he bought the gun for the victim, at her request, for protection from the
victim’s current boyfriend, Mr. Smith, and had given it to her on March 27, 2018.
Defendant told several different versions as to how the shooting occurred. He told
the 911 operator that the victim appeared holding the pistol, and the weapon discharged
when he wrestled her to the ground. He further told the operator that “she pulled the trigger.
It was pointing right at her.” Defendant told Detective McFarland that he pushed the victim
against the wall and that the gun discharged as she pushed him back. Finally, at trial,
Defendant testified that he and the victim struggled in the kitchen and that he was holding
her arms as she pushed off the wall against him. He claimed that both of them were on
their feet when the gun discharged and fell to the floor. However, the jury rejected
Defendant’s explanation at trial , as it was inconsistent with the physical evidence. The
medical examiner testified that based on tests performed by Special Agent Broadhag, the
muzzle of the pistol was approximately twelve inches from the victim’s face when the gun
discharged. The path of the bullet went from front to back with “injuries of [the victim’s]
mandible which is the bottom jawbone, the larynx which is the voice box, and the spine,”
where the bullet lodged. “[T]he bullet went directly from front to back.” The medical
proof was not consistent with any of Defendant’s explanations as to how the shooting
occurred.
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At no point did Defendant attempt to render aid to the victim other than to call 911
at some point and say that the victim was being aggressive and that he thought she was
going to shoot him. The body camera footage shows that the kitchen light was turned off
when officers arrived at the apartment. Defendant told the 911 operator that the victim
shot herself, and he repeatedly lied about the gun during the call. Defendant claimed that
he did not know the address of the victim’s apartment and had to go to a neighbor’s house
to get the address, even though he had just driven himself there. There was also evidence
presented that shortly before the shooting, Defendant searched the internet on his phone
for information on “limits on self-defense” and “killing someone in self[-]defense while on
probation.” Defendant told Detective McFarland that he was on probation at the time of
the shooting. He also wrote a letter to several individuals after his arrest in this case asking
them to find a witness to falsely testify on his behalf at trial and to edit the internet search
history on his phone.
Defendant contends that the evidence at trial “is entirely consistent with [his]
explanation of how this shooting occurred.” He correctly points out that no gunshot residue
was found on his hands, that his DNA was not found on the gun or under the victim’s
fingernails, that no latent fingerprints were found on the gun, and there was no blood spatter
on his clothing. However, the jury heard this evidence, and as was its prerogative, found
that it did not prove Defendant’s innocence.
We conclude that a rational jury could have determined beyond a reasonable doubt
that Defendant killed the victim intentionally and with premeditation. Therefore, the
evidence is sufficient to support Defendant’s first-degree murder conviction, and he is not
entitled to relief on this issue.
II. Admission of L.M.’s Statements to the Forensic Interviewer
Defendant argues that the trial court “failed to consider the applicability of
Chambers v. Mississippi, [410 U.S. 284 (1983),]” in determining whether L.M.’s statement
during his forensic interview was admissible and that he could have “admitted this
exculpatory interview into evidence, and it is highly likely that this exculpatory interview
would have changed the outcome of this trial.” The State contends that the issue as to
Chambers is waived because Defendant has raised it for the first time on appeal and that
the trial court properly determined that L.M.’s statement was hearsay, and no exception to
the hearsay rule applied to allow its admission. The State further argues that the statement
was not admissible under Chambers.
Before presentation of the evidence at trial, the State made an oral motion in limine
“to exclude any reference to statements made of [L.M.], the child in this matter, to
Childhelp and specifically forensic examiner Kelly Sanders.” The State argued that any
statements made by L.M. during the interview would be hearsay with no applicable
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exception. Defense counsel asserted that the statement would be “an excited utterance,
given the nature of the situation,” referring to a recording from Deputy Bryant’s patrol car
video. The trial court pointed out that the parties were referring to two different statements
made by L.M. and noted that the body cam footage was already “in evidence with the
limitations that was set forth yesterday.” Concerning the forensic interview, the State
informed the trial court that L.M.’s statement was given to the forensic interviewer on April
17, 2018, the day after the shooting and pointed out that the interview notes stated that
“[t]he child was not very verbal and the extent of what he said could be reduced . . . [t]o
‘Mama is dead and mama had a pink gun.’”
The trial court did not rule on the motion in limine and stated:
Okay. Well, as it relates to Childhelp interview, I mean on its face I
think we’re certainly talking about hearsay here. The defense is
claiming the exception applies because its an excited utterance. I
haven’t seen the tape, so I don’t have any way of knowing whether
it is or is not an excited utterance. So I’m unable to rule on that
particular point at this time. So I would ask that neither party
mention it going forward until we have an opportunity for me to look
at the tape and see what, if any, hearsay exceptions might apply to
the Childhelp interview. So I guess I’ll reserve ruling on the State’s
motion as it relates to that.
At trial, Defendant abandoned the excited utterance argument and in his brief on appeal
concedes that the exception would not apply in this case to the statement L.M. made in the
forensic interview. He did not make any further attempt to introduce L.M.’s statement at
trial. Defendant does not argue that any other hearsay exception applies here.
On appeal, Defendant argues for the first time that L.M.’s statement to the forensic
interviewer should have been considered by the trial court in accordance with ruling of the
United States Supreme Court in Chambers. However, issues raised for the first time on
appeal are waived. See Tenn. R. App. P. 36 (a); State v. Herbison, 539 S.W.3d 149, 164
(Tenn. 2018) (“[t]o preserve the double jeopardy issue, [the defendant] had to raise it in his
motion for new trial and appellate brief”).
Defendant argues that “failure by the trial court to consider the applicability of
Chambers v. Mississippi, as well as the trial court’s insistence that a traditional hearsay
exception must apply in order for it to consider admitting the forensic interview into
evidence, constitutes plain error that has affected the substantial rights of [Defendant].” To
demonstrate plain error, Defendant must show that: (1) the record must clearly establish
what occurred in the trial court; (2) a clear and unequivocal rule of law was breached; (3)
a substantial right of the accused was violated; (4) the accused did not waive the issue for
tactical reasons; and (5) consideration of the error is necessary to achieve substantial
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justice. State v. Rimmer, 623 S.W.3d 235, 255-56 (Tenn. 2021), reh’g denied (May 21,
2021), cert. denied, 142 S. Ct. 790 (2022) (citing State v. Martin, 505 S.W.3d 492, 504
(Tenn. 2016). “[A]n appellate court need not consider all criteria when the record
demonstrates that one of them cannot be established.” State v. Vance, 596 S.W.3d 229,
254 (Tenn. 2020).
Defendant did not include the Childhelp interview in the record at trial or on appeal
and failed to provide an offer of proof at trial from the forensic interviewer. Additionally,
at trial, Defendant failed to show that L.M.’s statement to the forensic interviewer had
sufficient indicia of reliability. After the trial court indicated that it would have to review
the interview and reserved ruling on the matter, Defendant failed to pursue the issue further.
He made no argument at trial that the statement was admissible in accordance with
Chambers. Because we do not have a sufficient record from which we can analyze this
issue and cannot conclude that “a clear and unequivocal rule of law” was breached in this
case, we cannot review this issue under the plain error doctrine. Rimmer, 623 S.W.3d at
255-56. Defendant is not entitled to relief on this issue.
III. Admission of Evidence From Google Searches5
Tennessee Rule of Evidence 401 defines “relevant evidence” as “evidence having
any tendency to make the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without the evidence.”
Generally, relevant evidence is admissible, while irrelevant evidence is inadmissible.
Tenn. R. Evid. 402. However, relevant evidence may be excluded if its probative value is
“substantially outweighed by the danger of unfair prejudice.” Tenn. R. Evid. 403.
It is well-established “that trial courts have broad discretion in determining the
admissibility of evidence, and their rulings will not be reversed absent an abuse of that
discretion.” State v. McLeod, 937 S.W.2d 867, 871 (Tenn. 1996). Tennessee Rule of
Evidence 404(b) permits the admission of evidence of prior conduct if the evidence of other
acts is relevant to a litigated issue such as identity, intent, or rebuttal of accident or mistake,
and the probative value outweighs the danger of unfair prejudice. Tenn. R. Evid. 404(b)
Advisory Comm’n Cmts.; see State v. Parton, 694 S.W.2d 299, 303 (Tenn. 1985); State v.
Hooten, 735 S.W.2d 823, 824 (Tenn.Crim.App. 1987). However, “[e]vidence of other
crimes, wrongs, or acts is not admissible to prove the character of a person in order to show
action in conformity with the character trait.” Tenn. R. Evid. 404(b). Before admitting
evidence under Rule 404(b), the rule provides that (1) upon request, the court must hold a
hearing outside the jury’s presence; (2) the court must determine that the evidence is
probative on a material issue and must, if requested, state on the record the material issue
and the reasons for admitting or excluding the evidence; (3) the court must find proof of
the other crimes, wrongs, or acts to be clear and convincing; and (4) the court must exclude
5
We have combined Defendant’s Issues III and IV.
- 26 -
the evidence if the danger of unfair prejudice outweighs its probative value. Tenn. R. Evid.
404(b).
A. Failure to Redact Google Searches
First, Defendant contends that “[t]he trial court erred by failing to redact the words
‘on probation’ from the Google searches that were taken from the [d]efendant’s phone by
law enforcement and introduced into evidence at trial.” The State responds that the issue
is waived because Defendant failed to prepare a proper record for review.
The record shows that Defendant filed a pretrial motion in limine to preclude the
State from making reference to Defendant’s prior criminal history. Defendant specifically
sought to exclude “any reference to [his] searches on his phone regarding committing a
crime while on probation.” A hearing on the motion was held, and the trial court took the
matter under advisement. In his brief, Defendant cites to his motion in limine and court
minutes in the record showing that a hearing was held. However, the record does not
include a transcript of the hearing nor does it include any order, written or oral, concerning
the motion. Defendant also makes no reference in his brief to the hearing. Further,
Defendant did not respond to the State’s waiver argument in a reply brief, or request to
supplement the record with the missing transcript. When a party seeks appellate review,
there is a duty to prepare a record which conveys a fair, accurate and complete account of
what transpired with respect to the issues forming the basis of the appeal. State v. Ballard,
855 S.W.2d 557, 560 (Tenn. 1993) (citing State v. Bunch, 646 S.W.2d 158, 160 (Tenn.
1983)). Where the record is incomplete and does not contain a transcript of the proceedings
relevant to an issue presented for review, or portions of the record upon which the party
relies, an appellate court is precluded from considering the issue. Id. at 561 (citing State v.
Roberts, 755 S.W.2d 833, 836 (Tenn. Crim. App. 1988)). Absent the necessary relevant
material in the record, an appellate court cannot consider the merits of an issue. See
T.R.A.P. 24(b). Here, Defendant failed to include the transcript of the hearing on his
motion in limine. Accordingly, we conclude that the issue has been waived and decline to
address its merits.
B. Results of Google Search by Detective McFarland
Defendant argues that the trial court erred by admitting results of a Google search
conducted by Detective McFarland a week after the victim’s murder, as well as the contents
of the top three articles from the Google search.
During Detective McFarland’s testimony, the State moved to admit Exhibits 60
through 74, all related to Defendant’s cell phone contents and history. Defendant objected
only to Exhibit 74, the Google search conducted by Detective McFarland. Defendant did
- 27 -
not object to Exhibit 73 which was the report of cookie data from Defendant’s cell phone.
In a jury-out hearing, the following exchange took place:
[Prosecutor]: Okay. So if you look at 71, Judge, you see in
Exhibit 71 that is an exhibit that’s been introduced as the search
history on the defendant’s phone, and those are items that he
searched, some of which have been deleted. As you can note from
the report, it doesn’t tell us when the actual item was searched, and
so we are relying upon other means for the investigator to testify
about that.
So in conjunction with the web history report and the cookies report,
what the investigator did was he went in those and at Google, to
Google, and googled, “Killing someone in self-defense while on
probation.” And that was what Exhibit 74 started with. It was a
Google search that he did April 23rd, 2018. And the top three
results, Judge, are the top - - when he googled that April 23rd of
2018. Now, this is the link that links this search, “Killing someone
in self-defense while on probation.”
This is why we know he did it in April of 2018 is because the top
three Google results he actually visited those websites. The number
one Google result it comes back to one of the three articles that we
had attached to the Google search and that was “Convicted felon
faces charges for defending self against violent home invasion.”
And we know that that is on his phone because it appears in the
cookies report. It’s going to be 66 through 68. The website being
Learnaboutguns.com, “Convicted felon.” Cookies 66 through 68.
So that, that comes back as the number one Google search and is also
in his cookies for that - - and that date and time. The cookies were
– put it there on April 16th around 7:30.
The second article, Judge, is a direct hyperlink from the web history.
You see in the web history number five has a hyperlink to the article
that was accessed on April 16th, 2018, and it’s also found in his
cookies, 75 through 82, and 86 through 92.
So it’s the number two return when you google the term, “Killing
someone in self-defense while on probation,” and he accessed it
because its in his web history and his cookies.
* * *
- 28 -
[Prosecutor]: All from April 16th. The number three items that
came up in the Google search is number six in his web history, and
it actually is a hyperlink to the website TexasCLH - - CHLforum.
* * *
[Prosecutor]: And it’s also appearing 93, 95 in his cookies. The
remaining items in the Google search that we attempted to get in, we
don’t have any evidence on his phone that he ever hyperlinked
through to them or even accessed them because there’s no cookies
or web history relating to all the rest of the - - we have four pages of
Google search, Judge.
* * *
[Prosecutor]: But we believe that this search that the detective
conducted back in April of 2018 is the link and shows the positive
connection between the search of “Killing someone in self-defense
while on probation,” to prove that that was done April 16th, 2018.
So that was the gravamen and the connection between the web
history, the cookies, and the deleted phrase, “Killing someone in
self-defense while on probation.”
When the Court learned that Exhibit 74 contained links to additional websites which
were not verified to have been accessed by Defendant, it sustained the objection to Exhibit
74, stating: “If there are - - if we have cookies or web history that indicates specific sites
that he actually visited, I think that would be admissible. But I think we need to tie it into
that and we can’t just have all of these links that he may or may not have even seen.” The
State then agreed to redact the report contained in Exhibit 74 to include only the first three
articles that were verified to have been accessed by Defendant’s cell phone through the
cookie report admitted without objection as Exhibit 73.
When the trial resumed, Detective McFarland testified that on April 23, 2018, he
replicated the Google search Defendant made on his phone for “killing someone in self-
defense while on probation.” The top three results included an article from
Learnaboutguns.com, entitled “Convicted Felon Faces Charges for Defending Self Against
Violent Home Invader”; an article from Lawyers.com, entitled “Limits on Self-Defense”;
and an article from Texasschlforum.com, entitled “Probation, stand your ground, peaceful
journey . . .etc.” Detective McFarland testified that the “cookies” report from Defendant’s
phone indicated that the articles were accessed on Defendant’s phone. The trial court then
admitted the redacted version of the report as Exhibit 74 over Defendant’s renewed
objection. The trial court concluded:
- 29 -
I mean as to the fact that the detective singled out certain search
items, I mean obviously this is a homicide investigation so he’s
going to zero in on certain items, you know, “Reap what you sow,”
whatever that means.
Apparently it didn’t have any significance to the investigator, so he
didn’t look into that. We certainly don’t expect him to pull out every
single website that the defendant mentioned, but rather focus on the
ones that might have some relevance to the issue at hand here.
What we do have is a search - - a couple of search terms that the
investigator replicated about a week after the incident. The State had
redacted the search results to list only the three links that the
investigator was able to tie back to the defendant’s phone as websites
that had been visited.
Whether they were in the web history or whether they were in the
cookies portion of the telephone, you know, any argument as to, you
know, whether the defendant actually read them or how much time
he spent reading them. I think that’s an argument that would go
towards the weight that the jury should attach to those, but not
necessarily to their admissibility.
So I am comfortable with the redactions that have been made by the
State that we are limiting this to only the websites that were actually
accessed on that phone, and I think that that would be admissible.
Defendant argues in his brief that the Google search and accompanying articles are
not relevant evidence within the meaning of Tenn. R. Evid. 401 as the search was
conducted a week after the shooting occurred. Defendant also argues that “it is well known
that Google [s]earch results are not static; they can change from day to day.” Thus, there
is no way to know whether the Google search conducted by Detective McFarland using
search terms previously used by Defendant would yield the same results, and therefore
Detective McFarland’s Google search results are irrelevant and inadmissible. Defendant
further argues that even if the search results were relevant, the probative value was
substantially outweighed by the risk of prejudice since the search made reference to
“probation” and may have implied to the jury the Defendant was on probation or may have
been a convicted felon. The State argues that the search results were not speculative
because the evidence presented at trial established that the articles in question were actually
accessed on Defendant’s phone based on the cookies data, and further that the evidence
was relevant to show that Defendant acted with premeditation.
- 30 -
We conclude that the redacted report with the results of the search replicated by
Detective McFarland were relevant to the issue of whether Defendant killed the victim with
premeditation. Through the cookie data admitted without objection in Exhibit 73, the proof
showed that the top three articles that came up as a result of the search were actually
accessed on Defendant’s phone prior to the victim’s death. Other articles that came up as
a result of the search were redacted. The trial court determined that Defendant’s exposure
to the information in the search results went to the weight of the evidence rather than its
admissibility. Because Defendant did not object to Exhibit 73, the cookie data report which
verified Defendant’s access to the articles on his cell phone, there can be no prejudice.
Defendant is not entitled to relief on this issue.
IV. Consecutive Sentencing
Defendant argues that the trial court erred by ordering his life sentence for first-
degree murder to be served consecutively to his prior three-year sentence for aggravated
assault. The State responds that the trial court properly sentenced Defendant.
When an accused challenges the length of a sentence, this court reviews the trial
court’s sentencing determinations under an abuse of discretion standard accompanied by a
presumption of reasonableness. State v. Bise, 380 S.W.3d 682, 707 (Tenn. 2012). “This
abuse of discretion standard, accompanied by a presumption of reasonableness, applies to
within-range sentences that reflect a decision based upon the purposes and principles of
sentencing.” State v. Caudle, 388 S.W.3d 273, 278-79 (Tenn. 2012). See also State v.
Pollard, 432 S.W.3d 851, 859-60 (Tenn. 2013) (standard of appellate review for
consecutive sentencing is abuse of discretion accompanied by a presumption of
reasonableness). A finding of abuse of discretion indicates the “trial court’s logic and
reasoning was improper when viewed in light of the factual circumstances and relevant
legal principles involved in a particular case.” State v. Shaffer, 45 S.W.3d 553, 555 (Tenn.
2001). A trial court has not abused its discretion unless “the record [is] void of any
substantial evidence that would support the trial court’s decision.” Id.
In making sentencing decisions, trial courts must consider the following: (1) the
evidence received at trial and the sentencing hearing; (2) the presentence report; (3) the
principles of sentencing and arguments as to sentencing alternatives; (4) the nature and
characteristics of the conduct involved; (5) evidence and information offered by the parties
regarding the statutory mitigation and enhancement factors set out in Tennessee Code
Annotated sections 40-35-113 and 40-35-114; (6) any statistical information provided by
the administrative office of the courts as to sentencing practices for similar offenses in
Tennessee; (7) any statement the defendant wishes to make on his own behalf; and (8) the
result of the validated risk and needs assessment conducted by the department and
contained in the presentence report. See T.C.A. § 40-35-210(b).
- 31 -
Tennessee Code Annotated section 40-35-115(b) sets forth the criteria the court
shall consider in ordering sentences to run consecutively or concurrently:
(b) The court may order sentences to run consecutively if the court
finds by a preponderance of the evidence that:
(4) The defendant is a dangerous offender whose behavior
indicates little or no regard for human life and no hesitation
about committing a crime in which the risk to human life is
high;
(6) The defendant is sentenced for an offense committed while
on probation;
Id. § 40-35-115(b)(4). See also Gray v. State, 538 S.W.2d 391, 393 (Tenn. 1976). A
defendant may be classified as a dangerous offender if the crimes for which he is convicted
indicate that he has little or no regard for human life and no hesitation about committing a
crime in which the risk to human life is high. Id. See also T.C.A. § 40-35-115(b)(4). The
decision to impose consecutive sentences when crimes inherently dangerous are involved
should be based upon the presence of aggravating circumstances and not merely on the fact
that two or more dangerous crimes were committed. Gray, 538 S.W.2d at 393. To impose
consecutive sentencing based on a finding that the defendant is a dangerous offender, the
court must also find that “an extended sentence is necessary to protect against further
criminal conduct by the defendant and that the consecutive sentences must reasonably
relate to the severity of the offenses committed.” State v. Wilkerson, 905 S.W.2d 933, 939
(Tenn. 1995). The trial court must also make specific findings about “particular facts” that
support the Wilkerson factors. State v. Lane, 3 S.W.3d 456, 461 (Tenn. 1999) (citing
Wilkerson, 905 S.W.2d at 939). So long as the trial court properly articulates reasons for
ordering consecutive sentences, thereby providing a basis for meaningful appellate review,
the sentences will be presumed reasonable and, absent an abuse of discretion, upheld on
appeal. Pollard, 432 S.W.3d at 862.
As set out above, the trial court articulated its reasons for consecutive sentencing
and sentenced Defendant to a within-range sentence that reflect the purposes and principles
of the Sentencing Act. Defendant contends that the trial court erred in finding that he was
sentenced for an offense committed while he was on probation because judicial diversion
“is not the same as probation” for purposes of consecutive sentencing. Defendant cites no
authority in support of his claim. Tennessee Code Annotated section 40-35-313(a)(1)(A)
states, “The court may defer further proceedings against a qualified defendant and place
the defendant on probation upon such reasonable conditions as it may require without
entering a judgment of guilty and with the consent of the qualified defendant.” The plain
language of the diversion statute states that a defendant on diversion is on probation. We
- 32 -
agree with the trial court that Defendant committed the murder in this case while he was
on probation for aggravated assault.
Likewise, the trial court did not abuse its discretion by finding that Defendant was
a dangerous offender whose actions indicated little to no regard for human life and that he
expressed no hesitation about committing a crime in which the risk to human life was high.
The trial court made the requisite Wilkerson findings, and concluded that the circumstances
of the offense were aggravated, that confinement for an extended period of time was
necessary to protect society from further criminal activity from Defendant, and that the
aggregate sentence reasonably related to the seriousness of the offenses. The trial court
properly ordered Defendant to serve his life sentence consecutively to his prior three-year
sentence for aggravated assault. Defendant is not entitled to relief on this issue.
V. Cumulative Error
Defendant contends that he is entitled to a new trial because “cumulative error exits
such that [he] was denied due process of law and a new trial is necessary.” The State
counters that Defendant is not entitled to relief due to cumulative error.
Our supreme court has stated:
The United States Constitution protects a criminal defendant’s right to a
fair trial; it does not guarantee him or her a perfect trial. We have reached
the same conclusion with regard to the Constitution of Tennessee. It is
the protection of the right to a fair trial that drives the existence of and
application of the cumulative error doctrine in the context of criminal
proceedings. However, circumstances warranting the application of the
cumulative error doctrine to reverse a conviction or sentence remain rare.
The cumulative error doctrine is a judicial recognition that there may be
multiple errors committed in trial proceedings, each of which in isolation
constitutes mere harmless error, but which when aggregated, have a
cumulative effect on the proceedings so great as to require reversal in
order to preserve a defendant’s right to a fair trial.
State v. Hester, 324 S.W.3d 1, 76-77 (Tenn. 2010) (citations omitted).
To warrant assessment under the cumulative error doctrine, there must have been
more than one actual error committed in the trial proceedings. State v. Herron, 461 S.W.3d
890, 910 (Tenn. 2015) (citing Hester, 324 S.W.3d at 77). After considering each of
- 33 -
Defendant’s issues on appeal and finding no error, we need not consider the cumulative
effect of any alleged errors.
Conclusion
For the foregoing reasons, the judgment of the trial court is affirmed.
____________________________________
JILL BARTEE AYERS, JUDGE
- 34 - | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482865/ | IN THE SUPREME COURT OF IOWA
No. 21–1115
Submitted October 25, 2022—Filed November 10, 2022
STATE OF IOWA,
Appellant,
vs.
FETHE FESHAYE BARAKI,
Appellee.
Appeal from the Iowa District Court for Woodbury County, John C. Nelson,
District Associate Judge.
The State seeks discretionary review of the trial court’s ruling sustaining
a motion to suppress the results of a chemical breath test. REVERSED AND
REMANDED.
Mansfield, J., delivered the opinion of the court, in which all justices
joined.
Thomas J. Miller, Attorney General, and Zachary Miller (argued), Assistant
Attorney General, for appellant.
Martha J. Lucey, State Appellate Defender, and Vidhya K. Reddy (argued),
Assistant Appellate Defender, for appellee.
2
MANSFIELD, Justice.
I. Introduction.
Before a suspected drunk driver is asked to submit to a chemical breath
test, Iowa law requires that they “shall be advised by a peace officer” of certain
legal consequences. Iowa Code § 321J.8 (2021). In this case, a native speaker of
Tigrinya, a language commonly spoken in Eritrea and parts of Ethiopia, contends
that his breath test should be suppressed because no Tigrinya interpreter was
available and the advisory was read to him in English. We conclude that Iowa
law does not require the impracticable, and that the police officer discharged his
duty by making all reasonable efforts to obtain a Tigrinya interpreter before
reading the advisory to the defendant in English, a language that the defendant
understood to some extent. Accordingly, we reverse the order of the district court
granting the defendant’s motion to suppress and remand for further proceedings.
II. Background Facts and Proceedings.
Shortly before midnight on May 6, 2021, Sioux City Police Officer Michael
Sitzman, while conducting routine patrol, pulled over a vehicle for a red-light
violation and for moving unusually slowly.
The driver of the vehicle was the defendant Fethe Baraki. Baraki is from
Eritrea; his primary language is Tigrinya.
After Officer Sitzman observed that Baraki had signs of impairment,
Officer Colin Scherle was called to the scene. Officer Scherle belonged to the unit
handling operating-while-intoxicated (OWI) investigations. Officer Scherle
noticed that Baraki had “red watery bloodshot eyes along with the odor of alcohol
3
coming from his person.” He also noticed that Baraki “had a pretty distinct
language barrier.” However, Baraki clearly understood many of Officer Scherle’s
questions and commands.
Officer Scherle requested that Baraki exit his car to conduct the
standardized field sobriety testing.1 Without further explanation, Baraki
immediately released his seat belt and got out of the vehicle. Officer Scherle
repeatedly asked Baraki if he had consumed alcohol or drugs throughout the
entirety of the interaction, and Baraki repeatedly denied having done so. Officer
Scherle had Baraki perform the horizontal gaze nystagmus test, which Baraki
failed. Baraki complained of a leg injury and limped throughout the encounter,
but he was unable to explain the particulars of his injury in English.
Baraki could answer in English where he worked, how old he was, where
he came from, and where he was right now (Sioux City). At the same time, he did
not seem to understand when Officer Scherle asked what “state” he was in.
Next, Officer Scherle held up the device used to conduct the preliminary
breath test (PBT) and asked Baraki if he was “willing to do this test” for him.
Baraki agreed. Taking the test took several attempts but Baraki understood
when Officer Scherle corrected him. After the PBT came back over the legal limit,
Baraki was arrested and transported to the Woodbury County Law Enforcement
Center.
1At this point, Officer Scherle’s bodycam reveals that there was a passenger in the front
seat.
4
Upon arrival, Officer Scherle contacted a commercial service known as
LanguageLine that offers on demand interpreters over the phone.2 His goal was
to get a Tigrinya interpreter for the implied consent advisory. While he was on
hold, Officer Scherle entered data from Baraki’s Iowa driver’s license into the
computer. Baraki told Officer Scherle (in English) that his friend was coming,
and Officer Scherle responded, “Unfortunately, you had too much to drink.”
Baraki also initiated other conversation in English.
After being placed on hold for several minutes, Officer Scherle was
informed that no interpreter for Tigrinya was available, and the service did not
know when one would become available.
Officer Scherle consulted with other officers. As he put it, “This was a
unique circumstance that I was never aware of or [had] never been a part of . . . .”
Ultimately, because the chemical test must be offered within two hours, see id.
§ 321J.6(2), Officer Scherle went ahead and read aloud to Baraki the implied
consent advisory in English. Officer Scherle handed Baraki his cell phone and
told him he could call anyone he wanted to determine whether to take the test.
Baraki kept the cell phone for less than two minutes. He tried to make a couple
of calls but did not speak to anyone.3
Officer Scherle then made it clear to Baraki in short sentences in English
that he was asking him yes or no whether he wanted to take the chemical breath
2LanguageLine is one of two telephone interpreter services used by the Iowa Judicial
Branch.
3As noted, there had been a passenger in Baraki’s vehicle and Baraki had twice before
told Officer Scherle that he had a “friend coming” who could get him.
5
test. At this time, Officer Scherle attempted to use an online translator. He was
unable to find an online translation for Tigrinya. Therefore, Officer Scherle again
asked Baraki yes or no whether he wanted to take the test. Baraki confirmed
that he would take the test.4 Officer Scherle did not believe that Baraki
understood the entire advisory, but he believed that Baraki consented to take
the test.
Just before 1 a.m., Baraki provided a breath sample on the DataMaster.
The results indicated a blood alcohol content of 0.114, which is above the legal
limit of 0.08. See id. § 321J.2(1)(b).
On May 20, Baraki was charged by trial information in the Woodbury
County District Court with OWI second offense, an aggravated misdemeanor, in
violation of Iowa Code § 321J.2(2)(b). Baraki waived his speedy trial rights. On
June 8, Baraki filed a motion to suppress the evidence of his blood alcohol
content from the DataMaster test, arguing that he did not understand the
advisory and therefore could not give consent. On July 16, the district court
sustained the motion, stating:
It is the State’s burden to establish by a preponderance of the
evidence that a warrantless search falls within an exception to the
warrant requirement.
The State has failed its burden. The Defendant did not
understand the Implied Consent Advisory and thus could not give
valid consent. Valid consent can only be given if it is done so
knowingly and in this instance it was not. Office[r] Scherle did
nothing wrong. He had no other options. The court sustains the
motion and the results of the Datamaster are hereby suppressed
4The record indicates that Baraki had a prior 2020 conviction for OWI.
6
and the State is prohibited from using the same as evidence at any
upcoming trial herein.
(Citation omitted.) The State filed an application for discretionary review. We
granted that application.
III. Standard of Review.
When evaluating whether a submission to chemical testing was voluntary,
we review the totality of the circumstances. State v. Overbay, 810 N.W.2d 871,
875 (Iowa 2012) (citing State v. Garcia, 756 N.W.2d 216, 219 (Iowa 2008)). Our
review of the circumstances is de novo. Id. Thus, “we make an independent
evaluation based on the entire record.” Id. (citing State v. Ochoa, 792 N.W.2d
260, 264 (Iowa 2010)). “We give considerable weight to the district court’s
assessment of voluntariness but are not bound by its factual findings.” Id.
Regarding any statutory interpretation, we review for correction of errors at law.
State v. McGee, 959 N.W.2d 432, 436 (Iowa 2021).
IV. Analysis.
A. The Garcia Test and the Reasonableness Standard. Iowa, like other
states, has an implied consent law. See Iowa Code § 321J.6. It provides that a
person who operates a motor vehicle in such a manner to “give reasonable
grounds” to believe that the person is intoxicated “is deemed to have given
consent to the withdrawal of specimens of the person’s blood, breath, or urine.”
Id. § 321J.6(1).
The implied consent law nonetheless gives the potentially intoxicated
driver a choice. In lieu of taking the chemical test, the driver may refuse a breath
test, and thereby suffer the revocation of their driver’s license for a period of time
7
and the admission into evidence of their refusal. See id. §§ 321J.9(1), .16. “[T]he
choice can be a difficult one because consenting to the breath test may reveal a
blood alcohol level above the legal limit (.08 percent), making a criminal
conviction more likely, while refusing the test carries administrative (revocation
of driver’s license) and evidentiary consequences.” State v. Kilby, 961 N.W.2d
374, 377 (Iowa 2021). The choice is not constitutionally required for a breath test,
which can be upheld anyway as a search incident to arrest. Id. at 383 (“Kilby
has no constitutional right to refuse a breath test as a search incident to her
arrest.”). But it is statutorily required. See Overbay, 810 N.W.2d at 876
(“Although drivers are deemed to have impliedly consented to testing, they
nonetheless generally have the statutory right to withdraw that consent and
refuse to take any test.”). “Upon a failure to comply with the set standards of our
implied consent law the evidence becomes inadmissible.” State v. Jensen, 216
N.W.2d 369, 374 (Iowa 1974); see Iowa Code § 321J.8.
Iowa law provides that the motorist “shall be advised by a peace officer” of
the consequences on their driver’s license of both (1) refusing to submit to testing
and (2) testing above the legal limit. Iowa Code § 321J.8(1). Previously, in State
v. Garcia, we interpreted Iowa Code section 321J.8 and addressed the issue of
implied consent as it applies to non-English speakers. 756 N.W.2d 216. We noted
that “[o]ther jurisdictions have taken differing approaches to resolving this
issue.” Id. at 221. Some states require “only the warning be given, not that the
driver understand the consequences of refusal.” Id. Some states “have
determined that the driver need only understand that he or she has been asked
8
to take a test. There is no requirement that the driver understand the
consequences of refusal or be able to make a reasoned judgment.” Id.
We adopted neither of these approaches, but instead adopted an approach
urged on us by the defendant—Wisconsin’s reasonableness standard. Id. at 221–
22. This standard requires the officer “under the circumstances facing him or
her at the time of the arrest, to utilize those methods which are reasonable, and
would reasonably convey the implied consent warnings.” Id. at 221 (quoting State
v. Piddington, 623 N.W.2d 528, 534–35 (Wis. 2001)).
Garcia involved a Spanish speaker who told the officer he did not
understand English, but demonstrated an ability to answer the officer’s spoken
questions in English. Id. at 218–19. The officer did not attempt to communicate
the implied consent advisory in Spanish. Id. at 219. After the officer read the
implied consent advisory aloud and asked the defendant if he understood, the
defendant said he would do what the officer wanted, “no problem.” Id. The district
court overruled the defendant’s motion to suppress, concluding that the
defendant “has some understanding of English.” Id.
We affirmed the denial of the motion to suppress, reasoning as follows:
“Applying the ‘reasonable efforts’ standard to the facts and circumstances of this
case, we hold that Officer Strunk, under the circumstances facing her at the time
of the arrest, utilized reasonable methods to reasonably convey the implied
consent warnings to Garcia.” Id. at 223.
B. Applying the Garcia Reasonableness Standard to This Case. On our
de novo review of the record, we find that Baraki, like the defendant in Garcia,
9
had some understanding of English. He answered many of Officer Scherle’s
spoken questions briefly in English. We have no doubt that Baraki understood
he had been arrested for OWI and was being asked to agree to provide a breath
sample to measure his level of intoxication. We believe he understood he had a
choice whether or not to provide the sample, and agreed to do so. We do not
believe he understood the entire implied consent advisory, which includes an
explanation of the specific consequences of refusing the test as compared to the
consequences of taking it and failing it.
We also agree with the district court’s finding that “Office[r] Scherle did
nothing wrong. He had no other options.” Officer Scherle tried to get a Tigrinya
interpreter. He tried to see if he could use Google’s translation service on the
implied consent advisory. He gave Baraki his cell phone and told him he could
call “anyone”—i.e., not just the persons listed in Iowa Code section 804.20.5
So, we need to decide what happens when an officer does everything they
can to communicate the implied consent advisory in a manner that the motorist
5Iowa Code section 804.20 provides,
Any peace officer or other person having custody of any person arrested or
restrained of the person’s liberty for any reason whatever, shall permit that
person, without unnecessary delay after arrival at the place of detention, to call,
consult, and see a member of the person’s family or an attorney of the person’s
choice, or both. Such person shall be permitted to make a reasonable number of
telephone calls as may be required to secure an attorney. If a call is made, it shall
be made in the presence of the person having custody of the one arrested or
restrained. If such person is intoxicated, or a person under eighteen years of age,
the call may be made by the person having custody. An attorney shall be permitted
to see and consult confidentially with such person alone and in private at the jail
or other place of custody without unreasonable delay. A violation of this section
shall constitute a simple misdemeanor.
See, e.g., State v. Tubbs, 690 N.W.2d 911, 914 (Iowa 2005) (“[T]he statute is satisfied by giving
[the arrestee] the opportunity to call or consult with a family member or an attorney.”).
10
will understand, but due to a language barrier that could not be overcome the
motorist presumably did not understand the complete advisory.
Baraki argues that at the end of the day, if the officer despite all efforts
cannot deliver the implied consent advisory to a non-English speaker in a
manner that they would comprehend for the most part, no testing is permissible.
Thus, the non-English speaker would suffer neither the consequences of refusing
to take the test nor the consequences of taking the test and failing it. Baraki
focuses on the language “reasonably convey” as used in Garcia and argues that
ultimately reading something in English to someone who does not understand
the language well is not a reasonable conveyance of information. Baraki directs
us to our prior statement in Garcia that “the purpose of Iowa Code section 321J.8
within the statutory scheme is to advise accused drivers of the consequences of
submitting to or failing the chemical test.” 756 N.W.2d at 222. Advising of the
consequences, in Baraki’s view, requires that the information be conveyed to the
motorist in a manner the motorist can truly understand.
We decline to adopt this position for several reasons. First, other verbiage
in Garcia specifically rejects Baraki’s position. Id. Elsewhere, Garcia makes it
clear that a non-English speaker should not receive an exemption from chemical
testing or the consequences of refusing to submit to chemical testing that no
English speaker would receive, just because an interpreter is unavailable. Id. In
Garcia, we quoted Piddington as follows, “That a law enforcement officer must
use reasonable methods to convey the implied consent warnings does not mean
the officer must take extraordinary, or even impracticable measures to convey
11
the implied consent warnings.” Id. (quoting Piddington, 623 N.W.2d at 542).
Quoting another case, we added, “Although making an interpreter available
when possible is desirable, finding an interpreter is not absolutely necessary and
should not ‘interfere with the evidence-gathering purposes of the implied consent
statute.’ ” Id. at 222 (quoting Yokoyama v. Comm’r of Pub. Safety, 356 N.W.2d
830, 831 (Minn. Ct. App. 1984)).
Second, a requirement that the implied consent advisory be “reasonably
conveyed” to the motorist in the sense that Baraki uses the term would come
close to a subjective test. It would make the validity of the advisory turn on what
this motorist likely would have understood. Baraki’s logic might require law
enforcement to make adjustments to the motorist’s cognitive limitations, or to
take special measures when reading the implied consent advisory to motorists
who appear to be especially intoxicated, in order to “reasonably convey” to them
the gist of the advisory. This goes against the overall thrust of Garcia, which is
only to require the officer to take reasonable steps. As we said a few years later
in State v. Lukins, summarizing the holding of Garcia, “A peace officer need only
use reasonable methods, under the circumstances, to convey to a drunk-driving
suspect the implied consent warnings.” 846 N.W.2d 902, 908 (Iowa 2014) (citing
Garcia, 756 N.W.2d at 222).6
6We think the district court applied a version of a subjective test here. As noted, it
concluded that the motion to suppress should be granted because “[t]he Defendant did not
understand the Implied Consent Advisory.” Garcia does not support such an approach based on
the defendant’s subjective understanding. Indeed, the district court did not mention Garcia at
all in its ruling.
12
Third, while we find it unlikely that Baraki understood the relative legal
consequences of taking and refusing the chemical test, the legislature has
acknowledged the existence of that issue for all motorists and has addressed
that issue by giving all motorists a limited right to consult with counsel before
deciding whether to take the test. See Iowa Code § 804.20; State v. Senn, 882
N.W.2d 1, 7 (Iowa 2016) (“[W]e read section 804.20 together with the implied-
consent provisions of Iowa Code chapter 321J.”). Officer Scherle provided Baraki
with a more generous consultation right than section 804.20 actually affords.
After reading the implied consent advisory, Officer Scherle handed Baraki his
cell phone and told him he could call “anyone”—including presumably someone
to help him translate the implied consent advisory. Baraki tried for less than two
minutes.
There is also a concern that Baraki’s approach would result in two
disparate legal regimes. Apparently, intoxicated motorists whose English is
limited and for whom no interpreter is available would not have to undergo
breath testing at the peril of losing their driving privileges. This would put this
category of motorists in a better legal position than all other motorists. We doubt
the legislature intended this result when it adopted the terminology, “shall be
advised,” which is the focus of our interpretive efforts here and in Garcia. See
Iowa Code § 4.6 (discussing rules for interpreting ambiguous statutory
language).
Additionally, it bears emphasis that the implied consent procedure is not
constitutionally required in the circumstances present here, see Kilby, 961
13
N.W.2d at 382–83; the question is simply one of statutory interpretation. Baraki
clearly understood that he had a choice to test or not to test, and clearly chose
to test, even though he likely did not appreciate all the legal ramifications of each
option. Lastly, as one court observed,
[R]equiring that officers advise drivers of the implied consent rights
in their native language would impose severe administrative costs in
that officers would have to be equipped to issue warnings in any and
every language spoken by drivers in this State or would have to have
access to an interpreter to issue the warnings. The logistics of such
a requirement would be extremely problematic in a society as
pluralistic and diverse as the United States.
Rodriguez v. State, 565 S.E.2d 458, 462 (Ga. 2002). Although access to
interpreter services is undoubtedly better now than in 2002, it is not perfect.
In sum, we read Garcia as adopting a general reasonable-efforts standard:
when a motorist has demonstrated limited English proficiency, law enforcement
must make reasonable efforts to have the implied consent advisory interpreted
into a language in which the motorist is fluent. We do not adopt Baraki’s selective
reading of Garcia that oversimplifies the opinion. Thus, we conclude that Officer
Scherle complied with Iowa Code section 321J.8 by making reasonable efforts
and using reasonable methods under the circumstances to convey to Baraki the
implied consent advisory.
V. Conclusion.
For the reasons stated, we reverse the ruling of the district court granting
Baraki’s motion to suppress and remand for further proceedings consistent with
this opinion.
REVERSED AND REMANDED. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482863/ | IN THE SUPREME COURT OF IOWA
No. 21–0487
Submitted October 12, 2022—Filed November 10, 2022
STATE OF IOWA,
Appellee,
vs.
RICK D. PETRO,
Appellant.
On review from the Iowa Court of Appeals.
Appeal from the Iowa District Court for Warren County, Kevin A. Parker,
District Associate Judge.
Defendant seeks further review of a court of appeals decision that affirmed
the district court’s extension of a no-contact order. DECISION OF COURT OF
APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED AND
REMANDED.
Mansfield, J., delivered the opinion of the court, in which all participating
justices joined. May, J., took no part in the consideration or decision of the case.
Karmen R. Anderson (argued) of Anderson & Taylor, P.L.L.C., Des Moines,
for appellant.
Thomas J. Miller, Attorney General, Linda J. Hines (argued), Assistant
Attorney General, for appellee.
2
MANSFIELD, Justice.
I. Introduction.
In this appeal, we review a decision to extend a no-contact order. This is
the third such extension; the no-contact order was originally entered after a
serious incident of domestic violence in 2009.
No-contact orders are an essential tool in protecting victims of domestic
abuse. However, our legislature has recognized that these orders do, in fact, limit
the activities of the persons who are subject to them and thus has directed that
the extension should be denied if “the court finds that the defendant no longer
poses a threat to the safety of the victim.” Iowa Code § 664A.8 (2021). Here,
considerable time had elapsed since the incident, the defendant had gone
through therapy and other programming, the defendant had not violated the
terms of the order in the prior ten years, and the parties had not interacted with
each other within that ten-year frame. We conclude that the defendant carried
his burden of showing that he no longer posed a threat to the safety of the victim
and that substantial evidence does not support the district court’s latest
extension.
Accordingly, we reverse the district court’s ruling, we vacate the decision
of the court of appeals, and we remand to the district court for further
proceedings consistent with this order.
II. Facts and Procedural History.
On August 23, 2009, Rick Petro was at home with his wife S, their
thirteen-year-old daughter, and their eleven-year-old son. Petro became upset
3
over the number of biscuits the daughter was eating for lunch because Petro had
not gotten any the last time. Petro’s wife S tried to intervene and express her
views, but Petro responded by turning violent. He knocked S down and
repeatedly beat her with his fists in the presence of the two children. When the
son began to call the police, Petro threatened to kill S and the son.
Following the arrival of the police, Petro was arrested and taken to jail. A
temporary order was entered prohibiting Petro from having contact with S. Later,
Petro was charged in the Warren County District Court with domestic abuse
assault causing bodily injury, a serious misdemeanor, and harassment in the
first degree, an aggravated misdemeanor. Petro apparently had no regular
employment. Because of his lack of funds, the court appointed him counsel.
In December, Petro agreed to plead guilty to assault causing bodily injury,
as amended, a serious misdemeanor. See Iowa Code § 708.2(2) (2009). He
admitted, “I struck [S] with an open hand on upper left arm near shoulder
causing pain and redness.” A month later, on January 26, 2010, Petro received
a deferred judgment, was put on probation for one year, and was ordered to
complete the Batterer’s Education Program. Additionally, a one-year no-contact
order with S was entered.1
A few months after that, Petro stated to a social worker that if his wife
didn’t “keep her mouth shut [he was] going to take a f[******] ball bat to her head.”
This violated the terms of his probation; the deferred judgment was revoked,
1As required by federal law, the order prohibited Petro from possessing firearms. See
18 U.S.C. § 922(g)(8).
4
Petro received a one-year suspended sentence and probation, and he was
ordered to attend therapy.
At the beginning of 2011, S moved for an extension of the no-contact order.
Following a hearing, the court ordered a five-year extension. Approximately two
months later, during a hearing on the termination of Petro’s parental rights,
Petro addressed S directly and said, “Why are you doing this to me?” This was a
violation of the no-contact order and the terms of Petro’s probation. The district
court found Petro in contempt and sentenced him to two days in jail.
Additionally, Petro’s parental rights to his son and daughter were terminated.
Petro completed the Batterer’s Education Program and was discharged
from probation. Several years passed and, at the beginning of 2016, S moved for
another extension of the no-contact order. Her application explained that she
“would like the no-contact order extended for as long as possible.” Within a few
hours of S’s filing for the extension—and without awaiting a response—the
district court extended the no-contact order for five years, through February 8,
2021.
Petro moved for reconsideration, and the court held an evidentiary
hearing. Petro’s testimony was notably prickly. For example:
Q. Do you want to have contact with [S]?
A. None. I want her out of my life just as much as she wants
me out of hers. I just want to move on.
....
Q. And how many years were you married to her?
A. I don’t remember. Three? Five? Too many.
5
....
Q. What have you done to demonstrate to this Court that you
have overcome the anger issues that led you to assault [S]?
A. Well, first of all, I haven’t been in any trouble since this
incident. And right now, I believe I’m more calm and controlled than
you are.
....
Q. What are you doing to address the mental health diagnoses
you received in April of 2010?
A. Well, I’m still seeking counseling, and that’s about it. I don’t
necessarily think the current medical evaluations are any of your
business.
Following the hearing, the district court declined to reconsider the five-year
extension. The court explained:
A determination as to the safety of [S] is required in this matter. Rick
Petro was convicted of assault and two violations of the original No
Contact Order. Petro stated that he wants “[S] out of his life” and
that he was “married too long to [S].”
The Court finds that Petro is still a threat to the safety of [S].
Petro appealed the extension. We transferred his appeal to the court of appeals,
which affirmed the district court, reasoning in part as follows:
The district court did not find evidence in this record to disprove the
existence of a continued threat to [S]’s safety. The court pointed to
[Petro]’s original act of domestic violence in 2009 and his two
violations of the no-contact order in 2010 and 2011. The court also
highlighted two disparaging references to his relationship with [S]
from [Petro]’s testimony at the 2016 hearing, specifically that he
wanted her “out of his life” and that they were married “too long.”
[Petro] argues the district court took these references out of
context, and he characterizes them as “innocuous statements that
are often heard as response from one that had been married and is
now divorced.” While the statements may have more than one
connotation, we defer to the trial court—it had the chance to hear
6
the tone and observe the demeanor of the witness when he
expressed these negative views regarding the protected party.
We also find other aspects of [Petro]’s testimony support the
district court’s findings. For instance, when asked about the
ball-bat-to-the-head threat he made toward [S], he minimized the
incident as follows: “During a supervised visit with my son, the DHS
worker thought I said something that was inappropriate.” [Petro]
also blamed “bad advice” from his attorney for the courtroom
confrontation with [S] that constituted the second violation of
the no-contact order. These examples of his defensive posturing are
inconsistent with any true appreciation of the hazard he has posed
to his former wife.
State v. Petro, No. 16–1215, 2017 WL 1735894, at *3 (Iowa Ct. App. May 3, 2017).
On February 5, 2021, S again applied for an extension of the no-contact
order. Without awaiting a response, the district court granted the extension on
February 7. That same day, Petro filed a resistance to S’s application and asked
that the extension request be either denied or set for an evidentiary hearing.
Upon learning that the extension had already been granted, Petro filed a motion
for reconsideration on February 9.
The district court held an evidentiary hearing on March 26 at which both
S and Petro testified. There, S acknowledged that Petro had not violated the
no-contact order since 2011. She mentioned an incident where Petro’s parents
had stopped by her house and taken pictures of items set out for a garage sale,
but the record indicates that this incident occurred in 2011. S also mentioned
seeing Petro once in a Chinese restaurant, an incident that prompted her to leave
the restaurant immediately. However, S did not testify that Petro saw her at the
restaurant. And Petro had no recollection of the incident.
7
By the time of this 2021 hearing, Petro was fifty-nine years old and had
been employed as a trucker hauling jet fuel for the last five years. Petro testified
that he had completed six or seven years of therapy. He lived in the same town
as S but out in the country and wanted to be able to use firearms to hunt. He
had not tried to communicate with S since the April 2011 violation that occurred
at the termination hearing. Petro agreed that if he saw S, he would be the one
that would have to leave.
At the conclusion of the hearing, the district court approved another
five-year extension of the no-contact order to 2026. The court reasoned,
A determination as to the safety of [S] is required in this
matter. Rick Petro was convicted of assault and two violations of the
original No Contact Order. [S] testified that the defendant’s parents
have driven by [S]’s home without cause and she believes that the
defendant had sent them there. The defendant testified that the time
of the termination of his parental rights were the worst days of his
life. The court is concerned that the defendant also wants his rights
to bear arms reinstated (albeit as to hunting).
Petro appealed, and we transferred the case again to the court of appeals.
A divided panel of the court of appeals affirmed the district court.2 The majority
found substantial evidence to support the district court’s ruling, pointing to S’s
“testimony that [Petro]’s parents have driven by her home without cause and her
belief that [Petro] sent them there.” The majority also cited the district court’s
concern about Petro’s “desire to have his right to bear arms reinstated.” The
2The State disputed whether the order granting the extension was an appealable final
judgment. See Iowa Code § 814.6(1)(a). Nonetheless, the State conceded that Petro’s notice of
appeal could be treated as a petition for certiorari. In light of that concession, the court of appeals
treated the notice of appeal as an application for discretionary review and granted the
application.
8
dissenting court of appeals judge concluded there was no substantial evidence
to support the extension, emphasizing the undisputed evidence that the incident
involving Petro’s parents occurred before 2016.
We granted Petro’s application for further review to consider further the
standards for extending no-contact orders.
III. Standard of Review.
We review questions of statutory interpretation of Iowa Code chapter 664A
for errors at law. Vance v. Iowa Dist. Ct., 907 N.W.2d 473, 476 (Iowa 2018). A
court’s factual findings with respect to a no-contact order should be sustained
when supported by substantial evidence. Id.
IV. Legal Analysis.
Iowa Code section 664A.8 provides the authority for extending no-contact
orders. It states:
Upon the filing of an application by the state or by the victim
of any public offense referred to in section 664A.2, subsection 1
which is filed within ninety days prior to the expiration of a modified
no-contact order, the court shall modify and extend the no-contact
order for an additional period of five years, unless the court finds
that the defendant no longer poses a threat to the safety of the
victim, persons residing with the victim, or members of the victim’s
family. The number of modifications extending the no-contact order
permitted by this section is not limited.
“[T]he clear purpose of section 664A.8 is to grant the court express authority to
extend the duration of no-contact orders when the circumstances require
continuing protection.” Ostergren v. Iowa Dist. Ct., 863 N.W.2d 294, 299 (Iowa
2015).
9
A few years ago, in Vance v. Iowa District Court, we discussed the standards
for extending no-contact orders under section 664A.8 and, ultimately, reversed
an extension. 907 N.W.2d at 481–83. The defendant there had been convicted of
third-degree harassment, a simple misdemeanor. Id. at 475. Our appellate
record was “largely devoid of any evidence explaining the underlying conduct
that gave rise to the civil no-contact order,” but it apparently involved the
defendant’s unsolicited and unreciprocated texts, tweets, and phone calls. Id. at
482–83. After the order had been in effect for a year, the State sought to extend
it for five more years pursuant to section 664A.8. Id. at 475.
The parties in Vance agreed that the defendant had fully complied with the
no-contact order during the year in question. Id. at 483. Additionally, a police
officer testified that the defendant “had never been prone to violence or posed a
threat to the safety of anyone in the community.” Id. The only interaction
between the defendant and the protected parties during the year in question had
been “a coincidental encounter at the local gas station.” Id. One of the protected
parties testified that she wanted the no-contact order extended because she
feared the situation with the defendant would otherwise go back to the way it
was before. Id. at 475.
Under these circumstances, we concluded in Vance that the record showed
no substantial evidence “to support the finding . . . that Vance continued to pose
a threat to the [family]” and that “[t]o the contrary, the substantial evidence in
the record clearly demonstrates that Vance does not pose a continued threat to
the Staudt family warranting an extension of the no-contact order.” Id. at 483.
10
Accordingly, we reversed the district court’s decision to extend the no-contact
order. Id.
Several observations we made about section 664A.8 in Vance are relevant
here. First, the defendant has the burden of proof to demonstrate by a
preponderance of the evidence that they no longer pose a threat to the protected
party. Id. at 482. “Consequently, if the defendant proves by a preponderance of
the evidence that he or she no longer poses a threat to the protected persons,
the court should not extend the no-contact order for an additional five years.”
Id.
Second, we made clear we were not holding “that mere compliance with
the terms of a no-contact order, while important, should by itself foreclose the
possibility of the extension of a no-contact order.” Id. at 483. We further noted
how “[t]his would be particularly true if the original conduct at issue involved
violence or the threat of violence.” Id.
This case, of course, involves different circumstances. The most important
difference is that Petro committed a crime of violence against his ex-wife. Another
difference is that two five-year extensions have already been in effect, and Petro
has not violated the no-contact order during that time—although he did violate
it before.3
3S testified that she saw Petro in a Chinese restaurant. As in Vance, we do not consider
such a “coincidental encounter” a violation of the no-contact order. 907 N.W.2d at 483. It appears
the district court and the court of appeals here did not consider it a violation either. We note that
both Petro and S have been living in the same town of 4,160 persons, yet S could recall only one
accidental sighting of Petro over the last five years.
11
When the no-contact order was originally entered, Petro had recently
beaten S, had repeatedly threatened her, and owned a gun collection (which the
sheriff had seized). When the no-contact order was first extended for five years,
these events were still in the near past. Also, Petro had violated the terms of his
probation by making another threat toward S; this led to his deferred judgment
being revoked.
When the second five-year extension was being sought in 2016, the district
court and the court of appeals shifted focus in large part. They emphasized,
justifiably, Petro’s persistently hostile attitude toward S and his minimization of
the prior no-contact order violations as exemplified by his testimony at the 2016
hearing.
Now, more than ten years have elapsed since any violation of the
no-contact order. Petro is fifty-nine years old, S is sixty-one, and they have been
divorced and living their own lives without any communication for over a decade.
The children are grown. Petro has been regularly employed as a truck driver by
the same employer for over five years. He completed the Batterer’s Education
Program as well as six or seven years of individual therapy. The gun collection
remained in the sheriff’s custody until it was sold; Petro no longer owns it.
In upholding the third and latest five-year extension of the no-contact
order, the district court and the court of appeals majority cited the incident when
Petro’s parents drove by S’s home and took photographs of items for sale. Yet S
conceded that this incident had occurred prior to the 2016 hearing. In fact, the
record indicates that it occurred in 2011 and that it was raised at the 2016
12
hearing. We agree with the court of appeals dissent that this incident is not
substantial evidence to support the extension of the no-contact order from 2021
to 2026.
The district court and the court of appeals also mentioned Petro’s desire
to have his right to bear arms reinstated so he could hunt. By federal law, a
domestic violence no-contact order of this kind has the effect of prohibiting the
person subject to the order from possessing a gun. See 18 U.S.C. § 922(g)(8).
Specifically, federal law criminalizes the possession of a firearm by a person who
“is subject to a court order that restrains such person from harassing, stalking,
or threatening an intimate partner of such person” provided the order “was
issued after a hearing” and “by its terms explicitly prohibits the use, attempted
use, or threatened use of physical force against such intimate partner.” Id.; see
also Weissenburger v. Iowa Dist. Ct., 740 N.W.2d 431, 436 (Iowa 2007) (holding
that Iowa courts have no authority to modify a domestic abuse no-contact order
to allow the person subject to the order to possess firearms).
Any person with a legitimate reason for possessing a firearm is barred from
doing so while the order remains in place. The order and the firearms restriction
go hand in hand. Thus, the defendant’s desire to have both lifted is an
insufficient ground on its own for concluding that the defendant is still a threat
to the protected party. Rather, the relevant question should be what the
13
remainder of the record shows as to whether the defendant would constitute a
threat to S at this point if allowed to possess a firearm.4
Lastly, the district court referred to Petro’s testimony where he described
the termination of parental rights hearing as “[a]rguably the worst day of my life.”
In our view, this testimony does not constitute substantial evidence that Petro
poses an ongoing threat to S. We suspect that many people who lost their
parental rights would, in retrospect, have the same feeling. Notably absent from
the 2021 hearing were combative statements like the ones Petro voiced
repeatedly in 2016.5
V. Conclusion.
We conclude that Petro carried his burden of showing that he no longer
poses a threat to S’s safety and that substantial evidence does not support the
contrary conclusion. Therefore, we reverse the decision of the district court to
extend the no-contact order for an additional five years and remand for entry of
an order terminating the no-contact order.
4At oral argument, the State pointed out that even without the order in place, it will
remain illegal for Petro to possess a firearm. That is because federal law also makes it unlawful
for anyone previously convicted of a “misdemeanor crime of domestic violence” to possess a
firearm. 18 U.S.C. § 922(g)(9). As relevant here, a misdemeanor crime of violence is one that “has,
as an element, the use or attempted use of physical force, or the threatened use of a deadly
weapon, committed by a current or former spouse . . . of the victim.” Id. § 921(a)(33)(A). The
United States Supreme Court has held that the word “element” qualifies only “the use [of force],”
and thus the domestic relationship, “while it must be established, need not be demonstrated as
an element of the predicate offense.” United States v. Hayes, 555 U.S. 415, 426 (2009).
The district court may have been referring to the possibility of expungement. See Iowa
Code § 901C.3 (allowing expungement of certain misdemeanors); 18 U.S.C. § 921(a)(33)(B)(ii)
(excluding expunged convictions from the definition of “misdemeanor crime of domestic
violence”). We do not take a definitive position on these unbriefed matters.
5No examples were cited by the district court, and on our review, we find none. Nor did
the district court make any observations about Petro’s demeanor or attitude.
14
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT
JUDGMENT REVERSED AND REMANDED.
All justices concur except May, J., who takes no part. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8482867/ | IN THE SUPREME COURT OF IOWA
No. 21–1146
Submitted September 14, 2022—Filed November 4, 2022
STATE OF IOWA,
Appellee,
vs.
JOHN EDDIE HANES, III,
Appellant.
Appeal from the Iowa District Court for Scott County, Jeffrey D. Bert (plea)
and Joel W. Barrows (sentencing), Judges.
A defendant who filed no motion in arrest of judgment challenges, for the
first time on direct appeal, the validity of his guilty plea to criminal gang
participation on grounds that his plea lacked a factual basis. APPEAL
DISMISSED.
Waterman, J., delivered the opinion of the court, in which Christensen,
C.J., and Mansfield, McDonald, Oxley, and May, JJ., joined. Oxley, J., filed a
concurring opinion. McDermott, J., filed a dissenting opinion.
Jack Bjornstad (argued) of Jack Bjornstad Law Office, Spirit Lake, for
appellant.
Thomas J. Miller, Attorney General, and Genevieve Reinkoester (argued),
Assistant Attorney General, for appellee.
2
WATERMAN, Justice.
In this case, the defendant asks us to create a new exception to the error
preservation rules for challenging a guilty plea on direct appeal. He was charged
with other alleged gang members detained in a car with a loaded rifle and
handgun. The defendant pleaded guilty to criminal gang participation in
exchange for dismissal of a companion charge of being a felon in possession of a
firearm. He was properly advised of the need to file a motion in arrest of judgment
to challenge his guilty plea on appeal but filed no such motion. Instead, his new
appellate counsel filed this direct appeal asking that his plea and conviction be
vacated for lack of a factual basis. The State moved to dismiss the appeal based
on State v. Treptow, 960 N.W.2d 98, 109 (Iowa 2021) (holding the defendant’s
“failure to file a motion in arrest of judgment precludes appellate relief”), and
Iowa Rule of Criminal Procedure 2.24(3)(a). The defendant resisted, arguing for
a new exception based on the district court’s independent obligation to ensure a
factual basis for the guilty plea. We ordered the State’s motion to be submitted
with the appeal and retained the case.
On our review, we dismiss the appeal. District courts have an independent
duty to ensure guilty pleas are supported by a factual basis, and the court has
discretion to arrest a judgment on its own motion. See Iowa R. Crim. P. 2.24(3)(c).
But this defendant admittedly was advised of the requirement to file a motion in
arrest of judgment to preserve the issue for appeal and we again hold that his
failure to do so precludes relief in this direct appeal. See Treptow, 960 N.W.2d at
3
109; see also Iowa R. Crim. P. 2.24(3)(a). 1 Filing the motion alerts the district
court to correct any alleged error or issue a ruling for appellate review. A contrary
holding would nullify rule 2.24(3)(a) and deprive the State of notice to
supplement the record or otherwise address the alleged defect in the plea in
district court before any appeal.
I. Background Facts and Proceedings.
On April 28, 2021, Davenport police detectives were conducting
surveillance at an apartment on Emerald Drive following a gang-related
homicide. The detectives observed a suspect leave the apartment, meet briefly
with the occupants of an older model Cadillac sedan at a nearby gas station, and
return to the apartment. A detective in an unmarked vehicle tailed the sedan as
it drove off and observed the driver make an illegal turn. A marked patrol car
then initiated a traffic stop. A man later identified as John Eddie Hanes III exited
the passenger front seat door and fled on foot. A backseat passenger also fled on
foot. Police arrested both men nearby and detained the driver and another
occupant in the sedan. Police found a loaded handgun in a bag on the front seat
of the passenger side of the vehicle where Hanes had been seated and a loaded
rifle with a pistol grip on the rear seat floor.
Police determined that Hanes and other men in the sedan were affiliated
with a local street gang known as the Mad Max Gang (MMG). Hanes had
1The defendant raises no claim in this direct appeal that his plea counsel provided
ineffective assistance. Iowa Code section 814.7 (2021) “diverts all claims of ineffective assistance
of counsel to postconviction-relief proceedings and requires they be resolved there in the first
instance.” Treptow, 960 N.W.2d at 103 (quoting State v. Tucker, 959 N.W.2d 140, 152 (Iowa
2021)).
4
previously been convicted of third-degree burglary, a class “D” felony, in 2018,
and had multiple prior juvenile adjudications for burglary, possession of firearms
by a felon, theft, and assault. On June 10, the State charged Hanes by trial
information with one count of criminal gang participation in violation of Iowa
Code sections 703.1, 706.1, 706.3, and 723A.2 (2021), a class “D” felony, and a
second count of possession of a firearm by a felon in violation of
section 724.26(1), a class “D” felony.
On July 9, Hanes entered into a plea agreement in which he agreed to
plead guilty to criminal gang participation in exchange for dismissal of the
felon-in-possession count. The written plea agreement identified an additional
sentencing concession: “The State recommends that the Defendant be granted
supervised probation conditioned on his successful completion of the RCF
[(residential correctional facility)]. If the Defendant is not deemed appropriate for
the RCF, then this becomes an open plea and the State may make any
recommendation at sentencing.” The same day, as permitted by COVID-19
supervisory orders, a written plea of guilty was filed, signed by defense counsel,
and signed and initialed by Hanes. 2 He “expressly waive[d] [his] right to be
present and participate in an in-court plea colloquy.” The written plea stated in
part:
7. I understand that in order to establish my guilt[] of the
crimes charged, the State would have to prove beyond a reasonable
doubt all of the following elements:
2See generally State v. Basquin, 970 N.W.2d 643 (Iowa 2022) (rejecting constitutional
challenge to written guilty pleas for felonies allowed under temporary COVID-19 supervisory
orders).
5
1. On or about . . . April 28, 2021 in Scott County[,] Iowa,
John Hanes III actively participated in or was a member of a criminal
street gang.
2. On that date and place, the defendant willfully aided and
abetted a criminal act, that is, felon in possession of a firearm.
3. On that date and place the criminal act was committed . . .
[in association with] the criminal street gang.
8. By pleading guilty, I am asking the Court to accept my
guilty plea. I waive all the rights set forth herein with the exception
of the right to counsel. I am admitting there is a factual basis for the
charge(s), and I admit at the time and place charged in the Trial
Information:
I was an active participant in a criminal street gang and I
possessed a firearm unlawfully as a felon and did so for the
benefit and in association with that same criminal street gang
on April 28, 2021 in Scott County[,] Iowa.
Hanes placed his initials next to his admission typed in paragraph 8.
Paragraph 9 stated, “I accept the minutes of testimony as substantially true as
to the elements of these charges.” The minutes recounted the facts set forth
above.
On July 12, the district court entered a written order accepting Hanes’s
guilty plea. The order noted Hanes “has filed a signed Consent to Waive Presence.
The Court, in its discretion, finds that there is no necessity for a full in-court
colloquy and accepts Defendant’s waiver of the same.” The court expressly
advised Hanes of the requirement to file a motion in arrest of judgment in order
to appeal his guilty plea. The order stated:
MOTION IN ARREST OF JUDGMENT
Defendant has a right to contest the adequacy of the guilty
plea by filing a motion in arrest of judgment pursuant to Iowa R.
Crim. P. 2.24(3). A motion in arrest of judgment must be filed no
later than 45 days after the guilty plea but no later than five (5) days
6
prior to sentencing (whichever occurs first). If Defendant fails to file
a motion in arrest of judgment in a timely manner, Defendant will
be precluded from challenging the plea, based upon any alleged
defects or mistakes in the plea proceeding, in an appeal to the Iowa
Supreme Court.
Hanes never filed a motion in arrest of judgment.
On August 20, the court conducted a virtual sentencing hearing by Zoom
pursuant to the then-existing COVID-19 supervisory orders. Hanes and his
attorney participated remotely by video. The following colloquy ensued:
[DEFENSE COUNSEL]: Your Honor, I -- I spoke with Mr.
Hanes prior to us being on the record here. Could I have a brief
colloquy with him, if the Court’s fine with that?
THE COURT: Go ahead.
[DEFENSE COUNSEL]: Mr. Hanes, in your PSI you -- you
made some statements about the events that I just want to clarify
with what you said in the plea. Do you agree that in the plea, when
you signed off on the factual basis for Criminal Gang Participation,
that that was a truthful signature, that you agree to the factual basis
in your plea?
[HANES]: Yes.
[DEFENSE COUNSEL]: And you agree that you were
participating with a criminal street gang and possessed a firearm for
the benefit of -- of the gang on that day?
[HANES]: Yes.
[DEFENSE COUNSEL]: Okay. And you -- do you wish to
withdraw your plea, or attempt to withdraw your plea at this time?
[HANES]: No.
The court offered Hanes the option of continuing the hearing so he could attend
in person; Hanes elected to proceed remotely by Zoom. The court noted that
Hanes was “deemed inappropriate for RCF” due to his assault on a female staffer
in RCF, which made it an “open plea.” Hanes and his counsel still declined to
7
withdraw his guilty plea. The prosecutor recommended incarceration. Defense
counsel argued for a suspended sentence and probation. The court ultimately
imposed a prison sentence of up to five years for criminal gang participation
“because of Mr. Hanes[’s] disturbing and significant criminal history even at his
young age and for purposes of protection of the community.” Pursuant to the
plea agreement, the court dismissed the felon-in-possession charge, another
class “D” felony. Three days later, Hanes filed a notice of appeal.
On appeal, Hanes argues his conviction and guilty plea should be vacated
because his plea lacked a factual basis. Specifically, he argues he cannot “aid
and abet” his own possession of a firearm and that the district court should have
rejected his plea on the court’s own motion. The State moved to dismiss the
appeal on grounds Hanes never filed a motion in arrest of judgment as required
by rule 2.24(3)(a) and Treptow. On the merits, the State argues a factual basis
exists based on Hanes’s admissions and because Iowa law allows an aider and
abettor to be charged as a principal, citing State v. El-Amin, 952 N.W.2d 134, 139
(Iowa 2020). We ordered the State’s motion submitted with the appeal and
retained the case.
II. Standard of Review.
“We ordinarily review challenges to guilty pleas for correction of errors at
law.” State v. Fisher, 877 N.W.2d 676, 680 (Iowa 2016). We review constitutional
challenges to guilty pleas de novo. Treptow, 960 N.W.2d at 107.
8
III. Analysis.
Hanes argues for the first time on appeal that there was no factual basis
in the record for his guilty plea to criminal gang participation. We must first
decide whether Hanes’s failure to file a motion in arrest of judgment precludes
appellate review of his challenge to his guilty plea in this direct appeal. Only if
he clears that hurdle may we reach the merits of his appeal.
Iowa Rules of Criminal Procedure 2.8(2)(d) and 2.24(3) govern motions in
arrest of judgment. Rule 2.8(2)(d) requires the court to “inform the defendant
that any challenges to a plea of guilty based on alleged defects in the plea
proceedings must be raised in a motion in arrest of judgment and that failure to
so raise such challenges shall preclude the right to assert them on appeal.” Iowa
R. Crim. P. 2.8(2)(d). Rule 2.24(3)(a) in turn states, “A defendant’s failure to
challenge the adequacy of a guilty plea proceeding by motion in arrest of
judgment shall preclude the defendant’s right to assert such challenge on
appeal.” Id. r. 2.24(3)(a). Hanes concedes he was properly advised of the
requirement that he file a motion in arrest of judgment in order to challenge his
plea on appeal. We reiterate that a “purpose of these two rules is to allow the
district court to correct defects in guilty plea proceedings before an appeal and
therefore eliminate the necessity for the appeal.” State v. Gant, 597 N.W.2d 501,
503–04 (Iowa 1999). This “admirable purpose would be thwarted” by allowing
Hanes’s appeal to proceed “after [he had been properly] advised of his right to
[file a motion in arrest of judgment] and the consequences for not doing so.”
Wenman v. State, 327 N.W.2d 216, 218 (Iowa 1982).
9
Hanes, however, relies on rule 2.24(3)(c), which states, “The court may
also, upon its own observation of any of these grounds, arrest the judgment on
its own motion.” 3 Iowa R. Crim. P. 2.24(3)(c). The district court accepted Hanes’s
guilty plea at his request without arresting judgment sua sponte. Hanes argues
due process is violated by affirming a conviction based on a guilty plea that lacks
a factual basis. He relies on the district court’s independent obligation to ensure
his guilty plea was supported by a factual basis and argues we should recognize
a “new exception” to error preservation requirements, tantamount to “ineffective
assistance of the judge.” The State argues that review is precluded by the
criminal rules and our caselaw, most recently Treptow. See 960 N.W.2d at 109.
We agree with the State.
In Treptow, David Treptow pleaded guilty to three drug-related offenses.
Id. at 102. He was advised of his right to file a motion in arrest of judgment and
waived that right. Id. On direct appeal, Treptow argued there was no “factual
basis supporting one of the convictions and his counsel provided constitutionally
ineffective assistance in allowing [him] to plead guilty in the absence of a factual
3The dissent relies primarily on Iowa Rule of Criminal Procedure 2.8(2)(b), which states
that a court “shall not accept a plea of guilty without first determining that the plea is made
voluntarily and intelligently and has a factual basis.” Hanes first cited rule 2.8(2)(b) in his reply
brief, but then only to note that rule was cited in another case that was requesting plain error
review. Hanes’s lawyer never mentioned rule 2.8(2)(b) at oral argument. The dissent’s advocacy
goes further and makes an argument not raised by Hanes—that rule 2.8(2)(b) itself should allow
the defendant to get direct appellate review of a guilty plea without filing the motion in arrest of
judgment expressly required by rules 2.8(2)(d) and 2.24(3)(a). The dissent’s reasoning based on
rule 2.8(2)(b)’s requirements would logically also allow direct appeals alleging a plea was
unknowing or involuntary without a motion in arrest of judgment filed in district court. We
decline to effectively rewrite rules 2.8(2) and 2.24(3)(a) to eliminate that motion required for direct
appellate review of the plea.
10
basis.” Id. We held that Treptow’s “failure to file a motion in arrest of judgment
precludes appellate relief.” Id. at 109 (citing Iowa R. Crim. P. 2.24(3)(a)).
Treptow discussed two exceptions. Id. First, when “the district court failed
to adequately advise the defendant of the consequences of not filing a motion in
arrest of judgment.” Id. Treptow was adequately advised; so too was Hanes.
Second, when the “failure to file a motion in arrest of judgment resulted from
ineffective assistance of counsel.”4 Id. (quoting State v. Straw, 709 N.W.2d 128,
133 (Iowa 2006), superseded in part on other grounds by Iowa Code
§§ 814.6(1)(a), .7). That path was foreclosed to Treptow by Iowa Code
section 814.7, which diverts ineffective-assistance-of-counsel claims to
postconviction proceedings. Hanes has not yet raised an ineffective assistance
claim, nor could he in this direct appeal. See id. But Hanes attempts to
distinguish Treptow by noting the defendant in that case did not raise the
argument Hanes asserts here—urging our court to recognize a third exception
based on the district court’s own ability to arrest judgment when a factual basis
is lacking for the guilty plea. See Iowa R. Crim. P. 2.24(3)(c).
4We have said it is a “per se example of ineffective assistance of counsel” when the defense
attorney allows the defendant to plead guilty when “the facts of the charge do not state a violation
of the statute under which the charge is made.” State v. Mitchell, 650 N.W.2d 619, 620 (Iowa
2002) (per curiam) (defendant charged under wrong statute for bringing contraband into a
correctional facility). We have also said, “Where a factual basis for a charge does not exist, and
trial counsel allows the defendant to plead guilty anyway, counsel has failed to perform an
essential duty. Prejudice in such a case is inherent.” State v. Schminkey, 597 N.W.2d 785, 788–
89 (Iowa 1999) (en banc) (citation omitted) (concluding factual basis was lacking for charge of
theft without “proof that [defendant] intended to permanently deprive the owner of his vehicle”
(emphasis omitted)).
As noted, Iowa Code section 814.7 now requires ineffective-assistance-of-counsel claims
to be pursued in postconviction-relief proceedings, not on direct appeal. Treptow, 960 N.W.2d at
103. In Treptow, we rejected claims that the resulting delays in obtaining relief rendered
section 814.7 unconstitutional. See id. at 107–08.
11
We decline to create this new exception. To do so would eviscerate
rule 2.24(3)(a)’s express prohibition on appeals where the defendant has failed
to file a motion in arrest of judgment. Id. r. 2.24(3)(a). Rule 2.24(3)(a) is
mandatory. By contrast, rule 2.24(3)(c) is permissive and merely allows the
district court to arrest judgment on its own motion. See id. r. 2.24(3)(c). It does
not provide the district court’s failure to do so enables the defendant to appeal
the very plea he urged the court to enter.
“It is a fundamental doctrine of appellate review that issues must
ordinarily be both raised and decided by the district court before we will decide
them on appeal.” Meier v. Senecaut, 641 N.W.2d 532, 537 (Iowa 2002). “A
supreme court is ‘a court of review, not of first view.’ ” Ripperger v. Iowa Pub.
Info. Bd., 967 N.W.2d 540, 552 (Iowa 2021) (quoting Cutter v. Wilkinson, 544 U.S.
709, 718 n.7 (2005)). Requiring a motion in arrest of judgment ensures that there
will be a district court ruling to review on appeal, and as noted, provides the
district court an opportunity to correct the error. The motion can also serve to
alert the state to fill any gaps in the record to establish a factual basis for the
plea, 5 or attempt to renegotiate the plea agreement if a factual basis is lacking
on a certain charge. Indeed, if Hanes had filed such a motion to challenge the
factual basis for criminal gang participation, the parties might have renegotiated
the plea agreement to dismiss that charge in exchange for his guilty plea to being
5In this case, for example, the State might have supplemented the record to show other
occupants of the vehicle with Hanes were felons and argued based on the second firearm in the
backseat that Hanes aided and abetted their criminal possession of a weapon in furtherance of
gang activity. The dissent does not address this scenario, and we do not reach the merits of
Hanes’s factual basis challenge.
12
a felon in possession of a firearm. The delay of this direct appeal, filed August 23,
2021, easily could have been avoided.
The new exception to error preservation requirements sought by Hanes
would undermine one of the chief values of guilty pleas: finality. “A guilty plea
waives all defenses and challenges not intrinsic to the voluntariness of the plea.”
State v. Tucker, 959 N.W.2d 140, 146 (Iowa 2021). “A plea of guilty is more than
a confession which admits that the accused did various acts; it is itself a
conviction; nothing remains but to give judgment and determine punishment.”
Id. (quoting Boykin v. Alabama, 395 U.S. 238, 242 (1969)). “A guilty plea puts a
lid on the box and presumably concludes a case.” Id. “Once a defendant has
waived his right to a trial by pleading guilty, the State is entitled to expect finality
in the conviction.” Id. at 150. (quoting State v. Mann, 602 N.W.2d 785, 789 (Iowa
1999)).
Hanes maintains that due process requires allowing him to challenge his
guilty plea on direct appeal without first filing a motion in arrest of judgment in
district court. We disagree. See, e.g., Massey v. Warden, 733 F. App’x 980, 990 &
n.6 (11th Cir. 2018) (per curiam) (“We note, however, that due process does not
require a state court to find a factual basis for a guilty plea unaccompanied by a
claim of innocence.”); Eggers v. Warden, 826 F.3d 873, 876 (6th Cir. 2016)
(“Absent a claim of innocence during the plea hearing, ‘there is no constitutional
requirement that a trial judge inquire into the factual basis of a plea.’ ” (quoting
Roddy v. Black, 516 F.2d 1380, 1385 (6th Cir. 1975))); Oller v. Bryant, 650 F.
App’x 598, 601 (10th Cir. 2016) (“But the Supreme Court has not acknowledged
13
a Due Process requirement that state courts must first establish an independent
factual basis before acceptance of a guilty plea.”); Booker v. State, 552 S.W.3d
522, 528 (Mo. 2018) (en banc) (“But as Missouri courts and several federal courts
have repeatedly noted, a sufficient factual basis is not constitutionally
required.”).
We have already rejected due process challenges to the 2019 amendment
to Iowa Code section 814.6 restricting direct appeals from guilty pleas. Treptow,
960 N.W.2d at 105; see 2019 Iowa Acts ch. 140, § 28 (codified at Iowa Code
§ 814.6 (2020)). If Hanes relied on constitutionally deficient advice of counsel to
plead guilty and forgo a motion in arrest of judgment, he can pursue relief in
postconviction proceedings. See id. at 103, 109 (rejecting constitutional
challenge to Iowa Code section 814.7). Hanes relies on State v. Williams, where
we reversed a conviction because the colloquy failed to show a factual basis for
the guilty plea, 224 N.W.2d 17, 18–19 (Iowa 1974), and State v. Sisco, where we
vacated a guilty plea based on inadequate colloquy to show the plea was knowing
and voluntary, 169 N.W.2d 542, 551–52 (Iowa 1969) (en banc). Those cases did
not discuss motions in arrest of judgment and were decided before the enactment
of our current rules of criminal procedure requiring such motions for appellate
review, and before the 2019 statutory changes restricting appeals from guilty
pleas.
After Hanes and the State filed their appellate briefs, we decided State v.
Crawford, overruling precedent to allow the defendant to challenge the
sufficiency of the evidence in his jury trial on direct appeal without first filing a
14
motion for acquittal in district court. 972 N.W.2d 189, 202 (Iowa 2022). Crawford
is inapposite because “those convicted after trial and those convicted pursuant
to a guilty plea are not similarly situated for the purposes of appellate review.”
Treptow, 960 N.W.2d at 104–05 (quoting Tucker, 959 N.W.2d at 146). “We
explained that those who plead guilty have acknowledged their guilt and waived
their constitutional rights so the need for appellate review is not necessary in the
same way as it is after trial.” Id. at 105. Indeed, our rules of criminal procedure
demonstrate this distinction by attaching a specific penalty—a bar to appeal—to
a defendant’s failure to file a motion in arrest of judgment. Iowa R. Crim. P.
2.24(3)(a). By contrast, the rules impose no such penalty on a defendant who
fails to file a motion for judgment of acquittal. See id. r. 2.19(8).
Convictions following guilty pleas and trials differ in another important
way. An appellate determination that the evidence at trial was insufficient results
in a dismissal of the charge. State v. Chapman, 944 N.W.2d 864, 875 (Iowa
2020). But if on appeal the factual basis for a guilty plea is found lacking, the
remedy is a remand to allow the state another opportunity to establish a factual
basis or to restore the original charges, including those that were to be dismissed
in a plea bargain. See State v. Gines, 844 N.W.2d 437, 441–42 (Iowa 2014). We
decline to compare apples to oranges. Crawford is inapplicable to the review of
guilty-plea-based convictions.
Because Hanes failed to file a motion in arrest of judgment, he cannot
establish good cause to pursue this direct appeal from his guilty plea as a matter
of right, and we lack jurisdiction to hear his appeal. See Treptow, 960 N.W.2d at
15
110. Dismissal of the appeal is required. Id. Accordingly, we do not reach the
merits of his no-factual-basis challenge to his guilty plea. 6
Nevertheless, and without criticizing the record made in this case, we
repeat this admonition:
Nothing in this opinion, however, should be construed as an
invitation to district courts to short circuit rule 2.8(2)(b) when taking
a guilty plea. The taking of a guilty plea, though often appearing
routine and even ritualistic, has the same consequence for the
defendant as a criminal trial. The plea colloquy is an important
backstop to help ensure that defendants who might not be guilty do
not end up with wrongful convictions as the result of a flawed
plea-bargaining process. In addition, a thorough record at the time
of the taking of a guilty plea lessens the likelihood of later challenges
and, if those challenges do occur, provides an important
6 The dissent contends that postconviction relief will be a waste of time and we should
exercise jurisdiction and grant relief now by treating this appeal as a petition for writ of certiorari.
Even if we assume that course were available to us, and it is not, the relevant considerations
would extend beyond this single case. We would also have to consider the impact of our decision
on other cases to come. Is it more efficient to encourage defendants to raise all objections to
guilty pleas in a motion in arrest of judgment or, failing that, in postconviction relief? Or is it
more efficient to encourage parties to take direct appeals from guilty pleas allegedly lacking a
factual basis, notwithstanding having failed to raise the point in the district court? Direct appeals
can take about a year to be resolved. As noted, in this case the notice of appeal was filed
August 23, 2021.
A petition for writ of certiorari is available when the district court “exceeded the judge’s
jurisdiction or otherwise acted illegally.” Iowa R. App. P. 6.107(1)(a). We have never held that the
district court acts “illegally” or exceeds its “jurisdiction” by accepting a guilty plea without a
factual basis, and Hanes makes no such argument. His sentence is within statutory limits. The
author of the dissent joined Treptow without raising this illegality theory that would effectively
overrule that decision. In Tindell v. State, we declined to relax the requirement to file a motion in
arrest of judgment to appeal procedural errors in guilty pleas. 629 N.W.2d 357, 359–60 (Iowa
2001) (en banc) (holding the defendant failed to preserve error on his claim that he withdrew and
never renewed his guilty plea, resulting in an illegal sentence). Like Hanes, defendant Tindell
claimed there was no valid guilty plea supporting his conviction. Id. at 358–59. We noted that
our cases “allow challenges to illegal sentences at any time, but they do not allow challenges to
sentences that, because of procedural errors, are illegally imposed.” Id. at 359. We warned that
[i]f we were to expand th[e] concept [of illegality] to encompass redress for
underlying procedural defects, as well, it would open up a virtual Pandora’s box
of complaints with no statutorily prescribed procedures for their disposition nor
any time limits for their implementation. We do not believe the legislature
intended such a result.
Id. at 360. That warning applies with equal force here. The dissent disclaims reliance on “illegal
sentence” cases, yet fails to cite any case holding the lack of a factual basis results in a form of
illegality supporting certiorari review.
16
contemporary record to assist reviewing courts in evaluating the
merits of such claims.
State v. Finney, 834 N.W.2d 46, 62–63 (Iowa 2013). We also urge district courts
to expedite postconviction review of claims that a guilty plea lacked a factual
basis. Such claims presumably could be promptly decided based on the minutes
and plea colloquy.
IV. Disposition.
For the foregoing reasons, we dismiss this appeal for lack of jurisdiction.
APPEAL DISMISSED.
Christensen, C.J., and Mansfield, McDonald, Oxley, and May, JJ., join
this opinion. Oxley, J., files a concurring opinion. McDermott, J., files a
dissenting opinion.
17
#21–1146, State v. Hanes
OXLEY, Justice (concurring).
I join the majority’s opinion because I agree that State v. Treptow, 960
N.W.2d 98 (Iowa 2021), governs. But I write separately to note the additional
judicial proceedings Hanes, and others like him, will needlessly have to go
through under our rules of criminal procedure. As the majority rightly points
out, rule 2.24(3)(a) precludes a defendant who pleads guilty from raising issues
on appeal that are not first raised in district court through a motion in arrest of
judgment, including a claim that a factual basis is lacking. Iowa R. Crim. P.
2.24(3)(a). Historically, we have nonetheless allowed defendants to raise lack of
a factual basis on direct appeal even when they didn’t file a motion in arrest of
judgment, using ineffective assistance of counsel as the conduit. See Treptow,
960 N.W.2d at 109 (recognizing ineffective assistance as one exception to the
requirement to file a motion in arrest of judgment).
But let’s call a spade a spade. When a factual basis was lacking, we didn’t
really use ineffective assistance of counsel to excuse the failure to file the motion.
See Rhoades v. State, 848 N.W.2d 22, 33 (Iowa 2014) (Mansfield, J., concurring
specially) (“Although we have not said so as a court, I think the reality is that
our court has an expansive view of ineffective assistance of counsel.”). Rather,
“we vacate[d] a plea whenever the record d[id] not contain a factual basis for each
element of the crime, seemingly without regard to counsel’s actual competence.”
Id.; see also State v. Mitchell, 650 N.W.2d 619, 620–21 (Iowa 2002) (per curiam)
(“[I]t is perhaps unfair to justify the granting of relief to a defendant in all such
18
instances on an ineffective-assistance-of-counsel theory. There will be cases in
which the interpretation of the statutes present[s] a close case involving good-
faith professional judgment.”). Whether or not counsel provided ineffective
assistance, “we adhere[d] to our view that all such convictions must be vacated.”
Mitchell, 650 N.W.2d at 621. And we did that because “our decision in State v.
Schminkey, 597 N.W.2d 785, 788 (Iowa 1999) [(en banc)], mandates that under
no circumstances may a conviction upon plea of guilty stand if it appears that
the facts of the charge do not state a violation of the statute under which the
charge is made.” Mitchell, 650 N.W.2d at 620 (emphasis added).
In reviewing a factual-basis challenge where no motion in arrest of
judgment is filed, we don’t even address the elements of an ineffective-
assistance-of-counsel claim. Rather, “our first and only inquiry is whether the
record shows a factual basis for [the defendant’s] guilty plea.” Schminkey, 597
N.W.2d at 788. No new evidence is considered. Our decision is based only on the
“record before the district court at the guilty plea hearing, including any
statements made by the defendant, facts related by the prosecutor, the minutes
of testimony, and the presentence report.” Id.
Rather than continuing the façade of analyzing factual-basis challenges
through the lens of an ineffective-assistance claim when no motion in arrest of
judgment is filed, we should amend rule 2.24(3)(a) to allow factual-basis claims
to be brought on direct appeal even if a motion in arrest of judgment is not filed.
Sending the claims to postconviction relief (PCR) serves no purpose but to cause
delay and increase the burden on defendants and judicial resources through
19
additional proceedings. While a motion in arrest of judgment is preferable
because it allows the district court to consider the issue in the first instance and
correct any correctable deficiencies, sending the case to PCR does not change
the fact that the district court lacked an opportunity to consider its alleged error.
The PCR court will have to do the same review we have always done on appeal,
and, like us, without the benefit of the district court’s ruling on a motion in arrest
of judgment. Nor will changing the rule somehow advantage the defendant by
allowing him to hide the ball from the district court. It is still more advantageous
to the defendant to raise the claim in a motion to arrest judgment—so that the
district court can correct the error immediately—rather than waiting until the
appellate process to do so. But when the issue is not raised first in district court
through a motion in arrest of judgment, it makes no sense to send it to PCR for
essentially the same review we would do on direct appeal.
20
#21–1146, State v. Hanes
McDERMOTT, Justice (dissenting).
As with the wisdom about liberty, it seems that the price of justice in a
system driven by plea bargaining is eternal vigilance.
The crime to which the defendant pleaded guilty in this case—criminal
gang participation—includes as a necessary element that the defendant “willfully
aids and abets any criminal act.” Iowa Code § 723A.2 (2021). In the guilty plea
presented to the district court, Hanes admitted to having “willfully aided and
abetted a criminal act, that is, felon in possession of a firearm.” The district court
accepted Hanes’s plea, entered a judgment of conviction, and sentenced him.
But here’s the rub: the “felon” that Hanes “aided and abetted” in
possessing a firearm was Hanes himself. To aid and abet a criminal act requires
that there be someone else—a principal, as the law refers to the person—that the
aider and abettor assists. Hanes can’t aid and abet himself in a criminal act.
While Hanes, of course, can commit the crime of felon in possession of a firearm
by possessing a firearm, he can’t aid and abet himself in his own unlawful
possession of the firearm. Iowa’s aiding-and-abetting statute makes a distinction
between “principals” (those who “directly commit the act constituting the
offense”) and those who “aid and abet its commission.” Id. § 703.1. By definition,
“there must be a guilty principal before there can be an aider and abettor.” United
States v. Washington, 106 F.3d 983, 1003 (D.C. Cir. 1997) (per curiam) (quoting
United States v. Staten, 581 F.2d 878, 887 (D.C. Cir. 1978)); see also Nye &
Nissen v. United States, 336 U.S. 613, 620 (1949) (“Aiding and abetting . . . states
21
a rule of criminal responsibility for acts which one assists another in
performing.”).
If Hanes can’t aid and abet his own felon-in-possession crime—and that’s
the only crime presented as evidence of his aiding and abetting in this case—
then Hanes hasn’t aided and abetted a criminal act necessary to support a
conviction for criminal gang participation. A required element of the crime is
lacking. Hanes thus stands wrongly convicted—and at this moment,
incarcerated—for a crime that on this record he did not commit. 7
By accepting Hanes’s plea and entering a judgment of conviction without
a factual basis for the crime, the district court violated Iowa Rule of Criminal
Procedure 2.8(2)(b), which states that a court “shall not accept a plea of guilty
without first determining that the plea is made voluntarily and intelligently and
has a factual basis.” Yet the majority today refuses to act to correct this, instead
dismissing this appeal for lack of jurisdiction because Hanes failed to file a
“motion in arrest of judgment” under rule 2.24(3)(a) to set aside the district
court’s judgment of conviction. Hanes is left to challenge his conviction through
a civil postconviction-relief (PCR) action under Iowa Code chapter 822. In a PCR
action, he will need to prove a claim of ineffective assistance by his trial counsel
but will have no mechanism to challenge the district court’s own separate
7The majority recites the State’s argument that “Iowa law allows an aider and abettor to
be charged as a principal.” The majority doesn’t get into the merits of this argument, and for
good reason. The State’s argument fails because it confuses how a crime is charged with how a
crime is committed. The gang-participation statute, by its express terms, focuses on how the
associated crime is committed, specifying the necessary element that the defendant “willfully aids
and abets any criminal act.” Iowa Code § 723A.2. The focus of the gang-participation statute is
the nature of the criminal act, not how that act might later be charged.
22
violation of rule 2.8(2)(b) in accepting the guilty plea without a factual basis for
it.
As the majority notes, our prior cases have carved two exceptions to the
rule requiring that defendants file a motion in arrest of judgment before we’ll
consider a challenge to a guilty plea in a direct appeal. The first is when the
district court fails to inform a defendant that a motion in arrest of judgment
must be filed to challenge the guilty plea in an appeal. See State v. Loye, 670
N.W.2d 141, 149–50 (Iowa 2003). The second is when a defendant alleges that
the failure to file a motion in arrest of judgment resulted from ineffective
assistance of counsel. See State v. El-Amin, 952 N.W.2d 134, 137–38 (Iowa 2020).
Hanes asserts that his lawyer provided ineffective assistance of counsel by
failing to file a motion in arrest of judgment. But this second exception to the
motion-in-arrest-of-judgment rule is now something of a historical relic in light
of recent amendments to Iowa Code section 814.7, which forbids parties from
raising ineffective-assistance claims in a direct appeal. As a result, Hanes asks
us to create a new exception that would permit defendants to challenge a guilty
plea in a direct appeal—even if they’ve failed to file a motion in arrest of judgment
under rule 2.24(3)(a)—when the district court fails in its duty to ensure a factual
basis for the guilty plea under rule 2.8(2)(b) or (relatedly) fails to arrest a defective
judgment of conviction on its own. See Iowa R. Crim. P. 2.8(2)(b).
A better approach to this problem exists, in my view. Hanes’s challenge to
his wrongful conviction is best addressed as a petition for writ of certiorari.
Hanes’s appellate briefs argue that the district court failed in its duties when it
23
accepted his guilty plea to the gang-participation charge without a factual basis.
Iowa Rule of Appellate Procedure 6.107 states that a party asserting that a
district court judge “exceeded the judge’s jurisdiction or otherwise acted illegally”
may file a petition for writ of certiorari in the supreme court. (Emphasis added.)
That Hanes’s appellate counsel filed a notice of appeal and not a petition for writ
of certiorari doesn’t matter. If our court “determines another form of review was
the proper one, the case shall not be dismissed, but shall proceed as though the
proper form of review had been requested.” Id. r. 6.108; see also Crowell v. State
Pub. Def., 845 N.W.2d 676, 682 (Iowa 2014). “Our power to review lower court
actions by issuing writs of certiorari is discretionary.” Crowell, 845 N.W.2d at
682 (citing Sorci v. Iowa Dist. Ct., 671 N.W.2d 482, 490 (Iowa 2003)).
What’s the point of forcing Hanes to challenge his unquestionably unlawful
conviction in a separate, time-consuming PCR action? Hanes poses a purely legal
challenge to the validity of his guilty plea and no fact-finding is required. In this
situation, “our first and only inquiry is whether the record shows a factual basis
for [the defendant’s] guilty plea to the charge.” State v. Schminkey, 597 N.W.2d
785, 788 (Iowa 1999) (en banc). We have the record in front of us. It shows that
the district court violated rule 2.8(2)(b) when it accepted Hanes’s guilty plea to
the gang-participation charge without a factual basis. We have discretion under
rule 6.108 to address the district court’s violation now—and we ought to.
The majority’s decision to dismiss this appeal and thus compel Hanes to
seek relief through a PCR action raises a separate, disturbing question: what if
Hanes had not been represented by counsel when he pleaded guilty without a
24
factual basis? A defendant can’t claim ineffective assistance of counsel if the
defendant had no counsel assisting him. See State v. Hutchison, 341 N.W.2d 33,
42 (Iowa 1983). If Hanes had been without a lawyer, he would have no lawyer to
point to as ineffective in a PCR action, and thus the district court’s acceptance
of the guilty plea, in violation of rule 2.8(2)(b), would appear to have no remedy.
Under the majority’s PCR-or-bust resolution of this appeal, self-represented
defendants who plead guilty to a charge with no factual basis appear destined to
serve out their sentences without any means to challenge the spurious
conviction that it’s based on. 8
Defendants cannot, for mistaken reasons or strategic ones, plead guilty to
a crime with no factual basis. “Endorsing such strategies,” we have said, “would
erode the integrity of all pleas and the public’s confidence in our criminal justice
system.” State v. Hack, 545 N.W.2d 262, 263 (Iowa 1996). “It makes a mockery
of the justice system when a defendant is punished for violating a statute that
he unquestionably did not violate.” Iowa Sup. Ct. Att’y Disciplinary Bd. v. Howe,
706 N.W.2d 360, 379 (Iowa 2005).
None of this is to suggest, of course, that the State, Hanes’s lawyer, or the
district court judge ever intended to violate the law by advocating (in the case of
8The majority in a footnote addressing this dissent asks rhetorically whether it’s more
efficient for defendants to raise objections to guilty pleas in a motion in arrest of judgment in the
district court as opposed to in a PCR action or in a direct appeal. But the majority’s rhetorical
question obscures the actual question before us: whether an appellate court may on direct appeal
vacate a guilty plea when the defendant has already failed to make a motion in arrest of
judgment. In the same footnote, the majority discusses some of our cases on challenges under
an “illegal sentence” theory. It’s not clear to me why these are included in apparent reference to
this dissent, as I do not mention (let alone rely on) any basis to vacate Hanes’s guilty plea under
our illegal sentence cases.
25
the lawyers) or accepting (in the case of the judge) the guilty plea in this case.
The record contains no suggestion of anyone involved in the case seeking to skirt
the law. But a serious mistake has been made nonetheless, and one we should
not—and need not—delay in fixing.
The United States Supreme Court has acknowledged that plea-bargaining
“is not some adjunct to the criminal justice system; it is the criminal justice
system.” Missouri v. Frye, 566 U.S. 134, 144 (2012) (quoting Robert E. Scott &
William J. Stuntz, Plea Bargaining as Contract, 101 Yale L.J. 1909, 1912 (1992)).
The court’s vigilance in ensuring that every guilty plea “is made voluntarily and
intelligently and has a factual basis” is thus vital to safeguarding a defendant’s
constitutional rights and, more broadly, the integrity of the criminal justice
system. Iowa R. Crim. P. 2.8(2)(b); see Hack, 545 N.W.2d at 263.
Until today, our court had resolutely maintained that “under no
circumstances may a conviction upon plea of guilty stand if it appears that the
facts of the charge do not state a violation of the statute under which the charge
is made.” State v. Mitchell, 650 N.W.2d 619, 620 (Iowa 2002) (per curiam) (citing
Schminkey, 597 N.W.2d at 788). That’s precisely what we have here: the facts of
the charge do not state a violation of the statute. And conspicuously, nowhere in
the majority opinion does the majority suggest any disagreement with this. Our
court’s “under no circumstances” tough talk appears to have been mere flexing,
for today we let Hanes’s unsupported conviction stand. In place of action to
correct an indisputably baseless conviction, we now simply urge that the district
court “expedite postconviction review.”
26
It need not be so. I would grant a writ of certiorari and hold that the district
court violated its duty to reject Hanes’s guilty plea under rule 2.8(2)(b) because
it lacked a factual basis. The appropriate remedy in this situation is to vacate
the plea, reverse the judgment of conviction and sentence, and remand the case
to the district court to give the State the opportunity to establish a factual basis.
See State v. Gines, 844 N.W.2d 437, 441–42 (Iowa 2014). If the State can
establish a factual basis for the gang-participation charge, the district court
should resentence Hanes. Id. If the State is unable to establish a factual basis
for the charge, the State returns to the position it was in before the plea
agreement and may charge the defendant under any code section supported by
the facts. Id. | 01-04-2023 | 11-10-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484026/ | Filed 11/15/22 In re Rozlyn G. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re ROZLYN G., a Person B314519
Coming Under the Juvenile
Court Law. (Los Angeles County
Super. Ct. No.
20CCJP02576A)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and Respondent,
v.
DOROTHY P.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Steff Padilla, Juvenile Court Referee. Affirmed.
Lori Siegel, under appointment by the Court of Appeal, for
Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Veronica Randazzo, Deputy
County Counsel, for Plaintiff and Respondent.
_______________________
Dorothy P., the mother of six-year-old Rozlyn G., appeals
two of four jurisdictional findings made by the juvenile court and
that portion of the disposition order requiring her to drug test,
but not the finding that she and Colby G., Rozlyn’s presumed
father, had a history of domestic violence that endangered the
child or the order declaring Rozlyn a dependent child of the court
and removing Rozlyn from her parents’ care and custody.
Dorothy’s limited challenge to the jurisdiction findings is not
justiciable, and the order requiring her to drug test was well
within the juvenile court’s discretion even if Dorothy’s frequent
use of marijuana did not place Rozlyn at substantial risk of
serious physical harm. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Sustained Dependency Petition and Disposition
Orders
On July 21, 2021 the juvenile court sustained in part an
interlineated second amended petition pursuant to Welfare and
1
Institutions Code section 300, subdivision (b) (failure to protect),
making four jurisdiction findings. First, the court found Dorothy
had mental and emotional problems, including bipolar
depression, that rendered her incapable of providing Rozlyn with
1
Statutory references are to this code.
2
appropriate care and supervision. As part of this finding the
court sustained the allegation that Dorothy failed to regularly
participate in mental health treatment or to take psychotropic
medication as prescribed. Second, the court found Dorothy had a
history of substance abuse and was a current abuser of
marijuana, which, given the child’s young age, also rendered
Dorothy unable to provide Rozlyn with appropriate care. Third,
the court found Colby had mental and emotional problems,
including schizophrenia, that rendered him incapable of
providing Rozlyn appropriate care. Finally, the court found
Dorothy and Colby had a history of domestic violence, including
on numerous occasions violating court-issued protection orders
restraining Colby from having contact with Dorothy.
At disposition the court declared Rozlyn a dependent child
of the court, removed her from the care, custody and control of
2
her parents and ordered her suitably placed. Family
reunification services were ordered for Dorothy and Colby.
Dorothy’s case plan required her to participate in weekly random,
on-demand drug testing, a support group for victims of domestic
violence and continued mental health treatment with a
psychiatrist and to take all prescribed psychotropic medication
and abide by all outstanding court orders. She was permitted
monitored visitation with Rozlyn.
2
By the time of the 12-month review hearing (§ 366.21,
subd. (f)) on September 13, 2022, Rozlyn had been ordered placed
with her maternal grandparents in New York.
3
2. The Primary Evidence Supporting the Juvenile Court’s
Findings
a. Domestic violence
In an interview with a social worker for the Los Angeles
County Department of Children and Family Services following a
referral for general neglect in March 2020, Dorothy identified
Colby as Rozlyn’s father and said she did not have contact with
him because of their history of domestic violence. In subsequent
interviews with Department social workers, Dorothy confirmed
this history of violence and the existence of restraining orders
against Colby intended to protect her.
In early November 2020 a maternal aunt called the
Department and reported Dorothy had told her several days
earlier that Colby had located her, entered her apartment by
breaking a window and stolen her purse. Colby was arrested
shortly thereafter following a traffic stop. During the
investigation police officers determined there were
two outstanding Los Angeles Superior Court criminal protection
orders (one with an expiration date of December 5, 2020; the
second with an expiration date of May 7, 2022) that Colby had
violated. The police report indicated Dorothy arrived at the scene
and admitted to the officers she had agreed to meet with Colby,
notwithstanding the restraining orders, because Colby had said
he would give her money for Rozlyn.
Several months later, on February 24, 2021, Los Angeles
police officers responded to a domestic violence incident involving
Dorothy and Colby at Dorothy’s residence at a Salvation Army
shelter. When the officers arrived, Colby jumped out a window
and fled on foot. According to Dorothy, Colby had arrived at the
home the day before and held Rozlyn and her hostage,
4
threatening to kill both of them and striking Dorothy multiple
times with his fists. Dorothy admitted that during the incident
she had used marijuana in a bedroom while Rozlyn remained
with Colby in the living room.
b. Dorothy’s mental health issues
In an October 22, 2020 interview with a dependency
investigator and again in a February 24, 2021 interview with a
social worker, Dorothy reported she had bipolar disorder and
suffered from depression and was under the care of a
psychiatrist. The psychiatrist confirmed the bipolar II diagnosis.
As of the time the dependency proceedings began, Dorothy had
declined medication to treat her conditions, but apparently by
February 2021 had started to take medication to treat anxiety,
but still no psychotropics for her bipolar disorder. On several
occasions Dorothy explained she self-medicated with marijuana
rather than use prescribed medication.
Dorothy was also receiving mental health services through
a mental health clinic. The clinic’s therapist, although conceding
she did not have a full picture of Dorothy’s situation, did not
believe Dorothy’s mental health interfered with her ability to
provide parental care for Rozlyn.
c. Dorothy’s marijuana use
Dorothy repeatedly described her use of marijuana as
“recreational” (although admitting she self-medicated with
marijuana to treat the symptoms of her mental illness). At a
jurisdiction hearing in November 2020 Dorothy testified she
would smoke marijuana after taking Rozlyn to school but only at
a level that would allow her to become sober in time to pick
Rozlyn up when the school day was done. Asked what she would
do if there was an emergency during the day and Rozlyn needed
5
to be picked up early, Dorothy’s answer was, “I’m never high for a
long time because of the amount that I smoke.” During this
testimony Dorothy admitted she concealed from her psychiatrist
that she continued to smoke marijuana on a consistent basis.
Her therapist also reported that Dorothy had not been
forthcoming about her continued marijuana use.
Throughout the dependency proceedings Dorothy had
multiple drug tests revealing marijuana use and many additional
missed tests for which Dorothy proffered a variety of excuses but
ultimately admitted, for at least some of them, she did not test
because she was using marijuana. Her continued use occurred
even when Rozlyn remained in her care and the juvenile court
had cautioned that Rozlyn could be detained if Dorothy failed to
3
test clean. The danger to Rozlyn from Dorothy’s continued
marijuana use was most clearly demonstrated by Dorothy’s
decision to leave Rozlyn alone with Colby during the February
2021 episode of domestic violence in order to calm herself by
smoking.
3. Dorothy’s Appeal
Dorothy filed a timely notice of appeal from the court’s
July 21, 2021 findings and orders. In her opening brief Dorothy
acknowledged she was the victim of domestic violence
perpetrated by Colby and stated, “Mother does not challenge the
jurisdictional findings and subsequent disposition orders
3
At the May 13, 2020 detention hearing Rozlyn was released
to Dorothy with various conditions, including, “Mother shall
continue to test and test cleanly.” The court stated it shared the
Department’s concern about Dorothy’s continued marijuana use
and agreed Rozlyn could be detained if Dorothy failed to abide by
the conditions imposed.
6
pertaining [to] the domestic violence.” Rather, she explained, her
appeal was limited to the jurisdiction findings regarding what
she described as her “occasional use of marijuana” and her
“diagnosis of Bipolar II, and situational depression and anxiety.”
In her brief she also challenged the juvenile court’s disposition
order requiring her to drug test, asserting “there was no causal
link between Mother’s use of marijuana and her ability to care for
or supervise Rozlyn.”
Colby has not appealed the jurisdiction findings or orders.
DISCUSSION
1. Dorothy’s Challenge to Two of Four Jurisdiction
Findings Is Not Justiciable
Dorothy does not challenge the juvenile court’s exercise of
jurisdiction over Rozlyn based on the sustained allegation that
she and Colby had a history of domestic violence, which included,
on numerous occasions, violating court-issued protective orders.
(There is also no challenge by either parent to the finding that
Colby had mental and emotional problems, including
schizophrenia, which rendered him incapable of providing
appropriate care for the child.) Nor does she challenge the court’s
decision to order Rozlyn suitably placed. As a result, even if we
were to strike the two jurisdiction findings Dorothy challenges,
that decision would not affect the juvenile court’s jurisdiction in
this matter (In re Ashley B. (2011) 202 Cal.App.4th 968, 979 [“[a]s
long as there is one unassailable jurisdictional finding, it is
immaterial that another might be inappropriate”]; In re I.A.
(2011) 201 Cal.App.4th 1484, 1492 [jurisdiction finding involving
one parent is good against both; “‘“the minor is a dependent if the
actions of either parent bring [him or her] within one of the
statutory definitions of a dependent”’”]; see In re M.W. (2015)
7
238 Cal.App.4th 1444, 1452; In re Briana V. (2015)
236 Cal.App.4th 297, 309-310) or limit the court’s authority to
make all orders necessary to protect the child: The juvenile
court’s “broad discretion to determine what would best serve and
protect the child’s interest and to fashion a dispositional order in
accord with that discretion, permits the court to formulate
disposition orders to address parental deficiencies when
necessary to protect and promote the child’s welfare, even when
that parental conduct did not give rise to the dependency
proceedings.” (In re K.T. (2020) 49 Cal.App.5th 20, 25; accord,
In re Briana V., at p. 311 [“The problem that the juvenile court
seeks to address need not be described in the sustained
section 300 petition. [Citation.] In fact, there need not be a
jurisdictional finding as to the particular parent upon whom the
court imposes a dispositional order”]; In re I.A., at p. 1492 [“[a]
jurisdictional finding involving the conduct of a particular parent
is not necessary for the court to enter orders binding on that
parent, once dependency jurisdiction has been established”]; see
generally § 362, subd. (a) [the juvenile court “may make any and
all reasonable orders for the care, supervision, custody, conduct,
maintenance, and support of the child”].)
As Dorothy correctly argues, in limited circumstances
reviewing courts have exercised their discretion to consider an
appeal challenging a jurisdiction finding despite the existence of
an independent and unchallenged ground for jurisdiction when
the jurisdiction findings “serve[] as the basis for dispositional
orders that are also challenged on appeal.” (In re J.C. (2014)
233 Cal.App.4th 1, 4; see In re D.P. (2015) 237 Cal.App.4th 911,
917; In re Drake M. (2012) 211 Cal.App.4th 754, 763.) This,
however, is not an appropriate case to exercise that discretion.
8
As explained in the following section, even if the court’s finding
regarding Dorothy’s marijuana use would not support
dependency jurisdiction, the court had ample discretion to order
Dorothy to drug test—the only disposition order at issue—as a
means of promoting Rozlyn’s welfare.
2. The Court Did Not Abuse Its Discretion in Ordering
Dorothy To Drug Test
We review the juvenile court’s disposition orders, including
orders not directly based on a jurisdiction finding, for an abuse of
discretion. (In re K.T., supra, 49 Cal.App.5th at p. 25; see In re
D.P. (2020) 44 Cal.App.5th 1058, 1071; see generally In re Baby
Boy H. (1998) 63 Cal.App.4th 470, 474 [“The juvenile court has
broad discretion to determine what would best serve and protect
the child’s interests and to fashion a dispositional order
accordingly. On appeal, this determination cannot be reversed
absent a clear abuse of discretion”].)
Despite Dorothy’s insistence that her use of marijuana was
not a problem and her vow at the November 2020 jurisdiction
4
hearing that she would stop using, the record before the juvenile
court clearly established she was unable to do so. Following that
hearing she continued to have positive drug tests and to skip
other court-ordered tests, apparently because she feared positive
results. And, as discussed, Dorothy concealed the full extent of
her marijuana use from her psychiatrist and the clinical
therapist who were treating her. Most strikingly, while
purportedly being held hostage and physically attacked by Colby
4
After stating unequivocally, “I don’t have a problem,”
Dorothy testified at the November 19, 2020 hearing, “I will
definitely stop, definitely for sure.”
9
in February 2021, Dorothy left Rozlyn alone with Colby in order
to smoke marijuana in a different room.
Whether or not Dorothy’s ongoing, and seemingly
uncontrollable, behavior qualified as a substance use disorder
within the meaning of the Diagnostic and Statistical Manual of
Mental Disorders, Fifth Edition (DSM-5) or was sufficient
without the finding of domestic violence to support the order
sustaining the section 300 petition to protect Rozlyn, a child of
tender years (cf. In re Christopher R. (2014) 225 Cal.App.4th
1210, 1218-1219), her ongoing marijuana use was sufficiently
troubling to justify the juvenile court’s requirement that her use
be monitored during the period of reunification services to assess
whether the situation was improving, remaining constant or
deteriorating and when, if ever, it would be safe to return Rozlyn
to Dorothy’s custody. There was no abuse of discretion.
DISPOSITION
The jurisdiction findings and disposition orders are
affirmed.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
10 | 01-04-2023 | 11-15-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484023/ | Filed 11/15/22 In re Victoria J. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
opinions not certified for publication or ordered published, except as specified by rule
8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re VICTORIA J. et al., Persons B319069
Coming Under the Juvenile Court Law.
_____________________________________ (Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. DK02773B–C)
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
CHESTER J.,
Defendant and Appellant.
APPEAL from orders of the Superior Court of Los Angeles
County, Linda L. Sun, Judge. Affirmed.
Christine E. Johnson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, Kelly Emling, Deputy County Counsel
for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Chester J. (father) appeals from juvenile court orders
terminating parental rights to two of his children. He contends
the orders should be reversed because the Los Angeles County
Department of Children and Family Services (DCFS) failed to
comply with the inquiry provisions of state law implementing the
Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901
et seq.). We conclude that any ICWA inquiry error was not
prejudicial, and we therefore will affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. Prior dependency proceeding.
Father and Kimberly J. (mother) are the parents of
Victoria J. (born in September 2010) and Noah J. (born in
April 2013).
In December 2013, DCFS filed a petition alleging that
domestic violence between mother and father put the children at
risk of physical harm, and the family’s home was unsanitary and
lacked a functioning toilet, shower, refrigerator, oven, and stove.
In April 2014, after the parents obtained new housing, the court
dismissed the petition but ordered that DCFS continue to
supervise the family pursuant to Welfare and Institutions Code 1
section 301.
1 All subsequent undesignated statutory references are to
the Welfare and Institutions Code.
2
II. Present petition, adjudication, and disposition.
DCFS filed a petition in the present case on October 9,
2014.2 It alleged that the children were subject to juvenile court
jurisdiction pursuant to section 300, subdivision (b) because
mother abused drugs and suffered from mental illness, and
father failed to protect the children. Because the family’s
whereabouts were then unknown, the court issued arrest
warrants for the parents and protective custody warrants for the
children.
DCFS located the family approximately 18 months later, in
March 2016, and took the children into protective custody. They
were placed with their paternal aunt.
The jurisdiction/disposition report noted that in the prior
proceeding the juvenile court had found ICWA did not apply
through father. Mother had claimed possible ancestry through
the Cherokee tribe, but she had said she was not eligible to be
enrolled or registered with a Cherokee tribe. ICWA notices had
been sent to the Cherokee tribes, the Secretary of the Interior,
and the Bureau of Indian Affairs (BIA) based on the information
mother provided, but no ICWA finding had been made as to
mother prior to the court’s termination of jurisdiction.
The court held a jurisdiction/disposition hearing on May 26,
2016, at which neither parent appeared. The juvenile court
sustained the allegations of the petition, ordered the children
removed from the parents, and entered reunification plans for
each parent. With regard to ICWA, the court took judicial notice
2 An older sibling was also named in the petition, but he
turned 18 years old in July 2021, and thus he is not a subject of
this appeal.
3
of its prior ICWA findings and noted that neither parent had
come to court to provide any additional information. Because
father previously had denied Indian ancestry and mother had
said no one in her family was enrolled or registered with a tribe,
the court found there presently was no reason to know the
children were Indian children. It ordered the parents to keep
DCFS, their attorneys, and the court aware of any new
information relating to ICWA.
In November 2016, DCFS reported that neither parent was
participating in court-ordered services. The children remained
placed with the paternal aunt, with whom DCFS had regular
contact, and social workers in Louisiana had made contact with
the maternal grandparents to assess them for placement.
III. ICWA findings; placement with prospective adoptive
parents; termination of parental rights.
In late February 24, 2017, the paternal aunt reported that
father had abducted the children from her home. Their
whereabouts remained unknown for approximately a year.
The children were located in February 2018 and placed in
foster care. In April 2018, DCFS reported that father was
emotionally abusive to mother and his adult children, and it did
not believe there were any interventions that would create a safe
home for the children. DCFS further believed mother did not
have the ability to protect the children, although she expressed
the desire to do so. Therefore, DCFS did not recommend
returning the children to either parent. In October 2018, DCFS
recommended that the juvenile court set a section 366.26
hearing.
The parents, children, and an adult sibling were present at
a hearing on October 29, 2018. Both parents submitted ICWA-
4
020 forms: Mother said she might have Indian ancestry through
a Cherokee tribe, and father said he did not have Indian
ancestry. After reviewing mother’s ICWA-020 form, the court
asked mother if she was a member of a tribe. She said that on
her mother’s side, she believed her grandfather’s grandmother
(the children’s great-great-great grandmother) was Cherokee; on
her father’s side, she believed her grandmother grew up on a
reservation, but she did not know the name of the tribe. She
thought some of her relatives might have more information. The
court ordered DCFS to further inquire of mother regarding her
Indian ancestry and “to provide notice under ICWA to the
Department of the Interior, Bureau of Indian Affairs, [and] all
other tribes identified by either [mother] or family members.”
The court told mother she would be contacted by DCFS and
asked her to “please cooperate with the worker as to acquiring as
much information as we can about possible Indian ancestry.”
The court then set a section 366.26 hearing for February 26,
2019.
In February 2019, DCFS reported that the children’s
caregiver’s adult son and his girlfriend had formed a strong
attachment to the children and wished to adopt them. The same
month, the juvenile court determined that the section 366.26
hearing would have to be continued because the children had not
yet been placed with the prospective adoptive parents and DCFS
had not complied with the court’s order to conduct a further
inquiry into mother’s claim of Indian ancestry. The court ordered
DCFS to immediately serve ICWA-030 notices on the Department
of the Interior, the BIA, and all Cherokee tribes, and it continued
the hearing for six months.
5
DCFS sent ICWA-030 notices to three Cherokee tribes in
early March 2019. All three tribes responded that the children
were not tribal members or eligible for membership; the United
Keetoowah Band of Cherokee Indians further explained that “All
Keetoowah citizens must have a Certificate of Degree of Indian
Blood (CDIB) indicating at least 1/4 (one-quarter) of Keetoowah
(Cherokee) blood and have direct ancestry to an individual listed
on the 1949 Keetoowah Base Roll or the Dawes Roll. NO
EXCEPTIONS will be made to these requirements.”
At the August 29, 2019 hearing, the court found that all the
noticed tribes had provided responses indicating that the children
were not Indian children within the meaning of ICWA. Thus, it
said, “[a]long with father’s ICWA-020 form, [in] which he
indicated no Indian ancestry, the court is finding, at this time,
there’s no reason to believe that the minor children are Indian
children within the meaning of ICWA.” The court asked whether
any party wished to be heard with regard to Indian ancestry; no
party did. The court ordered the children to be placed with the
prospective adoptive parents and continued the section 366.26
hearing for six months.
The section 366.26 hearing was continued many more times
for a variety of reasons, including the Covid-19 pandemic,
mother’s death, and changes in DCFS’s recommendations.
Ultimately, parental rights were terminated on January 13,
2022, more than seven years after the petition was filed. Father
timely appealed from the order terminating parental rights.
DISCUSSION
Father contends DCFS failed to properly investigate
mother’s claims of Cherokee ancestry because it did not conduct
an ICWA inquiry of mother’s extended family members––
6
specifically, her parents and adult children. He thus urges that
the order terminating parental rights should be conditionally
reversed and the matter remanded to the juvenile court for
further compliance with ICWA.
I. Legal standards.
ICWA was enacted “ ‘to protect the best interests of Indian
children and to promote the stability and security of Indian tribes
and families by the establishment of minimum Federal standards
for the removal of Indian children from their families and the
placement of such children in foster or adoptive homes which will
reflect the unique values of Indian culture . . . .’ [Citation.]”
(In re Isaiah W. (2016) 1 Cal.5th 1, 8 (Isaiah W.); see 25 U.S.C.
§ 1902.)
“Juvenile courts and child protective agencies have ‘an
affirmative and continuing duty to inquire’ whether a dependent
child is or may be an Indian child.” (In re Michael V. (2016)
3 Cal.App.5th 225, 233; see also Isaiah W., supra, 1 Cal.5th at
pp. 9–11; § 224.2, subd. (a).) An “Indian child” is “any unmarried
person who is under age eighteen and is either (a) a member of
an Indian tribe or (b) is eligible for membership in an Indian
tribe and is the biological child of a member of an Indian tribe.”
(25 U.S.C. § 1903(4); see also § 224.1, subd. (a) [adopting federal
definition of “Indian child”].)
The affirmative duty to inquire has several elements. If a
child is removed from his or her parents and placed in the
custody of a county welfare agency, the agency must inquire
whether a child is an Indian child. Such inquiry “includes, but is
not limited to, asking the child, parents, legal guardian, Indian
custodian, extended family members, others who have an interest
in the child, and the party reporting child abuse or neglect,
7
whether the child is, or may be, an Indian child . . . .” (§ 224.2,
subd. (b).) The court also must make an ICWA inquiry when the
parents first appear in court: The court “shall ask each
participant present in the hearing whether the participant knows
or has reason to know that the child is an Indian child” (§ 224.2,
subd. (c)), and must require each party to complete California
Judicial Council Form ICWA-020, Parental Notification of Indian
Status (Cal. Rules of Court, rule 5.481(a)(2)(C)).
If the court or social worker has “reason to believe that an
Indian child is involved in a proceeding,” the court or social
worker must “make further inquiry regarding the possible Indian
status of the child” by, among other things, interviewing the
parents and extended family members, and contacting any tribe
that may reasonably be expected to have information about the
child’s membership, citizenship status, or eligibility. (§ 224.2,
subd. (e)(2).) There is “reason to believe” a child involved in a
proceeding is an Indian child whenever the court or social worker
“has information suggesting that either the parent of the child or
the child is a member or may be eligible for membership in an
Indian tribe.” (§ 224.2, subd. (e)(1).)
If the agency’s inquiry creates a “reason to know” that an
Indian child is involved, notice of the proceedings must be
provided to the identified tribe or tribes. (§ 224.2, subd. (f).)
There is “reason to know” a child is an Indian child if any one of
six statutory criteria is met—e.g., if the court is advised that the
child “is an Indian child,” the child’s or parent’s residence is on a
reservation, the child is or has been a ward of a tribal court, or
either parent or the child possess an identification card
indicating membership or citizenship in an Indian tribe. (§ 224.2,
subd. (d).) Thereafter, the court shall confirm that the agency
8
used due diligence to identify and work with all of the tribes of
which there is reason to know the child may be a member, or
eligible for membership, to verify whether the child is in fact a
member or whether a biological parent is a member and the child
is eligible for membership. (§ 224.2, subd. (g).) A determination
by an Indian tribe that a child is or is not a member of, or eligible
for membership in, that tribe “shall be conclusive.” (§ 224.2,
subd. (h).)
If the juvenile court finds that “proper and adequate
further inquiry and due diligence as required in this section have
been conducted and there is no reason to know whether the child
is an Indian child,” the court may make a finding that ICWA does
not apply to the proceedings, “subject to reversal based on
sufficiency of the evidence.” (§ 224.2, subd. (i)(2).)
II. The trial court did not prejudicially err in finding
that the children are not Indian children and ICWA
does not apply to this case.
Father’s sole contention on appeal is that the trial court
erred in concluding that DCFS sufficiently investigated mother’s
claims of Cherokee ancestry because it failed to inquire of
mother’s extended family––specifically, of her parents and adult
children. For the reasons that follow, we find no prejudicial
error.
Father is correct that mother’s claim of Cherokee ancestry
created “reason to believe” the children were Indian children,
thus requiring further inquiry. It appears no further inquiry was
made of mother’s extended family members, including of her
parents, with whom DCFS had contact. The juvenile court thus
erred by concluding that DCFS conducted an adequate ICWA
inquiry.
9
However, after parental rights have been terminated, we
will return a case to the juvenile court for ICWA error only if the
appellant demonstrates such error was prejudicial. (In re
Ezequiel G. (2022) 81 Cal.App.5th 984, 1014; In re Dezi C. (2022)
79 Cal.App.5th 769, 781, review granted Sept. 21, 2022, S275578;
see also In re M.M. (2022) 81 Cal.App.5th 61, 71, review granted
Oct. 12, 2022, S276099 [declining to follow “the ‘error per se’ line
of cases”].) Here, the inquiry error plainly was not prejudicial.
Mother’s initial disclosure of Cherokee ancestry included her
statement that she was not eligible to be enrolled in or registered
with a Cherokee tribe, suggesting that she had investigated
Cherokee tribal enrollment requirements and learned that she
did not meet them. Mother’s statement was confirmed by the
three federally registered Cherokee tribes, each of which
responded to the ICWA-030 notices mailed by DCFS in
March 2019 that the children were not members or eligible for
tribal membership. One of the three tribes, the United
Keetoowah Band of Cherokee Indians, further explained that all
tribal citizens must be at least one quarter Keetoowah (that is,
must have at least one Keetoowah grandparent) and have direct
ancestry to an individual listed on the 1949 Base Roll or the
Dawes Roll. Because the children were, at best, the great-great-
great grandchildren of a tribal citizen, they were at most 1/32
Cherokee, and thus they clearly did not meet this requirement.
Thus, the concern expressed by many courts––that an agency’s
inaction results in a tribe’s inability to make a determination as
to tribal membership––does not apply here. (Cf. In re Benjamin
M. (2021) 70 Cal.App.5th 735, 745 [“it is in part the tribe’s right
to a determination of a child’s Indian ancestry, but the tribe is
not present, and the agency is charged with obtaining
10
information to make that right meaningful”]; In re Antonio R.
(2022) 76 Cal.App.5th 421, 436 [same]; In re Isaiah W., supra,
1 Cal.5th at p. 13 [“Indian tribes have interests protected by
ICWA that are separate and distinct from the interests of parents
of Indian children”].)
Father suggests that mother’s representation that she was
not eligible for membership in a Cherokee tribe is a red herring
because “a determination of enrollment or eligibility for
enrollment is not up to the parent.” Father’s reasoning is flawed.
While it unquestionably is up to individual tribes to set their own
enrollment requirements, we understand mother’s statement not
to be her own opinion, but instead to be based on information she
had obtained from the relevant tribes or from her family.
Further, as we have said, the tribes confirmed mother’s
statement in their responses to DCFS’s ICWA-030 notices.
As we explained in In re Ezequiel G., supra, 81 Cal.App.5th
at p. 1009, ICWA applies only if a child is an “Indian child”––that
is, if he or she is either (a) “a member of an Indian tribe” or (b) “is
eligible for membership in an Indian tribe and is the biological
child of a member of an Indian tribe.” (25 U.S.C. § 1903(4); see
also § 224.1, subds. (a)–(b); Indian Child Welfare Act
Proceedings, 81 Fed.Reg. 38795 (June 14, 2016) [“The statute
specifies that if the child is not a Tribal member, then the child
must be a biological child of a member and be eligible for
membership, in order for the child to be an ‘Indian child.’ ”].)
Nothing in our appellate record suggests that mother was a
member of a Cherokee tribe or had obtained membership on
behalf of the children. To the contrary, her statements that the
children were ineligible for tribal membership is persuasive
evidence that she had not done so. (See In re Ezequiel G., at
11
p. 1010 [“[A] parent typically will know whether she has applied
for membership for herself or her child—and her disclosure that
she has not will, in most cases, reliably establish that a child is
not an Indian child within the meaning of ICWA”].)
We note in conclusion that this dependency case has been
pending for more than eight years. In all of that time, no one––
including father, in this appeal––has ever suggested that the
children are members of or eligible for membership in an Indian
tribe. Instead, father’s sole argument on appeal is that had
DCFS spoken to additional members of mother’s family, they
might have uncovered additional biographical information that
might have caused a Cherokee tribe to conclude that the children
were eligible for membership. Such speculation, without more,
does not demonstrate prejudicial error.
12
DISPOSITION
The orders terminating parental rights are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL
REPORTS
EDMON, P. J.
I concur:
RICHARDSON (ANNE K.), J.*
* Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
13
LAVIN, J., Dissenting:
For the reasons set forth in my dissent in In re Ezequiel G.
(2022) 81 Cal.App.5th 984, 1015–1025, I would conditionally
affirm the orders and remand for further proceedings. Certainly,
I appreciate that this dependency case has been pending for
years. But the Department of Children and Family Services
(Department) could easily have asked mother’s identified family
members about the children’s possible Indian heritage and
documented those efforts. It did not. Further, nothing in the
record shows how those extended family members would have
responded to questions about the children’s possible Indian
heritage.
I also note that instead of agreeing to a limited remand to
allow the Department’s social workers to ask a few simple
questions, the parties have, inexplicably, spent months litigating
this case on appeal. And this appeal will not be the last word on
whether a parent must make an affirmative showing of prejudice
to support a conditional affirmance and remand where the
Department failed fully to perform its duty of inquiry. This issue
is currently on review in In re Dezi C. (2022) 79 Cal.App.5th 769,
review granted September 21, 2022, S275578, and will not be
decided by our high court for months or years. The delay and
continued lack of finality in this case are detrimental to all
concerned, including the children and their prospective adoptive
parents.
LAVIN, J.
1 | 01-04-2023 | 11-15-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484031/ | Filed 11/15/22 1351 Orizaba Avenue v. Nissani CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
1351 ORIZABA AVENUE, LLC, B305765
Cross-complainant and Los Angeles County
Respondent, Super. Ct. No. BC651307
v.
HOOMAN MICHAEL NISSANI,
Cross-defendant and
Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, David Sotelo, Judge. Affirmed.
McCreary and Duncan J. McCreary for Cross-defendant
and Appellant.
Madden, Jones, Cole & Johnson and Montgomery Cole for
Cross-complainant and Respondent.
____________________
HTL Automotive, Inc. and Hooman Michael Nissani
(together, Tenant) leased commercial property from 1351 Orizaba
Avenue, LLC (Landlord). The lease obliged Tenant to repair the
property, to maintain it, and to surrender it in good order. The
lease addendum warned “the roof of the Premises leaks.” Tenant
did not repair the property during the entire nine-year lease term
and surrendered it in bad shape. The parties sued each other,
with Tenant seeking damages from environmental remediation
efforts unrelated to any roof leaks, and Landlord seeking unpaid
rent, late fees, and damages relating to the property’s condition.
After a bench trial, the trial court awarded Landlord roughly
$750,000 and Tenant nothing. We affirm. Tenant failed to
demonstrate reversible error.
As in other appeals, we presume the trial court reached the
right result. (Jameson v. Desta (2018) 5 Cal.5th 594, 608–609.)
Appellants have the burden to establish error justifying reversal
by presenting pertinent legal authority and factual analysis
supported by appropriate record citations. (Ibid.; Keyes v. Bowen
(2010) 189 Cal.App.4th 647, 655.) They also must provide a
summary of significant facts of record and must state the facts
fairly. (Cal. Rules of Court, rule 8.204(a)(2)(C); Fernandes v.
Singh (2017) 16 Cal.App.5th 932, 940–941, 944.) As we will
explain below, Tenant failed to carry its burden here.
The following principles guide our review. Generally, the
meaning of the parties’ contract is a legal question subject to our
independent review. (See Bear Creek Master Assn. v. Southern
Cal. Investors, Inc. (2018) 28 Cal.App.5th 809, 818–819.) To the
extent Tenant’s appeal challenges the trial court’s factfinding, we
determine whether substantial evidence supports the
findings. (Schmidt v. Superior Court (2020) 44 Cal.App.5th 570,
2
581–582.) Finally, we review a trial court’s refusal to exclude
expert testimony for abuse of discretion. (Burton v. Sanner
(2012) 207 Cal.App.4th 12, 18, 22.)
We now turn to Tenant’s three appellate arguments.
I
Tenant first contends the damages award was improper
because “a significant portion” of it arose from conditions (a leaky
roof) that predated the lease, and a tenant is not responsible for
improving the landlord’s property. There are multiple problems
with this contention.
A
Tenant relies entirely on distinguishable cases involving
different leases.
This lease makes Tenant solely responsible for repairs and
maintenance, including restorations and replacements when
needed to keep the property in good order. We excerpt the key
language from the section titled “Maintenance; Repairs, Utility
Installations; Trade Fixtures and Alterations” and include the
subsection titles. The emphasis is ours:
Section 7.1(a), Lessee’s Obligations: “Lessee shall, at
Lessee’s sole expense, keep the Premises . . . in good order,
condition and repair (whether or not the portion of the Premises
requiring repairs, or the means of repairing the same, are
reasonably or readily accessible to Lessee, and whether or not the
need for such repairs occurs as a result of Lessee’s use, any prior
use, the elements or the age of such portion of the Premises),
including, but not limited to, all equipment or facilities, such as
. . . walls (interior and exterior), foundations, ceilings, roofs, roof
drainage systems, floors, windows, doors . . . located in, on, or
adjacent to the Premises. Lessee in keeping the Premises in good
3
order, condition and repair, shall exercise and perform good
maintenance practices, . . . . Lessee’s obligations shall include
restorations, replacements or renewals when necessary to keep the
Premises and all improvements thereon or a part thereof in good
order, condition and state of repair.”
Section 7.2, Lessor’s Obligations: “it is intended by the
Parties hereto that Lessor have no obligation, in any manner
whatsoever, to repair and maintain the Premises, or the
equipment therein, all of which obligations are intended to be
that of the Lessee. It is the intention of the Parties that the
terms of this Lease govern the respective obligations of the
Parties as to maintenance and repair of the Premises, and they
expressly waive the benefit of any statute now or hereafter in
effect to the extent it is inconsistent with the terms of this
Lease.”
Section 7.4(c), Surrender; Restoration: “Lessee shall
surrender the Premises by the Expiration Date or any earlier
termination date, with all of the improvements, parts and
surfaces thereof broom clean and free of debris, and in good
operating order, condition and state of repair, ordinary wear and
tear excepted. ‘Ordinary wear and tear’ shall not include any
damage or deterioration that would have been prevented by good
maintenance practice.”
The addendum to the lease states: “Lessee will assume all
obligations and liability with respect to use, maintenance, repair
or possession of the Premises during the term of the Lease.
Lessee will at Lessee’s own expense maintain the property in
good mechanical condition and running order, allowing for
reasonable wear and tear.”
4
As mentioned, the addendum also told Tenant the roof
leaks and therefore alerted Tenant to a specific area in need of
repair and maintenance. Yet Tenant concedes it made no repairs
during the tenancy. Tenant has not established the trial court
erred in concluding that the lease was unambiguous and that
Landlord “is entitled to recover damages for the reasonable cost
of repairing the damage to the premises caused by the abject
failure of [Tenant] to perform any maintenance or repair for over
nine years.”
As for Tenant’s cases, Haupt v. La Brea Heating & Air
Conditioning Co. (1955) 133 Cal.App.2d.Supp. 784, 788–789 is
distinguishable because the lease there, unlike the one here, had
no provision regarding the tenant’s duty to make repairs other
than a provision regarding the floor; the court accordingly found
awarding roof-related damages was improper. Haupt made clear
there is no burden to improve property absent an express
covenant to do so. (Ibid.)
In Lynn v. De Pue Warehouse Co. (1962) 198 Cal.App.2d
742, 743–744, 746–747 (Lynn), the court found property damage
met various exceptions to the tenant’s covenant to repair and
therefore was the landlord’s responsibility under the lease.
Tenant points to no applicable lease exception here.
Iverson v. Spang Industries, Inc. (1975) 45 Cal.App.3d 303,
310–311 (Iverson) and Kanner v. Globe Bottling Co. (1969) 273
Cal.App.2d 559, 563, 565–566 (Kanner) rely on Haupt and Lynn
and do not involve repair and replacement provisions like those
here. Thus their comments regarding a tenant’s general lack of
duty to improve property or to repair preexisting damage are not
controlling.
5
In dicta, most of these cases mention a general rule of
interpreting repair covenants to avoid an unwarranted burden of
improvement on tenants. (Lynn, supra, 198 Cal.App.2d at p. 746;
Iverson, supra, 45 Cal.App.3d at p. 310; Kanner, supra, 273
Cal.App.2d at p. 565.) But Tenant’s trial court and appellate
court presentations do not establish any such burden was
unwarranted here, in light of the lease language and Tenant’s
failure to make any repairs during the lease term.
B
The second problem with Tenant’s damages argument is it
springs from a faulty premise. Tenant maintains it was
undisputed the roof was dilapidated at the start of the lease.
This is incorrect, and there was substantial evidence that much
roof-related damage arose during the tenancy. Landlord
witnesses testified there was one leak at the outset of the lease,
roof cracks present at that time are not uncommon and were
repairable, and the property was in “decent shape” before Tenant
leased it; but after the tenancy, water poured into the building
everywhere “like a waterfall,” the roof was “severely
compromised” and beyond repair, and the water damage was,
according to one expert, “probably the worst situation” he had
ever seen.
Nissani and other Tenant witnesses disputed the roof was
ever in good shape, claiming the preexisting roof damage and
leaks were extensive. The trial court sided with Landlord’s
witnesses over Tenant’s. We may not substitute the trial court’s
assessment of witnesses’ credibility with ours.
C
A third problem relates to Tenant’s insufficient argument
and presentation of the facts.
6
Landlord’s claimed damages concerned physical damage to
many parts of the property, including damage seemingly
unrelated to roof leaks. For example, there was testimony about
removed bathrooms, a nonfunctioning/“deconstructed” HVAC
system, a damaged sprinkler system, and doors with holes and
missing or broken push bars. Yet Tenant’s briefs never spell out
what damage the award covers. Tenant says Landlord should
not have received a new roof and other repairs necessitated by
“the leaking roof” but never identifies what these repairs are.
(There was testimony the property actually was five connected
buildings with either wood or metal roofs.) Accordingly, even if
Tenant’s broad arguments about roof and related water damage
were correct, Tenant has not established how the award is
erroneous using references and citations to the evidence.
Our job is not to develop appellants’ arguments for them or
to scour the record for evidence supporting their positions. (See
United Grand Corp. v. Malibu Hillbillies, LLC (2019) 36
Cal.App.5th 142, 153, 156; see also Nielsen v. Gibson (2009) 178
Cal.App.4th 318, 324 [“[A]n appellant must not only present an
analysis of the facts and legal authority on each point made, but
must also support arguments with appropriate citations to the
material facts in the record. If he fails to do so, the argument is
forfeited.”].)
II
Tenant next argues Landlord improperly passed off its
renovation costs through its expert, and the trial court should
have excluded this expert’s testimony. The expert studied the
damage to the property, determined what it would cost to repair
the damage, and tried to include only repairs attributable to the
damage in his report, not upgrades or improvements. He
7
admittedly did not know the condition of the property at the
outset of the tenancy; he got involved in the property after
Tenant left.
This does not mean the testimony was irrelevant or
improper, however, as the Landlord’s principal was a gatekeeper
on damages: he was familiar with the condition of the property
before the tenancy and testified he only sought damages
attributable to the tenancy, excluding normal wear and tear, and
he did not include renovations. The expert’s testimony was
needed to establish the costs of remedying the damage identified.
It was relevant. The trial court properly noted Tenant’s
objections went to the weight of the evidence and properly
permitted the testimony.
III
Finally, Tenant argues the waste cause of action fails
because there was no evidence of a substantial or permanent
diminution of the property’s market value, as required under
cases like Smith v. Cap Concrete, Inc. (1982) 133 Cal.App.3d 769,
776–777. Proof of the amount of property damage is not enough,
Tenant maintains. But Smith signals courts can infer a drop in
market value from certain property conditions, and the roof-
related testimony of Landlord’s witnesses highlighted above
arguably suffices. (Id. at pp. 777–778; see also id. at p. 777 [loss
of market value is a measure that “will be applied flexibly”].)
Even if it did not, the trial court’s finding of waste was
harmless: the court did not segregate damages between
Landlord’s two causes of action (breach of contract and waste)
and did not say what damages, if any, were attributable to the
waste claim alone.
8
Tenant has established neither improper damages nor
error requiring reversal.
DISPOSITION
We affirm the judgment and award costs to 1351 Orizaba
Avenue, LLC.
WILEY, J.
We concur:
STRATTON, P. J.
HARUTUNIAN, J.*
* Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
9 | 01-04-2023 | 11-15-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484025/ | Filed 11/15/22 In re S.R. CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
In re S.R., A Person Coming B316021
Under the Juvenile Court Law.
(Los Angeles County
LOS ANGELES COUNTY Super. Ct. No. 19CJP04919A)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
B.S.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Lisa A. Brackelmanns, Juvenile Court Referee.
Affirmed.
Suzanne M. Nicholson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, Acting County Counsel, Kim Nemoy,
Assistant County Counsel, and Aileen Wong, Deputy County
Counsel, for Plaintiff and Respondent.
________________________
B.S. (mother) appeals from the juvenile court’s order
terminating parental rights over her three-year-old daughter,
S.R., pursuant to Welfare and Institutions Code 1 section 366.26.
Mother contends the juvenile court and the Los Angeles County
Department of Children and Family Services (DCFS) failed to
comply with the inquiry and notice provisions of the Indian Child
Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) and related
California law. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
I. The Dependency Proceedings
On August 2, 2019, DCFS filed a section 300 petition on
behalf of then one-month-old S.R. The petition, as later
amended, alleged that mother had a history of domestic violence
with S.R.’s alleged father, J.F., and another male companion;
that mother had a history of mental and emotional problems;
that mother and J.F. had a history of substance abuse, including
cocaine and marijuana; that S.R.’s older half-sibling was a prior
dependent of the court and had received permanent placement
services based on mother’s substance abuse; and that S.R. had a
positive toxicology screen for marijuana at birth. On August 5,
2019, S.R. was detained from mother and placed in foster care.
At the adjudication hearing held on October 15, 2020, the
juvenile court sustained the amended petition under section 300,
subdivisions (b) and (j) based on mother’s history of substance
abuse, mental and emotional problems, and domestic violence
with an unrelated male companion. The counts related to J.F.
were dismissed following a paternity test that showed he was not
1 Unless otherwise stated, all further statutory references
are to the Welfare and Institutions Code.
2
S.R.’s biological father. At the disposition hearing held on
November 16, 2020, the court declared S.R. a dependent of the
court, removed the child from mother’s custody, and ordered the
bypass of reunification services pursuant to section 361.5,
subdivision (b)(10).
After several continuances, the section 366.26 permanency
planning hearing for S.R. was held on October 26, 2021. The
juvenile court found by clear and convincing evidence that the
child was adoptable, and that no exception to the termination of
parental rights applied. The court terminated parental rights
over S.R. and transferred care, custody and control of the child to
DCFS for adoptive planning and placement. S.R.’s foster
parents, with whom she had been placed since being detained
from mother, were identified as her prospective adoptive parents.
Mother filed a timely notice of appeal from the order
terminating her parental rights.
II. The ICWA Investigation and Findings
At the August 5, 2019 detention hearing, mother filed a
Parental Notification of Indian Status form (Judicial Council
Form ICWA-020) indicating that she may have Indian ancestry
through the “Blackfoot” tribe. Upon inquiry by the juvenile court,
mother stated that her “Blackfoot” ancestry was on her father’s
side of the family but she did not know if anyone was a registered
tribal member. The court ordered DCFS to investigate mother’s
claim.
On October 7, 2019, DCFS mailed a first set of ICWA
notices for S.R. to the Blackfeet Tribe of Montana, the Bureau of
Indian Affairs, and the Secretary of the Interior. The social
worker certified that she sent the notices via registered or
certified mail with return receipt requested. However, no proofs
3
of mailing or return receipts were filed with the court. The
notices included mother’s married name, current and former
addresses, and date and place of birth. The notices also listed the
names, current addresses, dates of birth, and places of birth of
S.R’s maternal grandparents, as well as the names, dates of
birth, and places of birth of one set of S.R.’s maternal great-
grandparents. For each individual identified in the notices, the
box for “Tribe or Band, and Location” was marked “Does not
apply,” and the box for “Tribal membership or enrollment
number” was marked “Unknown.” The section on “Other relative
information” was left blank except for the boxes in that section
labeled “Tribe[,] band and location,” which were marked “Does
not apply.” On the section for “Indian Custodian Information,”
however, the “Tribe or Band, and Location” was identified
as “Blackfeet Tribe of Montana.”
The Blackfeet Tribe responded in a letter dated December
10, 2019 that S.R. was not listed on the tribal rolls. The letter
also stated, “As of August 30, 1962, our blood quantum
requirement for enrollment is 1/4 Blackfeet blood. The above
children is/are not eligible for enrollment, and the child(ren)
is/are not domiciled on the Blackfeet Indian reservation.” The
letter, however, added, “If you are able to gather more
information on the ancestry of the parents, please contact me
again and I will review the tribal rolls.”
On December 18, 2019, DCFS spoke to S.R.’s maternal
grandfather, G.R., who provided further information regarding
the relatives on his side of the family with Indian ancestry. G.R.
reported his family is from Honduras but his grandmother was
affiliated with the “Blackfoot” tribe. G.R. also stated he had
received documentation indicating that he “in fact is Blackfoot”
4
but did not have such documentation in his possession. G.R.
provided the names, dates of birth, and cities and states of
residence for S.R.’s other set of maternal great-grandparents,
As.R. and An.R. According to G.R., As.R. resided in Mandeville,
Louisiana, and An.R. resided in Dallas, Texas. G.R. also
provided the name, approximate date of birth, approximate date
of death, and place of death for S.R.’s maternal great-great-
grandmother, and the name, approximate date of death, and
place of death for the child’s maternal great-great-grandfather.
On December 20, 2019, DCFS mailed a second set of ICWA
notices to the Bureau of Indian Affairs and the Secretary of the
Interior. There is no indication in the record, however, that these
second notices were sent to any tribe. The second notices added
mother’s maiden name, but otherwise included the same
biographical information as the first notices regarding mother,
the maternal grandparents, and one set of the maternal great-
grandparents. The second notices also added the name and date
of birth of S.R.’s other maternal great-grandmother, As.R., and
the name, date of birth, and country of birth of the other
maternal great-grandfather, An.R.. The notices did not, however,
include the places of residence of As.R. and An.R. , even though
G.R. had provided this information to DCFS. On the section
for “Indian Custodian Information,” the “Tribe or Band, and
Location” was again identified as “Blackfeet Tribe of Montana.”
In a response dated January 7, 2020, the Bureau of Indian
Affairs stated that it had received the ICWA notice for S.R., and
that the notice contained insufficient information to determine
tribal affiliation.
On February 18, 2020, DCFS mailed a third set of ICWA
notices to the Bureau of Indian Affairs and the Secretary of the
5
Interior, but not to any tribe. DCFS also filed certified mail
receipts for the notices sent to the Bureau of Indian Affairs and
the Secretary of Interior. The third notices contained the same
biographical information as the second notices regarding mother,
the maternal grandparents, and both sets of maternal great-
grandparents, again omitting the latter set of great-
grandparents’ places of residence as provided by G.R. The
“Blackfeet Tribe of Montana” was again named as the relevant
tribe in the “Indian Custodian Information” section.
On July 22, 2020, DCFS mailed a fourth set of ICWA
notices to the Bureau of Indian Affairs and the Secretary of the
Interior, but not to any tribe. Certified mail receipts for the
notices sent to the Bureau of Indian Affairs and the Secretary of
Interior were filed with the court. The fourth notices included
the same biographical information as the second and third
notices regarding mother, the maternal grandparents, and both
sets of maternal great-grandparents. These notices, however,
added that the maternal grandmother denied any tribal
membership, and that the maternal grandfather, G.R., claimed
membership in the Blackfeet Tribe. The section on “Other
relative information” was again left blank except for the boxes
labeled “Tribe[,] band and location,” which were all marked “Does
not apply.” Like the prior notices, the fourth notices identified
the “Blackfeet Tribe of Montana” as the relevant tribe in the
“Indian Custodian Information” section.
In a last minute information report filed on July 30, 2020,
DCFS indicated that, on July 24, 2020, the social worker sent an
email to the ICWA coordinator for the Blackfeet Tribe regarding
S.R.’s ICWA eligibility. According to DCFS, it had not received
any further responses about the child’s ICWA status, and mother
6
had reported that she did not have any additional information
about her family’s tribal affiliation apart from that provided by
the maternal grandfather.
In a last minute information report filed on October 14,
2020, DCFS informed the court that, due to an oversight, it
had neglected to send the fourth set of notices to the Blackfeet
Tribe. DCFS also stated that it had re-generated the notices
to include the Blackfeet Tribe of Montana, and had sent a fifth
set of notices via certified mail on October 1, 2020. As further
reported by DCFS, the notice to the tribe arrived at the post office
in Browning, Montana on October 10, 2020, and was available for
pick up as of that date. On October 8, 2020, the social worker
attempted to call the tribe’s ICWA coordinator, but the call went
unanswered and the social worker was unable to leave a
voicemail message. On October 13, 2020, the social worker also
emailed the tribe’s ICWA coordinator to further inquire about
S.R.’s eligibility status, but had not received a response.
Certified mail receipts were filed for the notices sent to the
Blackfeet Tribe of Montana, Bureau of Indian Affairs, and the
Secretary of Interior, which confirmed that these notices were
mailed on October 1, 2020.
At the October 15, 2020 adjudication hearing, the juvenile
court found that ICWA did not apply to this case.2 At the
2 At the adjudication hearing, the court granted J.F.’s
request to be dismissed from the case based on the paternity
test results showing that he was not S.R.’s biological father.
Although DCFS conducted due diligence as to other alleged
fathers identified by mother, none of them appeared in
the proceedings, and therefore, no inquiry could be made as to
S.R.’s possible Indian ancestry on her paternal side.
7
November 16, 2020 disposition hearing, counsel for DCFS noted
the court previously had found that ICWA did not apply, and that
the alleged father, J.F., was no longer a part of the case. In
response, the court stated it “agree[d] with all those previous
prior findings that the court made on ICWA notice and
paternity.”
DISCUSSION
On appeal, mother argues that both the juvenile court and
DCFS failed to comply with the inquiry and notice requirements
of ICWA and related California law. Mother specifically asserts
that the evidence was insufficient to support the court’s finding
that ICWA did not apply because DCFS failed to conduct an
adequate further inquiry into mother’s claim of Indian ancestry,
and failed to properly notice the relevant tribe. In response,
DCFS contends that it satisfied its duty of further inquiry by
interviewing the maternal grandfather and sending multiple sets
of ICWA notices, and that any defects in notice were harmless
because there was no reason to know S.R. was an Indian child.
We conclude there was substantial evidence to support the
juvenile court’s finding that ICWA did not apply because DCFS
fulfilled its duty of inquiry, and based on such inquiry, there was
no reason to know S.R. was an Indian child. We further conclude
mother cannot show error in DCFS’s alleged failure to properly
notice the tribe because there was no reason to know S.R. was
an Indian child, and thus, ICWA notice was not required.
I. ICWA Inquiry and Notice Requirements
ICWA provides that “[i]n any involuntary proceeding in
a [s]tate court, where the court knows or has reason to know
that an Indian child is involved, the party seeking the foster care
placement of, or termination of parental rights to, an Indian child
8
shall notify the parent or Indian custodian and the Indian child’s
tribe” of the pending proceedings and the right to intervene. (25
U.S.C. § 1912(a).) Similarly, California law requires notice to
the child’s parent or Indian custodian and the child’s tribe if
there is reason to know that an Indian child is involved in the
proceeding. (§ 224.3, subd. (a).) An “ ‘Indian child’ ” is defined as
“any unmarried person who is under age eighteen and is either
(a) a member of an Indian tribe or (b) is eligible for membership
in an Indian tribe and is the biological child of a member of an
Indian tribe.” (25 U.S.C. § 1903(4); § 224.1, subd. (a).)
Both juvenile courts and child protective agencies “have
an affirmative and continuing duty to inquire whether a child for
whom a petition under Section 300 . . . may be or has been filed,
is or may be an Indian child.” (§ 224.2, subd. (a); see In re Isaiah
W. (2016) 1 Cal.5th 1, 14 [“juvenile court has an affirmative and
continuing duty in all dependency proceedings to inquire into a
child’s Indian status”].) Such duty generally “ ‘can be divided
into three phases: the initial duty to inquire, the duty of further
inquiry, and the duty to provide formal ICWA notice.’ ” (In re
Y.W. (2021) 70 Cal.App.5th 542, 552.)
California law provides that the duty to inquire “begins
with the initial contact” (§ 224.2, subd. (a)) and requires the
juvenile court and child protective agency to ask all relevant
involved individuals whether the child is or may be an Indian
child (§ 224.2, subds. (a)-(c)). If a child is placed in the agency’s
temporary custody, the agency must inquire whether the child is
an Indian child by asking a nonexclusive group that includes the
child, the parents, and extended family members. (§ 224.2, subd.
(b)). At the first appearance of each party, the court must inquire
whether the appearing party knows or has reason to know that
9
the child is an Indian child. (§ 224.2, subd. (c).) The court also
must instruct the parties to inform the court if they subsequently
receive information that provides reason to know the child is
an Indian child. (Ibid.)3
If the juvenile court or the child protective agency “has
reason to believe that an Indian child is involved in a proceeding,
but does not have sufficient information to determine that there
is reason to know that the child is an Indian child,” the court or
social worker “shall make further inquiry regarding the possible
Indian status of the child . . . as soon as practicable.” (§ 224.2,
subd. (e).) “[R]eason to believe” means the court or social worker
has information “suggesting that either the parent of the child or
the child is a member or may be eligible for membership in an
Indian tribe.” (§ 224.2, subd. (e)(1).) “Further inquiry includes,
but is not limited to . . . [i]nterviewing the parents, Indian
custodian, and extended family members,” and “[c]ontacting
the tribe or tribes and any other person that reasonably can be
expected to have information regarding the child’s membership,
citizenship status, or eligibility.” (§ 224.2, subd. (e)(2)(A),(C).)
3 There is “reason to know” a child is an Indian child when:
a person having an interest in the child informs the juvenile court
the child is an Indian child; the residence of the child, the child’s
parents, or the child’s Indian custodian, is on a reservation or in
an Alaskan Native village; a participant in the proceeding, officer
of the court, Indian tribe or organization, or agency informs the
court it has discovered information indicating the child is an
Indian child; the child gives the court reason to know that the
child is an Indian child; the court is informed that the child is or
has been a ward of a tribal court; or the court is informed either
the parent or the child possesses an identification card indicating
membership or citizenship in an Indian tribe. (§ 224.2, subd. (d).)
10
Both federal and state law set forth specific requirements
for providing ICWA notice once there is reason to know that an
Indian child is involved in the proceeding. Under the applicable
federal regulations, the juvenile court must ensure that the party
seeking a foster care placement or termination of parental rights
promptly send notice to the child’s tribe, the child’s parents, and
if applicable, the child’s Indian custodian. (25 C.F.R. § 23.111(a)-
(c) (2022).) California law likewise requires that ICWA notice be
sent to the child’s parents or legal guardian, the Indian
custodian, if any, and the child’s tribe. (§ 224.3, subd. (a); see
Cal. Rules of Court, rule 5.481(c)(1) [“[i]f it is known or there is
reason to know that an Indian child is involved . . ., the social
worker . . . must send Notice of Child Custody Proceeding for
Indian Child (form ICWA-030) to the parent or legal guardian
and Indian custodian of an Indian child, and the Indian child’s
tribe”].) Both federal and state law further require that the
notices be sent by registered or certified mail with return receipt
requested (25 C.F.R. § 23.111(c); § 224.3, subd. (a)(1)), and that
copies of the notices, along with any return receipts or other
proofs of services, be filed with the court (25 C.F.R. § 23.111(a)(2);
§ 224.3, subd. (c)).
“If the [juvenile] court makes a finding that proper and
adequate further inquiry and due diligence . . . have been
conducted and there is no reason to know whether the child is an
Indian child, the court may make a finding that [ICWA] does not
apply to the proceedings, subject to reversal based on sufficiency
of the evidence.” (§ 224.2, subd. (i)(2).) A finding that ICWA does
not apply thus “ ‘ “implies that . . . social workers and the court
did not know or have a reason to know the children were Indian
children and that social workers had fulfilled their duty of
11
inquiry.” ’ ” (In re Josiah T. (2021) 71 Cal.App.5th 388, 401.) We
generally review the juvenile court’s ICWA findings under the
substantial evidence test, “ ‘ “which requires us to determine if
reasonable, credible evidence of solid value supports the court’s
order.” ’ ” (Ibid.) “ ‘ “[W]e do not consider whether there is
evidence from which the [juvenile] court could have drawn a
different conclusion but whether there is substantial evidence to
support the conclusion that the court did draw.” ’ ” (In re Q.M.
(2022) 79 Cal.App.5th 1068, 1080.)
II. Substantial evidence supported the juvenile court’s
finding that ICWA did not apply to the proceedings
In this case, mother’s statements in her ICWA-20 form
and at her first court appearance, indicating that she may have
“Blackfoot”4 ancestry on the paternal side of her family, triggered
DCFS’s duty to conduct further inquiry into S.R.’s possible Indian
ancestry. DCFS does not contend otherwise, nor could it since
the juvenile court ordered it to investigate mother’s claim at the
August 5, 2019 detention hearing. (See, e.g., In re T.G. (2020)
58 Cal.App.5th 275, 292 [mother’s ICWA-20 form declaring her
belief she had Cherokee ancestry “unquestionably provided
4 “[T]here is frequently confusion between the Blackfeet
tribe, which is federally recognized, and the related Blackfoot
tribe, which is found in Canada and thus not entitled to notice of
dependency proceedings. When Blackfoot heritage is claimed,
part of the [a]gency’s duty of inquiry is to clarify whether the
parent is actually claiming Blackfoot or Blackfeet heritage so
that it can discharge its additional duty to notice the relevant
tribes.” (In re L.S. (2014) 230 Cal.App.4th 1183, 1198.) Here,
it appears DCFS believed ancestry was claimed through the
Blackfeet tribe because the agency identified the Blackfeet Tribe
of Montana as the relevant tribe in the ICWA notices it sent.
12
reason to believe Indian children might be involved in these
dependency proceedings and triggered the Department’s duty
to make further inquiry”]; In re A.M. (2020) 47 Cal.App.5th 303,
322 [mother’s statement that she believed she may have Indian
ancestry with the Blackfeet and Cherokee tribes but was not
registered “was sufficient to require further inquiry, as the
juvenile court ordered”].)
Rather, the parties dispute whether the evidence was
sufficient to support a finding by the juvenile court that DCFS
adequately discharged its duty to further inquire into S.R.’s
possible Indian ancestry. DCFS argues that it satisfied its
duty of further inquiry because it interviewed the maternal
grandfather, G.R., about his Indian heritage and sent a total of
five sets of ICWA notices, each of which included the maternal
grandfather’s name, current address, date of birth, and country
of birth. Mother asserts, however, that DCFS’s inquiry was
insufficient because there were several other known extended
family members of whom no inquiry was ever made. Mother
specifically identifies the maternal grandmother, a maternal
aunt, and the maternal great-grandparents, As.R. and An.R.,
as additional relatives that DCFS should have interviewed.
Based on the record before us, we conclude the juvenile court
reasonably could find that DCFS conducted an adequate further
inquiry into S.R.’s possible Indian ancestry, and that, based on
such inquiry, there was no reason to know S.R. was an Indian
child. The court’s finding that ICWA did not apply accordingly
was supported by substantial evidence.
In response to the information provided by mother about
her family’s “Blackfoot” ancestry, DCFS conducted an adequate
further inquiry by interviewing the maternal grandfather, G.R.,
13
and by contacting the Bureau of Indian Affairs, the Secretary of
the Interior, and the Blackfeet Tribe of Montana to investigate
mother’s claim. In his interview with DCFS, G.R. reported that
his now-deceased grandmother, the child’s maternal great-great-
grandmother, was affiliated with the “Blackfoot Tribe,” and that
G.R. previously had documentation indicating that he “in fact is
Blackfoot.” G.R. provided biographical information about the
child’s maternal great-grandparents, As.R. and An.R., including
their names, dates of birth, and cities and states of residence.
G.R. also provided biographical information about the child’s
maternal great-great-grandparents, including the great-great-
grandmother’s married name, approximate date of birth,
approximate date of death, and city and state of death.
The fifth set of ICWA notices that DCFS prepared and sent
to the Blackfeet Tribe on October 1, 2020 included identifying
information about mother, the maternal grandparents, and both
sets of maternal great-grandparents. The notices also indicated
that the maternal grandfather, G.R., was claiming membership
in the Blackfeet Tribe. In addition, the social worker reported
that she emailed the Blackfeet Tribe’s ICWA coordinator on two
separate occasions to further inquire about S.R.’s eligibility for
membership in the tribe. Apart from its initial letter indicating
that S.R. was not listed on the tribal rolls, the Blackfeet Tribe
did not respond to any of DCFS’s further inquiries.
Mother contends that DCFS did not satisfy its duty of
further inquiry because it failed to make any inquiry of either
the maternal grandmother or a maternal aunt, both of whom
were known to DCFS during the proceedings. The record reflects,
however, that DCFS must have asked the maternal grandmother
about her Indian ancestry because the ICWA notices specifically
14
stated that the maternal grandmother had denied any tribal
membership. The record further reflects that mother solely
had identified her father’s side of the family as having Indian
ancestry, and as discussed, DCFS interviewed the maternal
grandfather, G.R., about his tribal affiliation. While it appears
DCFS did not make any inquiry of the maternal aunt, there is no
indication that this relative might have possessed information
about the maternal grandparents’ Indian ancestry that was
different from, or in addition to, that provided by the maternal
grandparents themselves. Rather, based on the ICWA-related
inquiries made to both the maternal grandmother and the
maternal grandfather, DCFS reasonably could have concluded
that no further meaningful information about S.R.’s Indian
ancestry could be obtained from the maternal aunt. (See In re
Darian R. (2022) 75 Cal.App.5th 502, 510 [where parents and
paternal aunt denied Indian ancestry, record did not support
“unvarnished contention” that additional interviews of extended
family members would have “meaningfully elucidated the
children’s Indian ancestry”]; In re D.S. (2020) 46 Cal.App.5th
1041, 1053 [even if child’s great-grandmother was person
reasonably expected to have information regarding the child’s
Indian status, social services agency could reasonably conclude
from its contact with child’s aunt “that no further inquiry was
needed because there was no further information of value to
obtain from this third party”].)
Mother also claims DCFS failed to conduct an adequate
further inquiry because it did not make any effort to contact the
maternal great-grandparents, As.R. and An.R., even though it
had information about where they lived. The record reflects,
however, that the maternal grandfather, G.R., solely provided
15
DCFS with each great-grandparent’s name, date of birth, and city
and state of residence. There is no indication that G.R. gave a
current address, telephone number, or other contact information
for these individuals. Rather, the juvenile court reasonably could
have inferred from the record that, if G.R. had an available
means of contacting either of the maternal great-grandparents,
DCFS would have obtained such information from him and
included it in its reports. As this court has observed, “[w]hile we
believe it reasonable in many cases to require DCFS to follow up
on leads provided by the parents, we cannot ask the agency to
. . . interview individuals for whom no contact information has
been provided.” (In re Q.M., supra, 79 Cal.App.5th at p. 1082;
see In re A.M., supra, 47 Cal.App.5th at p. 323 [“ICWA does not
obligate the court or [child protective agency] ‘to cast about’ for
investigative leads”]; In re Charlotte V. (2016) 6 Cal.App.5th 51,
58 [speculative to assume that relatives interviewed by child
protective agency had detailed information about direct lineal
ancestors because they “were very forthcoming about [the child’s]
Indian ancestry” and “[p]resumably, they would have provided
that information if it was known”].)
Moreover, based on the information provided by G.R. about
the family’s tribal affiliation, the juvenile court reasonably could
have found that DCFS fulfilled its duty of inquiry, and that there
was no reason to know S.R. was an Indian child. While G.R.
stated that he previously had received documentation showing
that he “in fact is Blackfoot,” he did not indicate whether he was
a registered member of the tribe. He also did not provide any
information suggesting that either S.R. or the child’s mother was
a member of the tribe or was eligible for membership in the tribe.
(§ 224.1, subd. (e)(1).) Further inquiry is necessary to help the
16
juvenile court or the child protective agency “determine whether
there is reason to know a child is an Indian child.” (§ 224.2, subd.
(e)(2).) However, there is reason to know a child is an Indian
child only when one of six statutory criteria is met —e.g., (1) the
court has been advised that the child is an Indian child, (2) the
child’s or parent’s residence is on a reservation, (3) any
participant in the proceeding informs the court that it has
discovered information indicating the child is an Indian child,
(4) the child gives the court reason to know that he or she is an
Indian child, (5) the child is or has been a ward of a tribal court,
or (6) either parent or the child possess an identification card
indicating membership or citizenship in an Indian tribe. (§ 224.2,
subd. (d).) Here, none of the information provided by G.R. gave
DCFS or the juvenile court a reason to know S.R. was an Indian
child. Accordingly, on this record, there was sufficient evidence
for the court to conclude that an adequate further inquiry had
been made.
III. DCFS was not required to provide notice to the tribe
In addition to arguing that DCFS failed to satisfy its duty
of inquiry, Mother also asserts that DCFS did not properly notice
the relevant tribe because the ICWA notices that it sent to the
Blackfeet Tribe omitted certain biographical information about
S.R.’s maternal family. Mother further argues that the ICWA
notices were defective because DCFS did not file return receipts
for the notices as required by section 224.3, subdivision (c), and
the juvenile court did not wait 10 days after the tribe’s receipt of
the fifth set of notices to determine whether ICWA applied as
required by section 224.3, subdivision (d). Mother’s arguments
regarding notice lack merit, however, because notice to the tribe
was not required in this case.
17
ICWA notice is required only if, after initial and further
inquiries, there is “reason to know” that an Indian child is
involved in the proceeding. (§§ 224.2, subd. (f), 224.3, subd. (a).)
As we have described, there is “reason to know” a child is an
Indian child if any one of six statutory criteria is met. (§ 224.2
subd. (d).) In this case, because none of the criteria were met,
the duty to provide ICWA notice was never triggered. (See In re
Q.M., supra, 79 Cal.App.5th at p. 1084 [rejecting mother’s claim
that notices to tribes failed to provide complete information for
direct lineal ancestors because there was no reason to know the
child was an Indian child, and thus, ICWA notice was not
required]; In re Austin J. (2020) 47 Cal.App.5th 870, 887 [juvenile
court did not err in failing to ensure notice was provided in
accordance with ICWA because statements by maternal family
that children may have Cherokee ancestry did not provide reason
to know an Indian child was involved in the proceeding].) Any
deficiencies in the notices sent by DCFS, therefore, were legally
irrelevant. (In re Q.M., at p. 1084.)
18
DISPOSITION
The section 366.26 order terminating parental rights over
S.R. is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
RICHARDSON (ANNE K.), J.*
We concur:
LAVIN, Acting P. J.
EGERTON, J.
*Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
19 | 01-04-2023 | 11-15-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8484024/ | Filed 11/15/22 In re Star K. CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has
not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
In re STAR K., a Person Coming B317477
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No.
18CCJP08194)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
SHANNON K.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Debra R. Archuleta, Judge. Conditionally
affirmed and remanded with directions.
Janette Freeman Cochran, under appointment by the Court
of Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, and Brian Mahler, Deputy County
Counsel, for Plaintiff and Respondent.
__________________________
Shannon K. (Mother) appeals from the juvenile court’s
order terminating her parental rights over four-year-old Star K.
under Welfare and Institutions Code section 366.26.1 Mother
contends the juvenile court erred in finding the beneficial
parental relationship exception to termination of parental rights
did not apply. Mother also contends the Los Angeles County
Department of Children and Family Services (Department) and
the juvenile court failed to comply with the inquiry and notice
provisions of the Indian Child Welfare Act of 1978 (25 U.S.C.
§ 1901 et seq.; ICWA) and related California law.
The juvenile court did not abuse its discretion in finding
the beneficial parental relationship exception did not apply.
However, the Department and the juvenile court failed to comply
with the inquiry and notice provisions of ICWA and related
California law, and the error was prejudicial. We conditionally
affirm and remand for the juvenile court and the Department to
comply with ICWA and California law.
1 Further undesignated statutory references are to the
Welfare and Institutions Code.
2
FACTUAL AND PROCEDURAL HISTORY
A. The Referral, Dependency Petition, and Detention
On November 29, 2018 the Department received a referral
alleging general neglect and emotional abuse of one-year-old Star
by Mother and Shane K. (Father).2 The referral alleged Mother
and Father were living in a small hotel room with Star, were
current users of methamphetamine, and fought with each other
in Star’s presence while under the influence of drugs. On the day
of the referral, a social worker visited the hotel and interviewed
Father. Father stated he and Mother recently had a verbal
altercation during which Mother threw a cell phone, but he
denied physical violence between them. After some equivocation,
Father stated he used “‘dope and marijuana,’” and Mother also
used “‘dope.’”
On November 30 the social worker interviewed Mother,
who stated she was unhoused and Father had previously
abandoned her and Star for three weeks. Mother admitted she
and Father would “‘yell and get loud,’” but she denied any
physical violence between them. Star had no visible marks or
bruises. Mother denied using drugs, stating she had been “‘clean
for about two years,’” and Father only smoked marijuana.
On December 26 the Department filed a dependency
petition on behalf of Star alleging under section 300,
subdivision (b)(1), that Father had a history of substance abuse
2 Father did not appear in the juvenile court proceeding and
is not a party to the appeal. The Department filed declarations of
due diligence in August 2019 and April 2021 detailing its
unsuccessful efforts to locate Father, who is reported to be
unhoused.
3
and was a current abuser of methamphetamine and marijuana,
and Mother was a current abuser of illicit drugs including
methamphetamine, which rendered both parents incapable of
providing regular care and supervision of Star and placed Star at
risk of serious physical harm. The petition also alleged Mother
failed to protect Star from Father’s substance abuse by allowing
Father in the home with access to Star. At the December 27
detention hearing, the juvenile court3 detained Star. The court
ordered monitored visitation for Mother with on-demand drug
testing.
B. The Jurisdiction and Disposition Hearing
At the time of the January 18, 2019 jurisdiction and
disposition report, Mother was living with the maternal
grandparents. Star’s caregiver, Amy O., reported Mother visited
with Star one to two times per week for two hours per visit.
During these visits, “Star goes to mother when she sees her, and
mother engages appropriately with [S]tar.” On December 28,
2018 Mother tested positive for methamphetamine (after failing
to show up for November 30 and December 17 tests). Mother
admitted she used methamphetamine on the day of the positive
test but denied she used it at any other time in the prior three
years, asserting she was so “‘hopeless’” at having Star taken
away that she used drugs one time. On about January 4, 2019
Mother again tested positive for methamphetamine.
3 Juvenile Court Referee Robin R. Kesler.
4
At the February 8, 2019 jurisdiction and disposition
hearing, the juvenile court4 sustained the allegations of the
petition under section 300, subdivision (b)(1), and declared Star a
dependent of the court. The court found Father’s statements to
the social worker that he and Mother used drugs to be “highly
credible” and Mother’s excuses for her positive drug tests, that
her positive tests were due to her use of a decongestant, were not
credible. The court also found “ongoing volatility” between
Mother and Father and they threw things during their
arguments. The court concluded, “[T]here’s a nexus between
methamphetamine use here, [and] risk of serious physical harm.
Not only is this a child of tender years with parents using while
taking care of her, but also the use itself brings about volatility
and violence that places the child at risk of serious physical
harm.”
The juvenile court removed Star from Mother’s and
Father’s custody and ordered reunification services for Mother
with monitored visits for a minimum of two times per week for
two hours each visit. The court further ordered Mother to
complete a full drug/alcohol treatment program with aftercare,
12-step program with court card and sponsor, parenting classes,
and individual counseling, and to submit to weekly random and
on-demand drug/alcohol testing. At the Department’s request,
the court admonished Mother the proceedings were confidential
and she should not post about the proceedings on social media.
Mother appealed the jurisdiction findings and disposition order,
4 Judge Kim L. Nguyen presided over the jurisdiction and
disposition hearing and the six-month review hearing.
5
and we affirmed. (In re Star K. (Feb. 24, 2020, No. B297510
[nonpub. opn.].)
C. The 2019-2020 Reunification Period
The July 16, 2019 status review report stated Mother was
having regular visits with Star at least twice a week for two
hours each visit, and Mother was attentive during the visits and
interacted well with Star. Mother would often play with Star at a
park, and Star was excited to see Mother. Mother also spoke to
Star daily on the phone. Visitation monitors observed that
Mother could be “‘abrasive’” and “‘a little overbearing,’” and
Mother posted severe criticism of the Department and the
juvenile court on social media, including posts that identified
social workers by their full names and included videos of other
foster children in Amy’s care. Mother tested positive for
methamphetamine on February 14, April 23, and May 1, 2019,
and she failed to test on four other occasions. Mother did not
provide proof of enrollment in any services.
On January 17, 2020 the Department reported Star was
doing well in her placement with Amy. Star was a “happy child,”
as was evident from “her constant smiling, giggling, and playful
interaction.” Mother continued to have twice weekly monitored
visits for two hours per visit. The visits were “going well,” and
“Mother interact[ed] well with Star and Star respond[ed]
positively.” Mother displayed affection and took initiative to feed
and change Star.
At a March 16, 2020 visit Mother became upset because
Star kept going to Amy, not Mother. Mother had a “‘melt down’”
in front of Star and started cursing and yelling, then used her
keys to destroy a leather couch in the visitation room. Amy
6
reported “Star became upset while witnessing her mother’s
behavior.” Mother left the visitation facility, and when staff did
not allow her to reenter, Mother waited in the parking lot for
three hours. As a result, staff had Amy and Star leave the
facility through the back door.
As a result of the COVID-19 pandemic, in March 2020
Mother started having daily virtual visits with Star. On
September 4 the social worker reported that Mother had been
recording her virtual visits with Star and posting them on her
public social media account. The videos showed Amy, her home,
and other children in the home. Amy was no longer willing to
serve as Star’s caregiver or to monitor virtual visits. Mother
continued to criticize and post threats against the Department
and social workers on social media, and it became difficult to
provide a monitor for visits.
On September 18, 2020 Star was placed with Mr. and
Mrs. C. (the caregivers). On September 23 the caregivers
reported Star was doing well and sleeping through the night.
During a virtual visit with Mother, Star attempted to show
Mother her toys, but Mother did not want to see them, and Star
became sad and put her head down. Mother became upset when
Star called the caregivers “mom” and “dad,” and she told Star not
to call them that. On September 30 the caregivers reported the
virtual visits were usually uncomfortable: Star did not look at
Mother during a recent visit, and Mother called Star a “little
brat.” Mother told Star, “‘I wish you were back at Amy’s, because
you didn’t act like this.’”
7
At the October 8, 2020 12-month status review hearing, the
juvenile court5 found Mother had not made substantial progress
with her case plan, terminated Mother’s family reunification
services, and set a selection and implementation hearing
(§ 366.26).
D. Post-reunification Period and Selection and Implementation
Hearing
The January 27, 2021 section 366.26 report6 identified the
caregivers as prospective adoptive parents and stated they were
meeting Star’s needs. They lived in a house with one adopted
daughter and room for Star, and they were eager to adopt her.
Mother continued to have virtual visits with Star because the
Department’s offices were closed due to the COVID-19 pandemic.
In addition, the caregivers and the foster agency did not want to
participate in in-person visits due to Mother’s prior violent
behavior in front of Star and continuing social media postings.
On March 15, 2021 the Department reported Star was
engaged with Mother through the majority of Mother’s twice
weekly virtual visits, but sometimes Star became distracted and
disengaged, and the caregivers would need to redirect her
attention to Mother. The caregivers later reported that “[d]uring
most calls (with help and prompting), Star will share what she
5 Judge Debra R. Archuleta presided over the 12-month
status review hearing and subsequent proceedings.
6 The selection and implementation hearing was initially set
for February 4, 2021. At the February 4 hearing, the juvenile
court granted Mother’s request to represent herself. However,
the selection and implementation hearing was continued multiple
times to December 7, 2021.
8
did during the day and what she ate. Star will also ask mom to
play songs or videos from her phone.” But “[t]here have been
times when Star does not want to participate in the visit,” and
“Star will not look at the screen or speak to her mom.”
On May 12, 2021 the Department reported Star was
speaking a great deal more and was engaged in educational play.
She was also participating in therapy. Mother continued to have
virtual visits. On May 25 the caregivers reported, “Star is very
vocal on the calls and tells her mom what she wants do, such as
reading, singing, counting, ABC’s.” However, “if Star doesn’t get
her way with mom, she shuts down and no longer wants to
participate in the visit.” The caregivers reported Star was very
“comfortable and happy” and “loving and affectionate” with them,
and she enjoyed activities such as running, riding her scooter,
singing, and dancing.
On September 20, 2021 the Department reported Star
continued to grow and thrive in the caregivers’ home, and she
enjoyed going to the park, riding a tricycle and playing outdoors.
She had begun preschool and demonstrated confidence in her
interactions with other children. In July 2021 Star resumed in-
person visits with Mother once a week, in addition to one weekly
virtual visit. The in-person visits were “going well”: Star
appeared comfortable in Mother’s presence and was “talkative
and engaged.” Mother brought toys and activities, and they
played together. Mother was attentive and interacted well with
Star. At the end of each visit, Star helped to clean up and gave
Mother a hug goodbye. Star did not demonstrate any acting-out
behaviors before or after the visits. However, on August 23
Mother again posted a video of her visit with Star on social
media. The November 30, 2021 last minute information for the
9
court stated there were no concerns about the in-person visits.
However, the Department recommended the juvenile court
terminate parental rights and select adoption as Star’s
permanent plan.7
At the December 7, 2021 selection and implementation
hearing (§ 366.26), the juvenile court admitted the Department’s
reports into evidence.8 Star’s attorney supported the
Department’s request to terminate parental rights, arguing there
was clear and convincing evidence Star was adoptable, and the
beneficial parental relationship exception did not apply. Further,
although Mother had regular visitation with Star, the evidence
did not support a finding Star’s relationship with Mother
“promotes the wellbeing of the child to such a degree as to
outweigh the wellbeing the child would gain in a permanent
home with new adoptive parents.” Star’s attorney also argued
Mother had “not been able to establish a parental role in Star’s
life.”
Mother, who was self-represented, argued she had been in
an abusive relationship with Father but had succeeded in getting
7 On October 13, 2021 Mother filed a section 388 petition
seeking Star’s return, in which she alleged she was testing
negative for drugs and attending therapy, classes, and AA
meetings. The juvenile court denied the petition on November 8,
2021. Mother did not appeal from the denial of her section 388
petition.
8 Mother objected to admission of the Department’s exhibits,
stating she had not seen the exhibit list and did not know what a
“last-minute report” was. The juvenile court provided Mother
with a copy of the exhibit list and November 30, 2021 last minute
information for the court before inviting argument.
10
him out of her life, relieving her emotional and physical pain, and
she was “ready to do whatever it takes to get Star back.” Mother
also argued that Star should be placed in the home of the
maternal grandparents instead of being adopted, although she
acknowledged she had never asked the Department to assess the
grandparents for a potential placement.
The juvenile court found Star was adoptable. When the
court asked Mother if she was asserting the “parental-bond
exception,” Mother responded, “I don’t know what that means.”
However, after further questioning, Mother acknowledged she
was “claiming that there’s a bond with” Star. The court found the
exception did not apply, explaining, “Although there’s been some
regular visitation, it’s been virtual visits for approximately twice
a week. No other family members, including the grandparents,
have ever had any visitation or interaction with Star and there’s
never been a request.” Further, “the benefit accruing to the child
from her relationship with the mother and the father is
outweighed by the physical and emotional benefit that she will
receive through the permanency and stability of adoption, and
that adoption is in the best interest of the child.” The court noted
Star was then four years old and had been removed from Mother
three years earlier. The court added that it did not appear “that
Mother stands in the role of a parent, nor does she play a
parental role to Star at this time.” Further, the court found Star
does not have “a significant emotional attachment” with Mother
and the benefit of adoption “outweighs the quality and the nature
of the relationship between Mother and minor.” Finally, the
court found “there would be detriment to the minor to be removed
from the stable placement that she has been participating in
11
since she was approximately one year old.”9 The court found no
exception applied, and it terminated Mother’s and Father’s
parental rights and designated the caregivers as Star’s
prospective adoptive parents.
Mother timely appealed.
DISCUSSION
A. The Juvenile Court Did Not Abuse Its Discretion in Finding
the Beneficial Parental Relationship Exception Did Not
Apply
1. Applicable law and standard of review
“At the section 366.26 hearing, the focus shifts away from
family reunification and toward the selection and implementation
of a permanent plan for the child.” (In re S.B. (2009) 46 Cal.4th
529, 532; accord, In re Caden C. (2021) 11 Cal.5th 614, 630
(Caden C.).) “‘Once the court determines the child is likely to be
adopted, the burden shifts to the parent to show that termination
of parental rights would be detrimental to the child under one of
the exceptions listed in section 366.26, subdivision (c)(1).’” (In re
B.D. (2021) 66 Cal.App.5th 1218, 1224-1225; accord, In re Celine
9 In assessing the beneficial parental relationship exception,
the juvenile court found Star had been “with the same family for
nearly three years, the majority of her life.” Star’s attorney later
corrected the court, clarifying that although Star had been
removed from Mother three years earlier, Star had been placed
with the current caregivers only since September 2020 (nearly
15 months). The court acknowledged the correction and
proceeded to designate the caregivers as prospective adoptive
parents.
12
R. (2003) 31 Cal.4th 45, 53 [“court must order adoption and its
necessary consequence, termination of parental rights, unless one
of the specified circumstances provides a compelling reason for
finding that termination of parental rights would be detrimental
to the child”].)
Under section 366.26, subdivision (c)(1)(B)(i), “the parent
may avoid termination of parental rights” if the parent
establishes by a preponderance of the evidence “that the parent
has regularly visited with the child, that the child would benefit
from continuing the relationship, and that terminating the
relationship would be detrimental to the child. [Citations.] The
language of this exception, along with its history and place in the
larger dependency scheme, show that the exception applies in
situations where a child cannot be in a parent’s custody but
where severing the child’s relationship with the parent, even
when balanced against the benefits of a new adoptive home,
would be harmful for the child.” (Caden C., supra, 11 Cal.5th at
pp. 629-630; accord, In re B.D., supra, 66 Cal.App.5th at p. 1225.)
A parent has regular visitation and contact when the
parent “‘visit[s] consistently,’ taking into account ‘the extent
permitted by court orders.’” (Caden C., supra, 11 Cal.5th at
p. 632; accord, In re I.R. (2014) 226 Cal.App.4th 201, 212.)
Whether “‘the child would benefit from continuing the
relationship’” with his or her parent is shaped by factors “such as
‘[t]he age of the child, the portion of the child’s life spent in the
parent’s custody, the “positive” or “negative” effect of interaction
between parent and child, and the child’s particular needs.’”
(Caden C., at p. 632; accord, In re Katherine J. (2022)
75 Cal.App.5th 303, 317.) “‘If severing the natural parent/child
relationship would deprive the child of a substantial, positive
13
emotional attachment such that,’ even considering the benefits of
a new adoptive home, termination would ‘harm[]’ the child, the
court should not terminate parental rights.” (Caden C., at p. 633;
In re Katherine J., at p. 317.) “While application of the beneficial
parental relationship exception rests on a variety of factual
determinations properly reviewed for substantial evidence, the
ultimate decision that termination would be harmful is subject to
review for abuse of discretion.” (Caden C., at p. 630; accord, In re
B.D., supra, 66 Cal.App.5th at p. 1225.)
2. The juvenile court did not abuse its discretion
Mother contends the juvenile court erred in terminating
her parental rights over Star because the court did not properly
follow the analysis of Caden C., supra, 11 Cal.5th at page 629 in
finding the beneficial parental relationship exception did not
apply, and substantial evidence supported application of the
exception. Although we agree the court made come findings that
were irrelevant or inappropriate under the Caden C. analysis, the
court considered the proper factors in terminating parental
rights.10
10 We reject the Department’s contention we should not
consider the beneficial parental relationship exception because
Mother did not invoke the exception or present evidence in
support of her position at the selection and implementation
hearing. The juvenile court expressly found Mother was invoking
the exception despite her unfamiliarity with the proper
terminology, and the court addressed the evidence for the
exception “based on the documents that the court has before it
and the review of the entire file . . . .”
14
As to the first step of the Caden C. analysis, the juvenile
court made an equivocal determination, finding “there’s been
some regular visitation,” but the visits were principally virtual,
and other maternal family members were not included in the
visits. We agree with Mother the evidence demonstrates regular
visitation, and the Department does not argue otherwise on
appeal. Without exception, the Department reports show Mother
consistently visited Star to the full extent authorized by the
court’s orders, and she often pressed for greater visitation.
(Caden C., supra, 11 Cal.5th at p. 632; cf. In re I.R., supra,
226 Cal.App.4th at p. 212 [visitation not regular where “there
were significant lapses” in the mother’s visitation]; In re
C.F. (2011) 193 Cal.App.4th 549, 554 [visitation not regular
where “overall [the mother’s] visitation was sporadic”].) In
addition, whether visits occurred with extended family members
is not relevant to whether Mother had regular visitation.
With respect to the second step, the juvenile court found
there was not “a significant emotional attachment” between Star
and Mother. Mother contends the court erred in basing this
conclusion on its improper findings that Mother did not “stand[]
in the role of a parent, nor does she play a parental role to Star at
this time.” Although the Supreme Court in Caden C. did not bar
juvenile courts from considering a parent’s “parental role,” a
court’s proper focus is on whether the child would benefit from
continuing the child’s relationship with the parent as a result of
having a substantial positive emotional attachment to the parent.
(Caden C., supra, 11 Cal.5th at pp. 632, 636; see In re D.M. (2021)
71 Cal.App.5th 261, 270 [juvenile court abused its discretion in
“focusing on whether father occupied a ‘parental role’ in the
children’s lives, equating that role with attendance at medical
15
appointments, and understanding their medical needs,” instead
of determining whether there was a substantial, positive
emotional attachment]; In re J.D. (2021) 70 Cal.App.5th 833, 865
[reversing termination of parental rights because it was unclear
“whether the juvenile court’s determination that mother did not
occupy a ‘parental’ role encompassed factors that Caden C. deems
irrelevant”].)
Here, although the juvenile court did not explain what it
meant by Mother not occupying a “parental role,” the court did
not discuss specific improper factors, such as Mother’s unresolved
case issues, her social media behavior, or her failure to have a
role in Star’s life other than during visits. Moreover, any error in
considering whether Mother occupied a parental role was
harmless because Mother failed to establish by a preponderance
of the evidence Star had a substantial, positive emotional
attachment with her. (See In re Jesusa V. (2004) 32 Cal.4th 588,
624 [harmless error standard applies in dependency cases]; In re
Malick T. (2022) 73 Cal.App.5th 1109, 1128 [same].) Star was
only one year old when she was detained from Mother, and Star
spent three-quarters of her life outside of Mother’s custody.
Although interaction between Star and Mother was generally
very positive during the first year of Star’s placement with Amy,
during which Mother was having in-person visits and frequent
telephone calls with Star, Star’s bond with Mother frayed over
time. In March 2020 Mother had a “‘melt down’” in front of Star,
cursing and damaging furniture, which upset Star and caused
Star and Amy to leave the visit through a rear entrance to avoid
Mother.
After Star was placed with the caregivers in September
2020, virtual visits were generally uncomfortable, and during one
16
visit Star became sad and withdrawn because Mother did not
want to see her toys. And Mother became mad when Star
referred to the caregivers as “mom” and “dad.” During another
visit, Mother called Star a “little brat.” Throughout late 2020 and
into mid-2021, Star was sometimes distracted and disengaged
from Mother during their virtual visits, requiring the caregivers
to redirect Star’s attention to Mother. Star occasionally shared
with Mother what she did during the day or asked Mother to play
songs or videos, but the caregivers described other times when
Star would not talk to Mother, or if Mother did not allow Star to
do what she wanted, Star would not participate in the visit.
It is true the quality of Mother’s visits improved with the
resumption of in-person visits in late 2021. Star did not act out,
she was generally “talkative and engaged” during visits, and at
the end of visits Star would help clean up, then hug Mother
goodbye. Thus, at the time of the selection and implementation
hearing, Star demonstrated some positive connection with
Mother. However, nothing in the record shows Star had a
“substantial, positive emotional attachment” as a result of which
she would benefit from continuing the relationship, for example,
Star being sad when the visits ended or expressing any desire to
see Mother again. (See Caden C., supra, 11 Cal.5th at p. 632
[“courts often consider how children feel about, interact with, look
to, or talk about their parents”].)
Even if Star’s emotional attachment with Mother was
sufficient at the second step, the juvenile court did not abuse its
discretion in finding Mother did not meet her burden as to the
third step of the Caden C. analysis. Mother is correct the
juvenile court improperly framed the relevant inquiry, finding it
would be detrimental to remove Star from her stable placement
17
with the caregivers, and the benefit of adoption “outweighs the
quality and the nature of the relationship between Mother and
[Star].” As discussed, as part of the third step, a court should
look at the impact of severing the child’s relationship with the
parent (not the caregivers), then balance that detriment with the
benefits of a new adoptive home. (Caden C., supra, 11 Cal.5th at
p. 634.) Notwithstanding the court’s inversion of the standard,
however, the court did not abuse its discretion in finding the
benefit and security provided by Star’s placement with the
caregivers as the prospective adoptive parents outweighed any
harm that would be caused by the loss of her relationship with
Mother. Star lived in foster care since she was a baby. She had
been living with her caregivers for nearly 15 months at the time
of selection and implementation hearing, during which time Star
had begun preschool, was developing language skills, and
established new interests and activities. Star was “comfortable
and happy,” and the caregivers were meeting her needs.
Although Star had a positive relationship with Mother, as
discussed, she did not have a significant emotional attachment
with Mother. On this record, there is no showing of “‘exceptional
circumstances [citation], to choose an option other than the norm,
which remains adoption.’” (Caden C., at p. 631.)
B. The Juvenile Court and the Department Failed To Comply
with ICWA and Related California Law
1. The ICWA inquiry and findings
On November 29 and 30, 2018 the social worker asked
Mother and Father, respectively, about Star’s Indian ancestry,
18
and both parents denied any known Indian ancestry.11 At the
December 27, 2018 detention hearing, Mother completed a
parental notification of Indian status form (ICWA-020), in which
she indicated she had no known Indian ancestry. Mother also
completed a parentage questionnaire identifying Father as Star’s
father, and Father was also listed on Star’s birth certificate. On
a relative information sheet, Mother identified the maternal
grandmother and maternal step-grandfather, as well as a
maternal aunt. Although the Department could not locate Father
after the initial interview, Mother apparently had information
about paternal grandmother because she told the social worker
paternal grandmother operated a cannabis dispensary. The
Department did not inquire of any maternal or paternal relatives
as to Star’s possible Indian ancestry.
At the December 27, 2018 detention hearing, the juvenile
court12 noted Mother indicated on her parental notification form
that she had no Indian ancestry, and the court did not “have any
reason today to believe that [ICWA] actually applies.” The court
also found Father was Star’s presumed father. Maternal
grandmother and maternal aunt were present at the hearing, but
the court did not inquire of them as to Star’s possible Indian
ancestry.
At the 12-month status review hearing on October 8, 2020,
the juvenile court stated it had previously made ICWA findings
11 The Department reported Father signed a questionnaire
indicating he had no known Indian ancestry, but there is no
questionnaire in the record. Father also told the social worker he
“[doesn’t] really talk to” his family.
12 Juvenile Court Referee Robin R. Kessler.
19
and the proceeding “was not a case governed” by ICWA. The
court did not make findings as to ICWA at any subsequent
hearing.
2. ICWA inquiry and notice requirements
ICWA provides as to dependency proceedings, “[W]here the
court knows or has reason to know that an Indian child is
involved, the party seeking . . . termination of parental rights
to . . . an Indian child shall notify the parent or Indian custodian
and the Indian child’s tribe, by registered mail with return
receipt requested, of the pending proceedings and of their right of
intervention.” (25 U.S.C. § 1912(a); see In re Isaiah W. (2016)
1 Cal.5th 1, 5; In re Antonio R. (2022) 76 Cal.App.5th 421, 428
(Antonio R.); In re T.G. (2020) 58 Cal.App.5th 275, 288.)
California law also requires notice to the Indian tribe and the
parent, legal guardian, or Indian custodian if the court or the
Department “knows or has reason to know” the proceeding
concerns an Indian child. (§ 224.3, subd. (a); see Antonio R., at
p. 429; In re T.G., at p. 288; Cal. Rules of Court, rule 5.481(c)(1)
[notice is required “[i]f it is known or there is reason to know an
Indian child is involved in a proceeding listed in rule 5.480,”
which includes dependency cases filed under section 300].) The
notice requirement is at the heart of ICWA because it “enables a
tribe to determine whether the child is an Indian child and, if so,
whether to intervene in or exercise jurisdiction over the
proceeding.” (In re Isaiah W., at p. 5; accord, Antonio R., at
p. 428; In re T.G., at p. 288; see 25 U.S.C. § 1912(a); Welf. & Inst.
Code, § 224.3, subd. (d).)
The juvenile court and the Department “have an
affirmative and continuing duty to inquire whether a child for
20
whom a petition under Section 300 . . . may be or has been filed,
is or may be an Indian child.” (§ 224.2, subd. (a); see In re Isaiah
W., supra, 1 Cal.5th at p. 9; In re H.V. (2022) 75 Cal.App.5th 433,
437.) “The duty to inquire begins with initial contact (§ 224.2,
subd. (a)) and obligates the juvenile court and child protective
agencies to ask all relevant involved individuals whether the
child may be an Indian child. (§ 224.2, subds. (a)-(c)).” (In re
T.G., supra, 58 Cal.App.5th at p. 290; accord, In re J.C. (2022)
77 Cal.App.5th 70, 77; In re H.V., supra, 75 Cal.App.5th at
p. 437.) Section 224.2, subdivision (b), imposes on the
Department a duty to inquire whether a child in the
Department’s temporary custody is an Indian child, which
“[i]nquiry includes, but is not limited to, asking the child,
parents, legal guardian, Indian custodian, extended family
members, others who have an interest in the child, and the party
reporting child abuse or neglect, whether the child is, or may be,
an Indian child . . . .”13 (See Cal. Rules of Court, rule 5.481(a)(1)
[the Department “must ask . . . extended family members . . .
whether the child is or may be an Indian child”]; In re D.F. (2020)
55 Cal.App.5th 558, 566; In re Y.W. (2021) 70 Cal.App.5th 542,
551-552.) “The duty to develop information concerning whether a
13 “State law also expressly requires the juvenile court to ask
participants who appear before the court about the child’s
potential Indian status. (§ 224.2, subd. (c).)” (In re Benjamin M.
(2021) 70 Cal.App.5th 735, 742; accord, In re Josiah T. (2021)
71 Cal.App.5th 388, 402.) Similarly, under federal regulations,
“[s]tate courts must ask each participant in an . . . involuntary
child-custody proceeding whether the participant knows or has
reason to know that the child is an Indian child.” (25 C.F.R.
§ 23.107(a) (2022).)
21
child is an Indian child rests with the court and the Department,
not the parents or members of the parents’ families.” (Antonio R.,
supra, 76 Cal.App.5th at p. 430; see In re K.R. (2018)
20 Cal.App.5th 701, 706 [“The court and the agency must act
upon information received from any source, not just the parent
[citations], and the parent’s failure to object in the juvenile court
to deficiencies in the investigation or noticing does not preclude
the parent from raising the issue for the first time on
appeal . . . .”].)
As we have repeatedly held, “[w]here the Department fails
to discharge its initial duty of inquiry under ICWA and related
California law, and the juvenile court finds ICWA does not apply
notwithstanding the lack of an adequate inquiry, the error is in
most circumstances . . . prejudicial and reversible.” (Antonio R.,
supra, 76 Cal.App.5th at p. 435; accord, In re J.C., supra,
77 Cal.App.5th at pp. 80-81; see In re E.V. (2022) 80 Cal.App.5th
691, 698 [“[W]e reject county counsel’s argument Father must
show prejudice from the lack of initial inquiry. Father’s failure to
make affirmative representation about possible Indian heritage
does not render the error harmless.”]; In re Y.W., supra,
70 Cal.App.5th at p. 556 [“A parent . . . does not need to assert he
or she has Indian ancestry to show a child protective agency’s
failure to make an appropriate inquiry under ICWA and related
law is prejudicial.”]; but see In re Dezi C. (2022) 79 Cal.App.5th
769, 779, review granted Sept. 21, 2022, S275578 [“[A]n agency’s
failure to conduct a proper initial inquiry into a dependent child’s
American Indian heritage is harmless unless the record contains
information suggesting a reason to believe that the child may be
an ‘Indian child’ within the meaning of ICWA, such that the
22
absence of further inquiry was prejudicial to the juvenile
court’s ICWA finding.”].)
3. The juvenile court failed to ensure the Department
satisfied its duty of inquiry
Mother contends the Department and juvenile court failed
to comply with their affirmative and continuing duty to inquire
whether Star is an Indian child, and accordingly the court erred
when it found ICWA did not apply based solely on the parental
notification of Indian status form filed by Mother and Father’s
statement he had no known Indian ancestry. The Department
concedes there is no evidence a social worker ever asked known
extended family members whether Star had Indian ancestry and
“submits this ICWA-related initial inquiry issue to this Court,”
observing that in past cases this court has held that failure to
fulfill initial inquiry duties “constitutes prejudicial error in most
circumstances.”
The Department failed to satisfy its initial duty of inquiry
under section 224.2, subdivision (b). Notwithstanding Mother’s
and Father’s denial of known Indian ancestry, section 224.2,
subdivision (b), obligated the Department to inquire of the
extended family members as to Star’s possible Indian ancestry.
(Antonio R., supra, 76 Cal.App.5th at p. 431 [“By requiring the
Department to inquire of a child’s extended family members as to
the child’s possible Indian ancestry, the Legislature determined
that inquiry of the parents alone is not sufficient.”]; In re Y.W.,
supra, 70 Cal.App.5th at p. 556 [“the point of the statutory
requirement that the social worker ask all relevant individuals
whether a child is or may be an Indian child” is “to obtain
information the parent may not have”].) It is undisputed the
23
Department did not make an inquiry of any extended family
members, even though the maternal grandmother and maternal
aunt were known to the Department and present at the detention
hearing, and Mother appears to have had information concerning
paternal grandmother.14
The juvenile court also erred in finding ICWA did not apply
to the proceeding despite the Department’s failure to satisfy its
duty of inquiry under section 224.2, subdivision (b). (See In re
J.C., supra, 77 Cal.App.5th at p. 74 [“the court’s finding ICWA
did not apply” was not supported by substantial evidence where
the court “failed to ensure the Department fulfilled its duty of
inquiry under section 224.2, subdivision (b)”]; Antonio R., supra,
76 Cal.App.5th at p. 432 [court’s finding ICWA did not apply was
erroneous where Department failed to inquire of child’s extended
family members about possible Indian ancestry, and court failed
to ensure Department satisfy its duty of initial inquiry].)
Although the court instructed the Department “to continue to
investigate,” the court determined ICWA did not apply based only
on the parents’ initial statements, and there is no evidence the
Department or the court ever revisited the issue.
14 Although the Department filed multiple declarations of due
diligence showing it was unable to locate Father, it does not
follow that the paternal relatives were not readily available to
the Department. The declarations show the Department had
Father’s full name, date of birth, social security number,
associated telephone numbers, and several previous addresses,
which may well have included his parents’ contact information.
On remand, the Department must diligently attempt to identify
the paternal grandparents and other paternal relatives.
24
Moreover, the error in failing to inquire of readily
ascertainable extended family members is prejudicial. As we
explained in Antonio R., supra, 76 Cal.App.5th at page 435, “[I]n
determining whether the failure to make an adequate initial
inquiry is prejudicial, we ask whether the information in the
hands of the extended family members is likely to be meaningful
in determining whether the child is an Indian child, not whether
the information is likely to show the child is in fact an Indian
child. In most circumstances, the information in the possession
of extended relatives is likely to be meaningful in determining
whether the child is an Indian child—regardless of whether the
information ultimately shows the child is or is not an Indian
child.” Because Star’s grandparents and other extended relatives
may possess information relevant to her Indian ancestry not
known by the parents, the failure of the court and Department to
inquire of the family members was prejudicial.
DISPOSITION
The order terminating Mother’s parental rights as to Star
is conditionally affirmed. We remand to the juvenile court for the
Department and the court to comply with the inquiry and notice
provisions of ICWA and related California law, including inquiry
of the maternal grandmother, the maternal aunt, the paternal
grandmother, and any other reasonably ascertainable extended
family members, and to follow up on any information the
Department may obtain about Star’s possible Indian ancestry. If
the court finds Star is an Indian child, it shall conduct a new
section 366.26 hearing, as well as all further proceedings, in
25
compliance with ICWA and related California law. If not, the
court’s original section 366.26 order will remain in effect.
FEUER, J.
We concur:
PERLUSS, P. J.
SEGAL, J.
26 | 01-04-2023 | 11-15-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489135/ | *21ORDER ON MOTION TO STRIKE COUNTS I AND III OF COMPLAINT TO FORECLOSE MECHANIC’S LIEN AND FOR BREACH OF CONTRACT WITH PREJUDICE
ALEXANDER L. PASKAY, Chief Judge.
THIS IS an adversary proceeding and the Motion under consideration is a Motion to Strike Count I and III of the Complaint. The Complaint, filed by W. Allen Young & Associates, Inc. (Plaintiff), in Count I seeks to foreclose a mechanics lien on the property of the Defendant, Emmer Development Corp., pursuant to the mechanics lien law of this state. Fla.Stat. 713 et seq.
Count III set forth a claim in which the Plaintiff seeks to impose an equitable lien on the property of the Defendant. The Defendant attacks both the mechanics lien claim and the claim for an equitable lien on two grounds.
First, the Defendant urges that the relationship of the parties is controlled by a written contract and their respective rights are based on four written contracts, each of which contain a covenant in which the Plaintiff expressly waived any claim for mechanics lien or any other claim against the properties of the Defendant. In addition, the Defendant attacks the claim for a mechanics lien on the ground that the Defendant failed to institute an action in a Court of competent jurisdiction to enforce its mechanics lien claim within 60 days as required by Fla.Stat. 713.22(2) when the lien claim is contested and therefore upon expiration of the 60 days the lien became automatically extinguished. In response, the Plaintiff urges that by virtue of § 541 of the Bankruptcy Code, on the date the Plaintiff filed its petition for relief in this Court, it had an inchoate lien right; that the Defendant, by filing a notice of contest of lien without leave of Court violated the automatic stay imposed by § 362(a) and therefore, the notice of contest was a legal nullity; consequently, the time to file suit to impose the mechanics lien was not shortened and since the suit was filed within one year, the lien is still an enforceable valid lien. The Plaintiff also intimated, although not articulated very well, that the Bankruptcy Code expressly extends for two years, all statutory limitations which under the applicable law has not expired on the date of filing the petition and the trustee is granted two additional years to institute action after the order for relief.
The mechanics lien statute, Fla.Stat. 713 is a creation of the legislature of this state that did not exist in the common law. The legislature in enacting this remedial legislation designed it to benefit material-men and laborers who contribute to the improvement of land. The statute places certain conditions on the enforcement of a lien right. One of these conditions is set forth in Fla.Stat. § 713.22 which provides in sub-clause (2) that the lien of any lienor upon whom a notice of contest is served must institute a suit to enforce the lien within 60 days after service of such notice and if he fails to do so the lien is extinguished automatically (emphasis supplied). In construing this section, the 4th District Court of Appeals in the case of Regal Woods Products, Inc. v. First Wisconsin National Bank of Milwaukee, 347 So.2d 643 (Fla. 4th DCA 1977) stated that this condition is not an ordinary statute of limitations, merely effecting the remedy, but is part of the cause of action itself and if no action is brought within the time provided, i. e. 60 days from the date of the notice of contest, the cause of action itself becomes extinguished and gone forever. The contention of the Plaintiff that the notice of contest was a nullity thus the time to file suit was not shortened therefore does not bear close analysis. Filing a notice of contest of lien, a right created by the very statute which the Plaintiff seeks to enforce was not an act prohibited by any provisions of the automatic stay imposed by § 362.
Even assuming, but not admitting, that the filing of a notice of contest was possibly an act designed to obtain possession of property of the estate, property being inchoate lien right a proposition hardly supportable, it is evident that the Defendant by serving its notice of contest did nothing more than cause the time to file a suit on *22the lien shortened as it has the right to do under the statute and did nothing which was designed or did in fact take away anything from the Plaintiff or did nothing which resulted in a loss of any property of the Plaintiff. This being the case there is no question that the Plaintiff, by failing to institute an action to enforce its lien claim lost its lien right and for this reason its claim set forth in Count I cannot stand and said count does not state a claim for which relief can be granted.
This leaves for consideration the second prong of the Defendant’s attack on the lien claims set forth in Count I and Count III of the complaint. The attack is based on ¶ 8 of these contracts, which paragraph provides for a waiver of any claim, mechanics lien or otherwise, against the property of the Defendant. This attack is without merit because a waiver is merely an affirmative defense, FRCP 8(c), and if the complaint is otherwise legally sufficient to state a claim the Motion to Dismiss cannot be granted. A waiver is not an absolute defense and the Plaintiff should be permitted to establish, for instance, that the waiver was not supported by consideration or that it was obtained through overreaching or fraud.
In accordance with the foregoing, it is
ORDERED, ADJUDGED AND DECREED that the Motion to Strike Count I of the complaint be, and the same hereby is, granted and Count I of the complaint be, and the same hereby is, dismissed. It is further
ORDERED, ADJUDGED AND DECREED that the Motion to Strike Count III of the complaint be, and the same hereby is, denied and the Defendant shall have 15 days from the date of the entry of this order to file its answer to said count. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489136/ | MEMORANDUM AND ORDER
ROBERT B. MORTON, Bankruptcy Judge.
STATEMENT OF THE CASE
Defendant/debtors’ Chapter 13 plan recognizes a mortgage debt to plaintiff on their homestead, asserts an arrearage of $400 and proposes payment thereof at the rate of $40 per month, along with resumption of regular contract installments outside the plan. Plaintiff, Mid American Credit Union (Mid American), contending the full balance is due because of a prepetition acceleration, objected to confirmation. The plan was confirmed upon the condition that Mid American’s position would be preserved for judicial determination through the filing of the instant complaint for relief from the automatic stay. Such relief is requested in the alternative: (i) continuance of Mid American’s state court foreclosure action pending at the time this Chapter 13 case was commenced; or, (ii) removal of that state court foreclosure action to this court. Defendants assert their legal entitlement under 11 U.S.C. § 1322(b)(5) to cure the default in the manner proposed.
MEMORANDUM
The material facts necessary for determination of the issues joined are not in dispute and may be stated in summary:
Debtors’ homestead is subject to first mortgage lien to American Savings Association of Kansas upon which a balance of $28,747.03 was owing as of February 12, 1981.1 The amended plan provides that an arrearage of $620 be satisfied outside the plan at $62 per month.
The unpaid balance on Mid American’s second mortgage lien is $10,319.89, evidenced by a promissory note dated June 29, 1979, calling for $200 monthly installments.2 The note further provides that upon default of a payment the payee is entitled to declare the entire obligation immediately due and proceed with foreclosure of the mortgage lien. Such an installment default did occur which was followed by Mid American’s January 22, 1981 exercise of those acceleration rights. A state court foreclosure action was initiated, however the instant case with its concomitant automatic stay was filed before any judgment in the state court action.3 The then installment arrearage is stated by Mid American to have been $590.60.4 In their plan debtors designate the amount as $400.5 Satisfaction of the debt by installments provided in the note would not occur until after expiration of the plan payout period.
A third mortgage to Fourth National Bank and Trust Company is outstanding on debtors’ residence in the amount of $5,084.84 as of February 23, 1981.6 The amended plan provides that an arrearage *24of $776 be paid outside the plan at the rate of $78 per month.
Mid American values the property at $68,000 7 which is in excess of the aggregate of all outstanding mortgage indebtedness.
Section 1322(b)(2) precludes a plan modification of secured creditors’ rights in a debtor’s principal residence. 11 U.S.C. § 1322(b)(2). However section 1322(b)(5) provides that notwithstanding clause (b)(2) a Chapter 13 plan may “provide for the curing of any default within a reasonable time and maintenance of payments while the case is pending on any unsecured claim or secured claim on which the last payment is due after the date on which the final payment under the plan is due”. 11 U.S.C. § 1322(b)(5).
The interrelationship between the two clauses is indicated by the legislative history:
Section 1322(b)(2) of the House amendment represents a compromise agreement between similar provisions in the House bill and Senate amendment. Under the House amendment, the plan may modify the rights of holders of secured claims other than a claim secured by a security interest in real property that is the debt- or’s principal residence. It is intended that a claim secured by the debtor’s principal residence may be treated ... under Section 1322(b)(5) of the House Amendment.
124 Cong.Rec. H 11,106 (1978); 124 Cong. Rec. S 17, 423 (1978)
The more precise question here is whether a prepetition acceleration merges the ar-rearage into an immediately payable total debt thus precluding an isolation of the default for “curing” under section 1322(b) (5).. Colliers indicates the negative:
“[Section 1322(b)(5)] permits the debtor to take advantage of a contract repayment period which is longer than the Chapter 13 extension period, which may not exceed five years under any circumstances. The debtor may maintain the contract payments during the course of the plan, without acceleration by virtue of any prepetition default, by proposing to cure the default within a reasonable time.”
5 Collier on Bankruptcy, Section 1322.-01(E) (15th ed. 1980) (emphasis added).
Many courts have treated state law as decisive on the effect of acceleration in determining whether there is a default curable under section 1322(b)(5). E. g., Matter of La Paglia, 8 B.R. 937 (Bkrtcy., E.D.N.Y. Feb. 11, 1981); United Companies Financial Corporation v. Brantley, 6 B.R. 179, 6 BCD 932 (Bkrtcy., N.D. [18] Fla.1980); In re Robertson, 4 B.R. 213 (Bkrtcy., D.Colo.1980).
Mid American convincingly argues that in Kansas an acceleration clause may be invoked with binding effect. See, e. g., First National Bank v. Peck, 8 Kan. 660 (1871); Muzzy v. Knight, 8 Kan. 456 (1871); Farmers and Merchants Bank v. Copple, 190 Kan. 170, 373 P.2d 219 (1962).
Nonetheless, a consideration of the Code provisions and the legislative history in the context of the overriding rehabilitative purpose of Chapter 13 have lead to some carefully considered decisions approving reinstatement of the original mortgage installments coupled with a plan provision for curing prepetition defaults within a reasonable time.
In re Taddeo, 9 B.R. 299, 7 BCD 422 (Bkrtcy., E.D.N.Y.1981) is illustrative of the latter view. In that case, as here, there was a prepetition acceleration and commencement of state court foreclosure. There, as here, the Chapter 13 filing intervened before foreclosure judgment was entered. The Taddeo court held the debtors entitled to propose a plan to cure the pre-acceleration defaults and a reinstatement of the original payment schedule. This court adopts that conclusion in the instant adversary proceeding but refrains from concurrence in those parts of the Taddeo opinion indicating the same result would obtain if the state court foreclosure had proceeded to judgment.
*25It is accordingly determined that debtors be granted leave until August 31, 1981 within which to specify, by plan modifica-. tion, the exact amount of the aggregate installment default and a proposal to cure that default within a reasonable time through payments under the plan. If such post-confirmation amendment is not timely filed, or if so filed but determined inadequate by the court, the automatic stay is vacated to the extent necessary for Mid American to prosecute its state court foreclosure to conclusion; otherwise, the stay shall remain in effect.
IT IS SO ORDERED.
. Mid American’s Brief-Statement of facts which is unchallenged by debtors.
. Exh. A to the complaint. Kansas Federal Credit Union is the named payee. Mid American is the successor.
.Note 1, supra.
. Mid American Claim 13.
. Debtors’ plan, par. 2b.
. Footnote 1, supra.
. Mid American Claim 13. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489137/ | ORDER
RUSSELL H. HIPPE, Jr., Bankruptcy Judge.
This matter is before the court on an application by the trustee to impose sanctions on the defendant and its attorney, Harlan Dodson, III, for failure to comply with rules providing for pre-trial discovery and for failure to comply with orders entered by this court relative thereto. The failure of this attorney to comply with rules and orders is a recurring problem. In a prior proceeding this court found it necessary to fine him for failure to comply with an order. In a recent opinion Judge Paul E. Jennings of this court noted his “blatantly apparent” lack of diligence and “carelessness in reference to time.” Reliance Insurance Co. v. Martindale, BK NO. 77-30527 (M.D.Tenn., November 7, 1980). In affirming the bankruptcy court’s determination not to permit this attorney to withdraw an answer to a request for admissions, the district judge noted his “cavalier” conduct. In re Martindale, No. 80-3749 (M.D.Tenn., August 27, 1981). At the first available opportunity in each case this attorney invariably advises the court that the case is the most complicated procedurally that he *53has ever seen. He is always correct. The case is complicated procedurally because he is in it.
The debtor in this case had been involved for a number of years in the pipeline construction business. In this adversary proceeding the trustee seeks to recover what he alleges is the balance due for certain pipeline construction work which the debtor performed for the defendant pursuant to one or more contracts. Apparently these projects had been substantially completed at the time that the debtor ceased doing business. In a letter to the trustee the defendant’s attorney advised him that his client had paid to subcontractors and mate-rialmen the sum of $262,039.65, the bulk of which was derived from retainage which it was holding pursuant to one or more of the contracts. The trustee was furnished with a list of the payees and the amount paid to each. According to this letter the defendant estimated that it had disbursed to these subcontractors and materialmen some $30,-000 more than it had retained under the contracts. This figure was not substantiated in any way.
This case was originally set to be tried on September 25, 1980. On July 23, 1980, the defendant’s attorney filed a motion to continue stating that at least five days would be required for the trial. The court reacted to this motion by rescheduling the trial for three days commencing on January 14, 1981.
On the day prior to the rescheduled trial date, the trustee filed a motion for continuance indicating that he had discussed the matter with the defendant’s attorney and thought that with additional time many factual issues could be stipulated and thus reduce the length of time necessary for trial. The court responded to this motion by rescheduling the trial for April 8, 1981.
Apparently being unable to reach an agreement with the defendant’s attorney relative to the stipulation, on January 29, 1981, the trustee served on that attorney requests for admissions of facts attempting to elicit from the defendant for use at trial the information which had previously been furnished by the defendant’s attorney. A response was filed denying the admissions. On March 2, 1981, the trustee served on the attorney for the defendant a set of interrogatories by which he also attempted to elicit information.
On the day of the rescheduled trial, the trustee and the attorney for the defendant advised the court that additional time was required to complete discovery. Interrogatories had been served on the trustee and he had not fully answered, partially due to the fact that he did not have personal knowledge of much of the information requested. The court thereupon entered an order dated April 9, 1981, directing that each of the parties answer the respective interrogatories within thirty days. The attorney for the defendant assured the court at this hearing that his client would have no difficulty in providing meaningful answers to the interrogatories within the thirty-day time frame. The trial was again continued to July 14, 1981.
The trustee filed his answers on May 8, 1981. On May 21, 1981, the attorney for the defendant filed a motion for extension of time to “respond” to the interrogatories in which he stated “that answers will be substantially complete by June 1,1981.” It is unclear to the court what was meant by “substantially complete.” The court notes that incomplete answers are treated as a failure to answer under the Rule 37(a)(3) of the Federal Rules of Civil Procedure.
The trustee responded to this further delay by filing a motion requesting that the answers be striken and the requests for admissions of facts be admitted. The court set that motion for hearing on June 23, 1981. On the day prior to this hearing the defendant’s attorney filed a one-page document which purported to be answers to the interrogatories. Taking issue with the use of the word “retainage” in the first interrogatory, he answered for his client to the effect that there was no “retainage.” Having answered that question in this manner, he answered all other interrogatories as being “not applicable.” This document was filed more than a month after the deadline *54set by the court’s April 9,1981, order which this attorney had stated would be complied with fully without difficulty within the thirty-day time frame. At no time had this attorney indicated that there was a problem with the use of the word “retainage” which would warrant him withholding further responses to the interrogatories. That term had originally been used by him in his letter to the trustee.
At the hearing on June 23, 1981, the attorney for the defendant assured the court that he would make all necessary information available to the trustee prior to the trial and that it should continue as scheduled on July 14, 1981. The court had no confidence in this representation by this attorney and indicated to the trustee that he should resubmit interrogatories utilizing some term other than “retainage.” The court took under advisement the appropriate sanctions to be imposed upon the defendant and/or its attorney who readily acknowledged his obligation to reimburse the trustee for legal expenses incurred as a result of the late filing of what he deemed to be answers to the first set of interrogatories. The trial was again continued, this time to September 11, 1981.
On August 4,1981, subsequent to the due date of answers to the second set of interrogatories, the attorney for the defendant filed a motion for an extension of time to answer citing “difficulties in compiling the necessary information.” Answers were filed on August 10, 1981. The only information reflected in those answers which woiild appear to involve the compilation of any data is the list of payments made to third parties which list tracks verbatim the list included in the request for admissions filed by the trustee in January 1981 which list the trustee had previously obtained from this attorney. These answers are vague and evasive.
In desperation the trustee requested a conference complaining of the vagueness of the defendant’s answers to the second set of interrogatories. The trustee also moved for another continuation of the trial in order for him to complete discovery. At the conference the defendant’s attorney made certain representations to the court as to the position of his client in this matter which generally were unintelligible. It appeared to the court that he finally acknowledged that if the debtor had fully performed under the contracts at issue it would be entitled to the $262,039.65 less a sum which he now estimated to be as high as $50,000. He offered nothing to substantiate the later figure.
It has been necessary for the court again to continue the trial.
The foregoing course of conduct on the part of this attorney once again evidences his disregard for procedure and lack of respect for the judicial process. It appears that he is compelled in each case to see how far he can push opposing counsel and the court in delaying matters.
This court is as exasperated with this attorney as other courts are. Obviously sanctions must be imposed. They are provided by Rule 37(b) of the Federal Rules of Civil Procedure. It would appear to the court that, if this matter is ever to be resolved, as an initial step the trustee’s request for admissions should be granted. In addition, the defendant and/or its attorney should reimburse the trustee for the totally unnecessary time which he has had to devote to obtaining discovery in this matter to date. Based upon the affidavit which the trustee has filed indicating the time which he had devoted to dealing with the defendant’s delays and the additional time which the court is aware was logged subsequent to the final date set out in the affidavit, the court is of the opinion that the trustee should recover attorneys’ fees from the defendant’s attorney in the amount of $750.
The court is satisfied that as long as Harlan Dodson, III, composes the answers the trustee will be unable to obtain meaningful factual information from the defendant through interrogatories. The only way that the trustee can obtain the information to which he is entitled is through the depositions of the defendant’s personnel. It should not be necessary, however, for the estate to bear the expense of these deposi*55tions since the necessity for taking same has been caused by the defendant’s attorney. Accordingly the defendant should furnish the trustee within fifteen days of the date of this order with a list identifying all persons with significant information concerning this matter and the nature of that information. Thereafter, upon twenty-days’ written notice from the trustee the defendant shall make such persons available to the trustee at such location as he shall specify. The defendant shall pay all expenses incurred in connection with the taking of these depositions including the travel expenses of the persons to be deposed and the trustee and the costs of having the testimony transcribed and reimbursement to the trustee of a reasonable fee for his services as attorney for the estate.
It is SO ORDERED. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489138/ | MEMORANDUM OPINION
ALEXANDER L. PASKAY, Chief Judge.
THIS IS a business reorganization case commenced by the petition for order for relief filed by Friends of Rusu, Inc. (the Debtor) filed on July 6, 1981 under Chapter 11 of the Bankruptcy Code. The particular matter under consideration is a complaint filed by Ellis Bank & Trust Co. (Ellis) who seeks a modification of the automatic stay imposed by § 362 of the Bankruptcy Code.
The claim of Ellis for relief is based on § 362(d)(1) and § 362(d)(2)(A), (B). It is the contention of Ellis that it is entitled to be relieved from the automatic stay first “for cause”, i. e. due to lack of adequate protection or in the alternative on the grounds that the Debtor lacks equity in the subject property and that the property is not needed for an effective reorganization.
*56The evidence presented at the final evi-dentiary hearing reveals that the Debtor is the owner of certain real property on which Ellis holds a first mortgage. It further appears that mortgage payments to Ellis are current, albeit, not due to payments made by the Debtor, but by a guarantor, Mr. Sullivan, of the obligation created by the mortgage note encumbering the subject property. It further appears from the record that the indebtedness due to Ellis secured by the mortgage is in the approximate amount of $175,000 although there are other encumberances on the property total-ling approximately $350,000. The uncontra-dicted testimony indicates that the property is worth at least $650,000. There is no question that this property is the sole asset of the Debtor and if the property is lost in foreclosure, the Debtor’s chances to effectuate a business reorganization are nil. There is no evidence in this record which indicates that the physical integrity of the property is in jeopardy or that the property is subject to ongoing depreciation. It appears that the Debtor has a sale for the subject property which, if completed, will produce more than sufficient funds to satisfy all outstanding obligations of the Debtor. While there is evidence in the record that a prospective purchaser is operating the establishment of a lease, no such lease agreement has been approved by this Court and it also appears that the matter of operation might put the liquor license in jeopardy. The payments made by the guarantor, Mr. Sullivan, in order to keep the mortgage current, are a total of three months payments and according to the president of the Debtor, will be paid to Mr. Sullivan before the end of November. The closing for the sale of the establishment is targeted and scheduled for January of 1982.
Considering the foregoing, this Court is satisfied that the evidence presented would not justify finding cause for lifting the stay and it is quite evident and clear that the Debtor has substantial equity in the property and that without the property, the Debt- or cannot effectuate an effective reorganization. Thus, the property is necessary for reorganization. However, in order to assure that the position of Mr. Sullivan is not in jeopardy, the Debtor is required to present, within one week from the date of entry of this order, an application for approval of the proposed lease, a report on the status of a liquor license, a proof of payment of the monthly mortgage payment to Ellis and an assurance that the payments made on the arrearages and cured by Mr. Sullivan are reimbursed to Mr. Sullivan not later than November 30, 1981.
A separate final judgment will be entered in accordance with the foregoing. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489139/ | MEMORANDUM OPINION
EMIL F. GOLDHABER, Bankruptcy Judge:
The narrow issue before us is whether we should grant the motion of Walnut Knolls Associates for leave to intervene in the above captioned adversary proceeding. We conclude that we should.
The facts before us are as follows:1
On April 14, 1981, Citibank filed a complaint for relief from the automatic stay against Fidelity America Mortgage Co., a Delaware Corporation, (“the debtor”) seeking an order permitting Citibank to proceed with foreclosure actions against certain property known as the Walnut Knolls Apartments. A hearing was held thereon on July 29, 1981, at which time some testimony was taken and the trial was continued. Thereafter, Walnut Knolls Associates (“WKA”) filed the instant motion to intervene in that action.
In its motion to intervene, WKA alleges that it has an interest in the subject of the action because it contends that, prior to the institution of the complaint, the debtor had conveyed title to it of the buildings comprising the Walnut Knolls Apartments as well as granting it an option to purchase the underlying land. In addition, WKA asserts that it is so situated that any decision in the instant complaint may impair its ability to protect its interests in that property. Furthermore, WKA asserts that, because the debtor has been removed as the general partner of WKA, the debtor will not adequately represent the interests of WKA in the action for relief from the stay.
We conclude that WKA has demonstrated that it is entitled to intervene in the instant action. Rule 24 of the Federal Rules of Civil Procedure (made applicable herein by Rule 724 of the Rules of Bank*72ruptcy Procedure) provides in pertinent part:
(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action .... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.
Clearly one who claims to have an interest, different from the debtor’s, in property which is the subject of a complaint for relief from the stay imposed on a creditor of the debtor’s has the right to intervene in that action and to be heard on the issue of the appropriateness of that relief. This is demonstrated by the fact that the automatic stay provisions of the Bankruptcy Code (“the Code”) are as much for the benefit of the creditors as for the debtor’s benefit. The legislative history to § 362(a) thus provides in part:
The automatic stay also provides creditor protection. Without it, certain creditors would be able to pursue their own remedies against the debtor’s property. Those who acted first would obtain payment of the claims in preference to and to the detriment of other creditors. Bankruptcy is designed to provide an orderly liquidation procedure under which all creditors are treated equally. A race of diligence by creditors for the debtor’s assets prevents that.
H.R.Rep.No.95-595, 95th Cong., 1st Sess. 340 (1977); S.Rep.No.95-989, 95th Cong. 2d Sess. 49 (1978), U.S.Code Cong. & Admin. News 1978, pp. 5787, 6296. Consequently, we conclude that WKA should be permitted to intervene in the instant action.
The objections of Citibank to WKA’s motion to intervene do not persuade us otherwise. Citibank argues, first, that WKA is not entitled to intervene in the instant case because a decision on the complaint for relief from the stay will not impair WKA’s ability to protect its interests. Citibank argues that this is so because, even if relief from the stay is granted, WKA will still have the opportunity to defend the foreclosure action in the state courts. We disagree with Citibank’s assertion because, as we stated above, WKA, as a creditor of the debtor, is entitled to the benefits of the automatic stay and it is the right to protect that interest which will be impaired if WKA is not permitted to intervene herein.
Citibank argues, in addition, that to permit WKA’s intervention would introduce extraneous issues which are not appropriate in a § 362 proceeding. While we agree with Citibank’s assertion that the issues relevant in a § 362 action are narrow ones (namely, the grounds stated in § 362(d) on which relief from the stay may be founded), we find no evidence that WKA’s intervention will raise any issues other than those appropriate under § 362(d).
Citibank also objects on the ground that intervention will cause an undue delay in the proceedings which will prejudice its rights. Again, we disagree because we find that there need not be any delay caused by WKA’s intervention. The continued trial of this matter is presently scheduled for October 28, 1981,2 and we find that that allows ample time for WKA to intervene, to file whatever pleading it desires and prepare for trial before that date.
Citibank further argues that the motion of WKA is procedurally defective in that it is not accompanied by a pleading setting forth the claim or defense for which intervention is sought. While we agree that Rule 24(c) of the Federal Rules of Civil Procedure contains such a requirement, we conclude that Citibank is not harmed by WKA’s error. We will, however, direct WKA to file such a pleading within 10 days of the date of the order accompanying this opinion.
. This opinion constitutes the findings of fact and conclusions of law required by Rule 752 of the Rules of Bankruptcy Procedure.
. In its objection herein, Citibank has admitted that the delay to date has, in part, been occasioned by its need to complete discovery. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489140/ | FINDINGS AND CONCLUSIONS
JOSEPH A. GASSEN, Bankruptcy Judge.
This adversary proceeding commenced with the filing of a complaint by Hobart Corporation against the debtor, the trustee, William Roemelmeyer, and the landlord, Wilbur Kohn for turnover of certain equipment which Hobart had furnished to the debtor and for which it had not been compensated. Hobart’s problem had been resolved prior to the trial of issues between *84other parties to which these Findings and Conclusions are directed.
The landlord, Wilbur Kohn utilized the proceeding to file a cross-claim against the trustee, William Roemelmeyer, in which the landlord asserted a claim for administrative rent from the period of September 29, 1980 through January 31, 1981 (C.P. No. 22). September 29,1980 is the date that the case was converted from chapter 11 in which the debtor had been debtor-in-possession to chapter 7 and William Roemelmeyer was appointed trustee. The landlord made a new lease with Entrees, Internationale, Inc. on January 20, 1981, the term of which commenced February 1, 1981. This lease together with a letter of understanding dated January 21, 1981, a business sale agreement dated February 1, 1981 and letter of understanding and addenda dated January 24, 1981, were received into evidence as Landlord’s Exhibit No. 5.
The trustee filed a several count counterclaim against the landlord but immediately prior to trial was granted leave to dismiss that counterclaim without prejudice (C.P. No. 60). Consequently, the matter was tried before the court on July 28, 1981 on the landlord’s cross-claim (denoted counterclaim) against the trustee for administrative rent and the trustee’s response thereto (Answer portion of C.P. No. 23).
Prior to these proceedings, the debtor had occupied the subject premises pursuant to a lease dated November, 1973 between Wilbur Kohn as landlord and Marcella’s Italian Commissaries, Inc. as tenant (Landlord’s Exhibit No. 1). The term of that lease was for ten years commencing December 1,1973 and ending November 30,1983 at an agreed rental of $335 per month. The original tenant was a corporate affiliate of the debt- or in this case. Both corporations commenced proceedings in this court under chapter 11 of the Bankruptcy Code on April 28,1980 and both were converted to chapter 7 prior to the trial of this adversary proceeding. There is no dispute between the parties that the debtor in this case had occupied the premises under the terms and conditions of Landlord’s Exhibit No. 1 even though there apparently was no formal assignment of the original lease from Marcella’s Italian Commissaries, Inc. to Marcella’s Pasta Fresca, Inc.
Defaults in the payment of rent on the part of the tenant led to eviction proceedings on June 20, 1979 which were resolved by a new and different rental arrangement with respect to the continued use and occupancy of the premises by the tenant. To reinstate the tenancy, the landlord and tenant had apparently agreed orally on the payment of $2,600 per month payable weekly to bring the rent current and for continuance of the use and occupancy. (Testimony of Wilbur Kohn.) However, the tenant did not continue to make the payments necessary to reinstate the tenancy and as a consequence the landlord served the statutory fifteen day notice of termination of tenancy on Marcella’s Italian Commissaries, Inc. on December 14, 1979 (Landlord’s Exhibit No. 3). Thereafter, on December 23, 1979, the landlord delivered a letter to Marcella’s Pasta Fresca, Inc. stating that if that entity continued to occupy the premises after the termination of the tenancy on December 31, 1979 as per the notice of December 14,1979, that the rent would be $1,200 per week (Landlord’s Exhibit No. 2).
It was in about January, 1980 that new officers began acting for the debtor and they attempted to continue to operate while trying to pay $650 per week rent. This was later reduced to $350 per week which was what debtor-in-possession said it could “handle”. (Wilbur Kohn’s testimony).
The debtor continuously occupied the premises until the filing of the petition in chapter 11 on April 28, 1980 and thereafter as debtor-in-possession until September 29, 1980 at which time William Roemelmeyer was appointed trustee and took possession as such.
Wilbur Kohn entered into a “letter of general understanding” with Kevin J. McKeon on September 6, 1980 pursuant to which McKeon was permitted certain use of the premises defined therein and in anticipation of a complete lease being entered into between Kohn and McKeon or a corpo*85ration to be formed by him (Landlord’s Exhibit No. 4). The testimony shows that McKeon did in fact use and occupy the premises from approximately September 21, 1980 through January, 1981. Entrees, Internationale, Inc. is the corporation which was formed by McKeon and associates and which then entered into the lease (Landlord’s Exhibit No. 5). The testimony further shows that McKeon did pay $350 per week to Kohn during the September, 1980 —January, 1981 interval. The trustee made no payments to Kohn during any of the time from his appointment on September 29, 1980 through January 31, 1981.
In this adversary case the landlord contends that he is entitled to administrative rent calculated as the difference between the rental value of the premises and the amount of rent he collected from McKeon from September 21, 1980 through January 31, 1981. The landlord testified that the rental value of the property during that period of time was $5,000 per month. He offered no other evidence of rental value. The trustee on the other hand contends that the rental value of the premises was no more than the total paid to the landlord by McKeon throughout the time involved in this proceeding. Kohn’s testimony was that McKeon had paid the $350 for an agreed twelve week period starting in September, 1980 and then continued making the payments after the twelve weeks. Kohn stated that he was seeking around $3,000 — $4,000 per month rent but had no other offers. The landlord further contends that he could not permanently re-rent the premises until after all the equipment belonging to debtor and its affiliated corporations had been removed from the premises. However, the facts are that the letter of general understanding with McKeon was entered into with much of that equipment still on the premises and that some equipment remained on the premises on January 20,1981 and February 1, 1981, the respective dates upon which Entrees, Internationale, Inc. executed Landlord’s Exhibit No. 5 and the term of that lease commenced.
Notwithstanding the landlord’s feeling that the market rental value of the premises from September 29, 1980 through January 31,1981 was $20,000 ($5,000 per month), the court finds that the rental value was not more than $350 per month as evidenced by the lease made by the landlord with Entrees, Internationale, Inc. on January 20, 1981 for a term of five years (Landlord’s Exhibit No. 5). The original lease with Marcella’s Italian Commissaries, Inc. which would have extended through November, 1983, had there been no default, provided for rent of $335 per month. The court doubts the landlord’s ability to have re-rented the premises at amounts in excess of the rental provisions under the lease. He did not actually evict this debtor and/or Marcella’s Italian Commissaries, Inc. despite serious rental defaults. Had the rent which Kohn testified was reasonable been available from anyone else, it is unlikely that he would have been as indulgent of the debtor from his notice of termination in December, 1979 until the petition under chapter 11 was filed in April, 1980 and thereafter through the debtor-in-possession period.
If it is landlord’s theory that the additional consideration from Entrees, Internationale, Inc. under the Business Sale Agreement (part of Landlord’s Exhibit No. 5) should also be considered in determining the rental value of the premises, then we reject that theory since the additional $1,200 per month is “In consideration of Wilbur Kohn (Individual) relinquishing the Real Properties, as stated in the Business Lease, to Entrees, for the Conduct of Entrees’ business enterprise.... ” The Business Sale Agreement further states that Wilbur Kohn formerly conducted his personal business from the leased premises. This implies that the use and occupancy granted to Entrees, Internationale, Inc. is greater than that previously enjoyed by the debtor or the trustee. Therefore, we find and conclude that the rental value of the premises from September 29, 1980 through January 31, 1981 was $350 per month.
During that period of time, the landlord collected in excess of $4,200 from McKeon pursuant to Landlord’s Exhibit No. 4. Even though the landlord characterized *86these payments from McKeon as “option” payments, the fact is that McKeon used and occupied the premises during this period. Therefore, we impute a portion of the $4,200 to be for the use and occupancy during the four month period. That portion is $350 per month for four months, or $1,400. The receipt of this by Kohn fully satisfies the rental value and the trustee owes nothing to the landlord for administrative rent.
In accordance with Bankruptcy Rule 921(a), a separate Final Judgment incorporating these Findings and Conclusions is being entered this date. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489141/ | OPINION
WILLIAM A. KING, Jr., Bankruptcy Judge:
The issue presented is whether the plaintiff is entitled to relief from the automatic stay provisions of § 362(a) of the Bankruptcy Code (“the Code”) to permit it to proceed with mortgage foreclosure against the residence of the defendants/debtors. We conclude that the plaintiff is entitled to the requested relief because the debtors lack equity in their property and because the debtors have failed to provide the plaintiff with adequate protection of its interest in their property.
The facts of the instant case are as follows: 1 On November 30, 1977, Michael E. and Donna M. Ruane (“the debtors”) executed a note in the amount of $24,000 to Forbes Mortgage Company (“Forbes”) and a mortgage securing that note on the debtors’ residence located at 4652 Shelbourne Street, Philadelphia, Pennsylvania. That mortgage was thereafter assigned to First Federal Savings and Loan Association of Philadelphia (“the plaintiff”). The mortgage and assignment were duly recorded.
Beginning in March, 1980, the debtors failed to make the current monthly mortgage payments due the plaintiff. The plaintiff began mortgage foreclosure proceedings in state court, obtained judgment against the debtors and had the debtors’ residence listed for sheriff’s sale on April 6, 1981. On April 3, 1981, the debtors filed a petition for an adjustment of their debts under chapter 13 of the Code. Thereafter, on July 9, 1981, the plaintiff filed the instant complaint for relief from the stay.
Section 362(d) states the grounds necessary for relief from the stay and provides:
(d) On request of a party in interest and after notice and a hearing, the court shall grant relief from the stay provided under subsection (a) of this section, such as by terminating, annulling, modifying, or conditioning such stay—
(1) for cause, including the lack of adequate protection of an interest in property of such party in interest; or
(2) with respect to a stay of an act against property, if—
(A) the debtor does not have an equity in such property; and
(B) such property is not necessary to an effective reorganization.
At the trial of the instant complaint, the only evidence presented on the issue of the debtors’ equity in their property was that of the plaintiff’s witnesses. They testified that the amount of the debt owed the plaintiff, as of August, 1981, was $29,364.30 while the fair market value of the debtors’ residence is $30,000.00. One of the plain*89tiff’s witnesses also testified that the difference between those two figures would not be enough to cover the costs of the sale (public or private) of the debtors’ residence. Based on that evidence (and the lack of any contravening evidence on the part of the debtors), we conclude that the debtors lack equity in their home.
The plaintiff also offered evidence that the debtors had missed a total of 15 monthly mortgage payments, that the plaintiff had had to incur numerous costs because of that default and that the total of those arrearages and costs were almost $6,000. Based on that evidence, the plaintiff asserted that it lacked adequate protection of its interest in the debtors’ property because the debtors would be unable to pay those costs and arrearages within a reasonable time while at the same time making the current mortgage payments. In response, the debtor-husband testified that they had made their current mortgage payments and had made the payments required under their plan to the chapter 13 standing trustee since June, 1981.
We conclude that the debtors have failed to sustain their burden of establishing that the plaintiff’s interest is adequately protected.2 This is so because the debtors failed to establish what the amount of their payments to the trustee is and how much of those payments will go to the plaintiff on account of the arrearages. Without such evidence, we cannot say that the debtors have offered the plaintiff adequate protection of its interest in their property.
Furthermore, on cross examination of the debtor-husband, the plaintiff established that the debtors’ plan listed the arrearages due to the plaintiff at almost half of what the plaintiff had established at trial was due. In addition, the debtor-husband admitted that the debtors’ plan provided for a $1,000 payment to the plaintiff as soon as the debtors’ tax refund check came in and that the debtors had not made that payment but had, instead, used that money to pay other creditors.
Based on all of the above, we conclude that the plaintiff is entitled to relief from the automatic stay pursuant to § 362(d)(1) and § 362(d)(2).
. This opinion constitutes the findings of fact and conclusions of law required by Rule 752 of the Rules of Bankruptcy Procedure.
. See 11 U.S.C. § 362(g)(2). | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8489143/ | FINDINGS AND CONCLUSIONS
JOSEPH A. GASSEN, Bankruptcy J udge.
This adversary proceeding was brought by the plaintiff to recover $19,217.82 which the plaintiff contends, it as debtor-in-possession, erroneously paid to the defendant Bostwick Steel Lath Company from debtor-in-possession funds on an account which *123existed prior to the filing of the chapter 11 proceeding on November 13, 1980. The payment was made on November 17, 1980. The defendant contends that the obligation was that of J. R. Hatmaker personally and not a JEPSCO Building Materials, Inc. obligation. J. R. Hatmaker was the chief executive officer, chairman and controlling stockholder of JEPSCO Building Materials, Inc. Defendant further contends that it did not know that it was being paid in debtor-in-possession funds since it received the proceeds of the cashier’s check issued to it prior to the time it learned of the filing of the voluntary petition under chapter 11 of the Bankruptcy Code. The plaintiff contends that the obligation was in fact that of debt- or rather than Hatmaker, but regardless, it was paid with debtor-in-possession funds which should be returned.
Based upon the evidence presented at the trial on June 8, 1980, the court finds the following to be the operative facts in this case:
1. Prior to September 15,1980, Bostwick was a supplier to JEPSCO.
2. Prior to September, 1980, Bostwick was having difficulty collecting its account receivable from JEPSCO and refused to extend further credit to it.
3. On September 15,1980, J. R. Hatmaker promised to pay Bostwick for merchandise invoiced and shipped in July, 1980.
4. Thereafter, Bostwick was willing to ship and invoice merchandise only upon the credit or guaranty of J. R. Hatmaker and was unwilling to extend credit to JEPSCO.
5. On September 10, 1980, Bostwick invoiced materials in the amount of $17,452.10 to J. R. Hatmaker c/o JEPSCO Building Materials, Inc. at JEPSCO’s address which was paid on October 14, 1980. On October 10,1980, it invoiced materials in the amount of $19,572.50 to J. R. Hatmaker c/o JEP-SCO which was paid on November 19, 1980 from debtor-in-possession funds. (Actual payment was $19,217.82 upon allowance of a $354.68 discount). A JEPSCO check was originally drawn on November 14,1980, the day after the petition was filed, upon orders given to the accountant prior to the filing, and it was replaced by a cashier’s check which Bostwick deposited on November 19, 1980. It is this payment that the plaintiff seeks to recover in this action. On January 14, 1981, Bostwick invoiced another $7,801 to Hatmaker c/o JEPSCO which had been paid in advance and for which there apparently is a credit due by reason of a discount.
6. JEPSCO filed its voluntary petition under chapter 11 of the Bankruptcy Code on November 13,1980. Bostwick was listed as a creditor in JEPSCO’s schedules and was appointed to the committee of unsecured creditors by reason thereof. Bost-wick had no actual notice thereof on November 19, the date upon which it received and credited the $19,217.82 payment in the form of a cashier’s check deposited to its account.
7. The funds for payment came from the funds belonging to the plaintiff as debt- or-in-possession but Bostwick had no knowledge of this at the time payment was received.
8. Hatmaker has not paid that amount to Bostwick so that Bostwick has not received double payment nor has Hatmaker reimbursed JEPSCO the amount which JEPSCO paid to Bostwick.
9. JEPSCO did not join Hatmaker as a defendant and Bostwick has not sought to join Hatmaker as a third party defendant against whom it could cross-claim in this adversary proceeding.
10. Hatmaker entered into this transaction with Bostwick for the benefit of JEP-SCO and JEPSCO prior to November 13, 1980 received the merchandise. There is no evidence as to what portion, if any, of either the merchandise or the proceeds of sale were in the possession of JEPSCO when it became debtor-in-possession on November 13, 1980.
The court is asked to decide whether Bostwick should be required to refund the $19,217.82 to the debtor-in-possession.
11 U.S.C. § 549(a) provides in pertinent part that the trustee may avoid a transfer of property of the estate that occurs after *124the commencement of the casé and is not authorized under the Bankruptcy Code or by the court. 11 U.S.C. § 1107(a) vests a debtor-in-possession with the rights and powers of a chapter 11 trustee.
The payment to Bostwick here occurred after the commencement of the case and was unauthorized. It does not fall within the exceptions enumerated in § 549(b) and (c). Although at common law plaintiff may not have been permitted to recover where, as here, it mistakenly made a payment contrary to law, § 549, which supersedes the common law, mandates recovery.
Pursuant to B.R. 921, a Final Judgment incorporating these Findings and Conclusions is being entered this date. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490279/ | OPINION ON COMPLAINT TO DETERMINE DISCHARGEABILITY OF DEBT
A. POPE GORDON, Bankruptcy Judge.
In this Chapter 13 case, debtor filed a complaint to determine the dischargeability of a debt for child support which was assigned by debtor’s former wife to Santa Clara County, State of California and Family Support Trustee of Santa Clara County, California prior to August 13, 1981.
Trial was held February 5, 1986, in Opeli-ka, Alabama before the Honorable A. Pope Gordon, Bankruptcy Judge for the Middle District of Alabama. Present were the debtor/plaintiff, the debtor’s attorney, and the Assistant District Attorney for the 37th Judicial Circuit (Lee County) of Alabama, acting as agent for Santa Clara County, California, and Family Support Trustee of Santa Clara County, defendants.
The undisputed facts of this case are the following:
1. Debtor filed a Chapter 13 petition January 17, 1985.
*872. December 9, 1985, debtor filed an amended Schedule A-3, (creditors having unsecured claims without priority) to add the defendants’ claim in the amount of $18,385.89.
3. This claim is the result of child support payments made by the defendants to the debtor’s former wife, Nancy Erlene Petty, prior to September, 1979.
4. The former Mrs. Petty had assigned her rights to support payments to the defendants pursuant to 42 U.S.C. § 602(a)(26) before August, 1981.
5. The District Attorney for the 37th Judicial Circuit of Alabama acts as agent for the defendants under authority provided under the Uniform Reciprocal Enforcement of Support Act. Alabama Code § 30-4-80, et seq. (1975).
The issue before the court is whether the dischargeability of this debt should be determined by the bankruptcy law in effect prior to August 13, 1981.
Debtor argues that the provisions of the 1981 Amendment to § 523(a)(5)(A) which excluded from dischargeability those child support debts assigned to a state agency under 42 U.S.C. § 602(a)(26) were not retroactive. Thus the debt to defendants having been incurred and assigned before the 1981 amendment ought to retain its status as a dischargeable debt. Omnibus Budget Reconciliation Act of 1981. (August 13, 1981, P.L. 97-35, Title XXIII, Subtitle A, Ch. 2, § 2334(b), 95 Stat. 863) (11 U.S.C. § 523(a)(5)(A)).
The defendants base their assertion of nondischargeability on the plain language of the Code in force when the debtor filed his petition, and on a Seventh Circuit case. See Matter of Stovall, 721 F.2d 1133 (7th Cir.1983).
At the time of the passage of the 1981 Amendment to § 523(a)(5)(A), there were cases pending in which the petitions had been filed but discharges had not entered. The Ninth Circuit Court of Appeals reversing the District Court held that the amendment to the Code was applicable to cases pending on the effective date of the statute. See Matter of Reynolds, 726 F.2d 1420 (9th Cir.1984). However, the Tenth Circuit determined that the language of the amendment indicated that the legislature intended prospective enforcement. Franklin v. State of New Mexico, etc., 730 F.2d 86 (10th Cir.1984).
The August 13, 1981 Amendment is discussed in 3 Collier on Bankruptcy, § 523.-15 at 523-112 (15th Ed.) as follows:
“While the decision of one court might indicate that the date of dischargeability hearing should be used as the controlling date, the better view is that the law in existence on the date of the filing of the petition should govern.” [Footnotes omitted]
It appears that while there may have been some controversy concerning this issue for cases pending at the time of the enactment of the 1981 amendment, it is clear that cases filed prospectively were to be governed by the amended law.
The argument of the defendants is well taken, and the court finds that the debt owed to them is nondischargeable.
An appropriate order will enter. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490280/ | ORDER ON MOTION FOR SUMMARY JUDGMENT
ALEXANDER L. PASKAY, Chief Judge.
THIS IS a Chapter 11 case and the matter under consideration is a Motion For Summary Judgment filed by George Hunt, Inc., the Debtor in the above-styled adversary proceeding. The adversary proceeding was initiated by a Complaint filed by Jack and Shirley Pines, seeking to recover damages suffered by the Plaintiffs as a result of the Debtor’s performance under a construction contract between the parties. Plaintiff’s asserted causes of action against the Debtor are based on breach of contract, implied warranty and negligence involving Debtor’s construction of the roof of the Plaintiff’s shopping mall. It is the contention of the Debtor that there are no genuine issues of material fact and that George Hunt, Inc., the Debtor, is entitled to judgment as a matter of law. The Debtor’s claim is based on the proposition that the causes of action asserted against the Debt- or are subject to the four year statute of limitations pursuant to Chapter 95.11(3) of the Florida Statutes. This claim by the Debtor is the threshold issue to be resolved. The facts relevant to a resolution of the matter under consideration may be summarized as follows:
Jack and Shirley Pines, the Plaintiffs in this adversary proceeding, are the owners of the Winter Haven Mall, a shopping center in Winter Haven, Florida. On or about January 21, 1971, the Plaintiffs, as owners and the Debtor, George Hunt, Inc., as contractor, entered into a contract for the construction of the Winter Haven Mall. Subsequent to the execution of the aforementioned contract, the Defendant, George Hunt, Inc., constructed the Winter Haven *129Mall and possession of the premises was delivered by this Defendant, as general contractor, to the Plaintiffs herein, as owners, in September of 1971. After completion of the construction and delivery of possession, the roof of the Winter Haven Mall began leaking in 1971, even prior to the opening of the shopping mall for business in September, 1971. (Deposition of Evans, page 8, line 7-24). The roof began to show a “bad” leaking situation in 1971 with 15 leaks (Deposition of Evans, page 10, line 18 through page 11, line 5). The leaks were reported to and repaired by this Debtor, at the request of the Plaintiffs, for approximately a one year period from September of 1971 through September of 1972. (Deposition of Evans, page 13, line 22, page 14, line 8).
The claimants first filed suit on their alleged defective roof claim against George Hunt, Inc. on January 11, 1978 in Case No. GC-G-78-74-7 in the Circuit Court for Polk County, Florida. The Debtor’s petition for relief under Chapter 11 of the Bankruptcy Code was filed on September 24, 1982 before final resolution of that case.
There were multiple defendants, cross-claims and third party claims involved in the Polk County suit. On May 5, 1983, Defendant Celotex Corporation, General Insurance Company, Giffen Roofing Co. and Gulfstream Land & Development Corp. settled among themselves and entered into a mutual release Of all claims which purported to exclude George Hunt, Inc. Therefore, the only claims still pending are this present adversary complaint of Pines v. George Hunt, Inc. and George Hunt, Inc.’s third party complaint against Giffen Roofing Co. and George Hunt, Inc’s crossclaim against Celotex Corp. in the Circuit Court action.
When the roof began leaking in 1971 and the leak became worse during the months that followed, the Plaintiff agreed that it had an obvious leaky roof problem and repeatedly called the Debtor to fix the roof. At that point, in September of 1971, the Plaintiff had or might have had a cause of action if it had been raised within the four year prescribed statute of limitations pursuant to Fla.Stat.Ann. § 95.11(3) (West 1982).
The Plaintiffs have not raised a possible tolling of the statute of limitations due to latent defects in avoidance of the Debtor’s affirmative defense. However, the issue is addressed here because even if the Plaintiffs had properly pled a latent defect, the history of leaks since 1971 established that as a matter of law the Plaintiffs knew of should have known of the alleged defect more than four years prior to January 11, 1978, the date that the Plaintiffs first filed suit.
Based on the foregoing, the Court is satisfied that the threshold issue has clearly established that the Plaintiffs failed to assert a cause of action within the four year applicable statute of limitations, leaving no genuine issues of material fact and as such, the Debtor is clearly entitled to summary judgment as a matter of law since the cause of action accrued in September, 1971, but no action on the claim was asserted until January 11, 1978. The Court will not determine any remaining issues pending in any lawsuit in a non-bankruptcy forum.
Accordingly, it is
ORDERED, ADJUDGED AND DECREED that the Motion for Summary Judgment filed by George Hunt, Inc. be, and the same is hereby, granted. A separate final judgment will be entered in accordance with the foregoing. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490282/ | MEMORANDUM OPINION AND ORDER
RICHARD L. SPEER, Bankruptcy Judge.
This cause comes before this Court upon the Motions For Summary Judgment filed by both the Plaintiff and the Defendant in the above entitled adversary action. The parties have submitted their written arguments regarding these Motions and have had the opportunity to respond to the arguments made by opposing counsel. The Court has reviewed those arguments as well as the entire record in this case. Based upon that review and for the following reasons the Court finds that Summary Judgment should be GRANTED, and that Judgment should be entered for the Defendant.
FACTS
The facts in this case do not appear to be in dispute. The record reflects that the Debtor served in the United States Marine Corps between the years 1973 and 1975. As a result of medical problems which arose during his tour of duty, the Debtor was discharged from the service and was awarded certain Veterans Administration benefits. Among these benefits was a life insurance policy established and administered under the provisions of 38 U.S.C. Section 722(a). This section allows a veteran to establish a life insurance policy up to the amount of Ten Thousand and no/100 Dollars ($10,000.00). Premiums for this policy are paid, in part, by the veteran, with the remaining portion of the premium paid by the Veterans Administration. The policy builds a cash surrender value throughout the veteran’s lifetime and may be redeemed in by the veteran at any time prior to maturity or upon maturity. A veteran is not entitled to reinstitute coverage under this program. If a policy lapses for nonpayment of premiums or is redeemed, no further participation in the program is permitted. The value of the Debt- or’s policy, as of the time of filing, was approximately One Thousand and no/100 Dollars ($1,000.00). The program does not issue dividends to the veteran.
The Debtor filed his voluntary Chapter 7 Petition with this Court on March 21, 1984. Although not reflected on the schedules filed with that Petition, the Debtor disclosed his interest in this policy. In an effort to recover the cash surrender value for the benefit of the Debtor’s creditors, the Trustee-Plaintiff has filed this adversary action. In this case, the Trustee asserts that the insurance policy is part of the estate, and as the Trustee of that estate, he is entitled, under the provisions of the Bankruptcy Code, to exercise the Debt- or’s right to redeem the policy. The Debt- or contends that the policy is exempt from the estate pursuant to the provision of Title 38. It should be noted that the Debtor did not list the policy as an exemption.
LAW
The provision of 11 U.S.C. Section 541(a) states in pertinent part:
(a) The commencement of a case under section 301, 302, or 303 of this title ... creates an estate. Such estate is comprised of all the following property, wherever located and by whomever held: (1) ... all legal or equitable interests of the debtor in property as of the commencement of the case.
Under this provision, a life insurance policy owned by a debtor and any cash surrender value becomes property of the estate. See, *146In re Pealman, 16 F.2d 20 (2nd Cir.1926), Fisher v. Insurance Co. of the State of Pennsylvania (In re Pied Piper Casuals, Inc.), 50 B.R. 549 (Bkcy.S.D.N.Y.1985).
The provisions of 11 U.S.C. Section 522(b) state in pertinent part:
(b) Notwithstanding section 541 of this title ... an individual debtor may exempt from property of the estate the property listed in either paragraph (1) or, in the alternative, paragraph (2) of this subsection ... Such property is—
(1) property that is specified under subsection (d) of this section, unless the State law that is applicable to the debtor under paragraph (2)(A) of this subsection specifically does not so authorize; or, in the alternative,
(2)(A) any property that is exempt under Federal law, other than subsection (d) of this section, or State or local law that is applicable on the date of the filing of the petition ...
Under these provisions a debtor may exempt from the estate any rights or interests which are made exempt under the provisions of any United States statute, and the exemptions made available under state law. See, In re Gustinis, 16 B.R. 108 (Bkcy.E.D.Va.1981), In re Carstens, 8 B.R. 524 (Bkcy.N.D.Iowa 1981), 3 Collier on Bankruptcy 15th ¶ 522.21. Although Ohio has “opted-out” of the Federal exemption scheme set forth in 11 U.S.C. Section 522(d), see, Ohio Revised Code Section 2329.662, this preclusion does not prevent a debtor from asserting an exemption which is available under statutes other than 11 U.S.C. Section 522(d). The provision of 11 U.S.C. Section 522(b)(2)(A) specifically authorize a debtor, who resides in a state that has opted-out, to claim an exemption in property that is made exempt under both State law and Federal law other than 11 U.S.C. Section 522(d). Even if it were to operate in a fashion which would preclude the use of exemptions under other “Federal law”, the provisions of the Ohio Revised Code Section 2329.66(A), which state in pertinent part:
(A) Every person who is domiciled in this state may hold property exempt from execution, garnishment, attachment, or sale to satisfy a judgment or order, as follows:
(16) Any property that is specifically exempted from execution, attachment, garnishment, or sale by federal statutes other than the “Bankruptcy Reform Act of 1978,” 92 Stat. 2549, 11 U.S.C.A. 101 et seq., as amended.
specifically allow a debtor to exempt property which is made exempt under other federal statutes.
The provisions of 38 U.S.C. Section 3101(a) state in pertinent part:
(a) Payments of benefits due or to become due under any law administered by the Veterans’ Administration ... shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary ...
This section renders exempt from creditors any benefits administered by the Veterans Administration which are to be paid to or received by a veteran.
In the present case, it is readily apparent that the insurance policy is available to the Debtor through the Veterans Administration. It is also apparent that if this policy is protected by the provisions of 38 U.S.C. Section 3101(a), it may be held exempt as an exemption provided by Federal law, pursuant to 11 U.S.C. Section 522(b)(2)(A) and Ohio Revised Code Section 2329.66(A)(16). Therefore, the dispositive question in this case is whether the policy in question is afforded the protection available under 38 U.S.C. Section 3101(a). States specifically, the question is whether the policy in question is a benefit which is “due or to become due under any law administered by the Veterans Administration.”
In resolving this question, the Court recognizes the well recognized principle that a liberal interpretation must be accorded any statute which addresses veterans benefits. Porter v. Aetna Casualty & Surety Co., 370 U.S. 159, 82 S.Ct. 1231, 8 L.Ed.2d 407 *147(1962). In that regard, it must be noted that the availability of this policy is limited to those persons who have served in the armed forces of the United States. 38 U.S.C. Section 767. It is beneficial to those persons, inasmuch as it provides their dependents and beneficiaries with some financial security in the event of the veteran’s death. It also provides a means by which a veteran can support himself and his dependents in the event of unforeseen financial difficulties or further disability. These purposes are consistent with those contemplated by the legislature when the exemption was created. Porter v. Aetna Casualty & Surety Co., supra. These purposes are made especially applicable in the present case, in view of the Debtor’s existing partial disability. Although similar policies are available to the general citizenry through private companies, the policy in question was offered to the Debtor as a result of his military service and is available at a reduced rate. Furthermore, the Veterans Administration subsidizes these policies and supervises their administration. They also offer an automatic deduction of the insured’s premium from other benefits to which the insured is entitled.
In view of the limited eligibility for the policies, the liberal construction accorded to Veteran’s legislation, and the benefits it affords to a veteran, it must be concluded that such insurance policies are a “benefit due” as contemplated by the provisions of 38 U.S.C. Section 3101(a). Inclusion in the protection afforded by that section allows the Debtor to claim an exemption in the policy under the provisions of both 11 U.S.C. Section 522(b)(2)(A) and Ohio Revised Code Section 2329.66(A)(16). Since the exemption is properly asserted, it must also be concluded that the Trustee is not entitled to recover the cash surrender value of the policy.
In reaching these conclusions the Court has considered all the evidence and arguments of counsel, regardless of whether or not they are specifically referred to in this Opinion.
It is ORDERED that the Motions For Summary Judgment be, and are hereby, GRANTED.
It is FURTHER ORDERED that Judgment be, and is hereby, entered for the Defendant. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490283/ | MEMORANDUM
CLIVE W. BARE, Bankruptcy Judge.
At issue is whether Tenn.Code Ann. § 26-2-303 (1980), limiting the state homestead exemption for leaseholds to leasehold estates of more than two years, constitutes a denial of the debtors’ right to equal protection of the law under Amendment XIV of the Constitution of the United States.1
I
The debtors, husband and wife, filed a joint voluntary chapter 7 case on July 2, *1671985. In their subsequently filed Schedule B-4 debtors claimed a $7,500.00 homestead exemption in a 15-month residential leasehold interest for which debtors had prepaid the rent prior to their bankruptcy petition.
On April 16, 1985, the debtor husband executed the 15-month lease (commencing on April 20, 1985) in residential premises at 129 Golfcrest Lane in Oak Ridge, Tennessee. The lease called for a monthly rental of $500.00, payable on the first day of each month. The debtors, however, chose to pay in advance the $7,500.00 rent for the entire 15-month term.
The trustee in bankruptcy objected to the debtors’ claim of exemption on the grounds that the debtors’ leasehold interest fails to qualify for the homestead exemption under the explicit provisions of Tennessee’s homestead exemption statutes.
II
In Tennessee, the statutory homestead exemption with respect to leasehold estates is limited to leasehold estates of more than two and not exceeding fifteen years in duration. The pertinent statute provides:
Leasehold estates. — The provisions of § 26-2-3012 shall apply to leasehold real property which is possessed by an individual and used by him, his spouse, or a dependent, as a principal place of residence provided such leasehold estate is for more than two (2) and not exceeding fifteen (15) years. The homestead exemption upon leasehold estates shall not be exempt from execution or attachment for rent due thereon.
Tenn.Code Ann. § 26-2-303 (1980).
Debtors contend that the exclusion of their 15-month leasehold estate from the terms of the homestead exemption statute represents an unconstitutional denial of equal protection of the law.3
In Taylor v. Madigan, 53 Cal.App.3d 943, 126 Cal.Rptr. 376 (Cal.Ct.App.1975) the plaintiff homeowners challenged the constitutionality of the California homestead exemption statute which denied any homestead exemption in real estate unless the homeowner recorded a declaration of homestead before a judgment lien had been created by the recording of an abstract of judgment. The plaintiffs (homeowners who had failed to record such a declaration prior to a judgment creditor’s writ of execution) asserted a denial of equal protection, contending that the statute unconstitutionally discriminated between the plaintiffs and two other classes receiving greater statutory protections, i.e. (1) those protected under a probate homestead statute affording surviving spouses a homestead exemption despite the failure of the de*168ceased head of family to establish one, and (2) owners of mobile homes entitled by statute to be notified at the time of levy of execution of a right and opportunity to claim an exemption from execution sale.
The court in Taylor first discussed the appropriate standard for an equal protection analysis of the statute. Differentiating two possible tests, the court noted the conventional standard for reviewing economic and social legislation, i.e. that the classifications drawn by the challenged statute merely bear some rational relationship to a conceivable, legitimate state purpose. 126 Cal.Rptr. at 394. The court acknowledged, however, that cases involving “suspect classifications” or “fundamental interests” required the application of the “strict scrutiny test” under which the state bears the burden of establishing that the statutory classification is necessary to promote some compelling state interest. Id.
With respect to the latter test, the court observed that “[t]he right of the family of a debtor to be secure in its home and protected against creditors, irrespective of the legitimate financial obligations of the debtor is not a fundamental right ‘explicitly or implicitly guaranteed by the Constitution.’ ” 126 Cal.Rptr. at 394 (quoting San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 33-34, 93 S.Ct. 1278, 1296-97, 36 L.Ed.2d 16 (1972)). Further, the court concluded that the statute did not involve a “suspect classification” such as a statutory distinction based on race. ‘ 126 Cal.Rptr. at 395.
Thus, said the court, only minimal scrutiny was required, and it had only to determine whether there was “any rational relationship between the statute and some legitimate state objective.” Id. Applying that test, the court found that the legislative distinctions between real and personal property and between families of living heads of household and deceased heads of household satisfied such a test. 126 Cal. Rptr. at 395.
This court is persuaded that a similar equal protection analysis is appropriate with respect to the homestead statute challenged in the instant case. See Dandridge v. Williams, 397 U.S. 471, 484-87, 90 S.Ct. 1153, 1161-62, 25 L.Ed.2d 491 (1970) (in area of state regulation of economics and social welfare, statutory discrimination neither affecting freedoms guaranteed by Bill of Rights nor infected with inherently suspect classification would not be set aside if any state of facts reasonably might be conceived to justify it); Lindsey v. Normet, 405 U.S. 56, 74, 92 S.Ct. 862, 874, 31 L.Ed.2d 36 (1972) (no constitutional guarantee of housing); Village of Belle Terre v. Boraas, 416 U.S. 1, 7, 94 S.Ct. 1536, 1540, 39 L.Ed.2d 797 (1974) (zoning ordinance restricting residential area to traditional families of not more than two unrelated persons did not burden fundamental right); Maher v. Roe, 432 U.S. 464, 471, 97 S.Ct. 2376, 2381, 53 L.Ed.2d 484 (1977) (financial need alone does not identify a suspect class for purposes of equal protection analysis).
Applying that analysis, this court finds that the distinction drawn for homestead exemption purposes in Tenn.Code Ann. § 26-2-303 between leasehold estates of more than two years and those of less than two years may be said to be reasonable, not arbitrary, and to bear a rational relationship to a legitimate state objective.
Homestead laws are founded on considerations of public policy, their purpose being to promote the stability and welfare of the state by encouraging property ownership and independence on the part of the citizen, and by preserving a home where the family may be sheltered and live beyond the reach of economic misfortune.
40 Am.Jur.2d Homestead § 4 (1968).
Each of these policies may clearly be seen to be more significantly furthered to the extent that the exempted property interest is characterized by a degree of permanence or of substantial duration. See also Swift v. Reasonover, 168 Tenn. 305, 77 S.W.2d 809 (1935) (controlling object of homestead laws is to protect family in the possession of a home as a fixed abode). It is neither arbitrary nor unreasonable for *169the legislature to have concluded that a leasehold estate of less than two years in duration does not advance the policies underlying homestead exemption statutes to a sufficient degree to warrant their protection. The court need go no further. “[T]he Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy.” Dandridge v. Williams, 397 U.S. at 486, 90 S.Ct. at 1162.
Under the standard set out above, Tenn. Code Ann. § 26-2-303 does not violate the debtors’ right to the equal protection of the laws guaranteed by the Fourteenth Amendment.
. In accordance with 28 U.S.C.A. § 2403(b) (West 1978), on February 4, 1986, this court certified to the Attorney General of the State of Tennessee that the validity of Tenn.Code Ann. § 26-2-303 (1980) has been challenged under the Constitution of the United States and drawn into question in this proceeding.
Thereafter, the Attorney General of the State of Tennessee requested an extension of time through March 16, 1986, in order to file a response.
To date, no such response has been forthcoming.
. This section provides in part:
Basic exemption. — (a) An individual, regardless of whether he is head of a family, shall be entitled to a homestead exemption upon real property which is owned by the individual and used by him, his spouse, or a dependent, as a principal place of residence. The aggregate value of such homestead exemption shall not exceed five thousand dollars ($5,000). Provided, however, individuals who jointly own and use real property as their principal place of residence shall be entitled to homestead exemptions, the aggregate value of which exemptions combined shall not exceed seven thousand five hundred dollars ($7,500), which shall be divided equally among them in the event said homestead exemptions are claimed in the same proceeding. Provided, further, if only one (1) of said joint owners of real property used as their principal place of residence is involved in the proceeding wherein homestead exemption is claimed, then said individual’s homestead exemption shall be five thousand dollars ($5,000). The homestead exemption shall not be subject to execution, attachment, or sale under legal proceedings during the life of the individual. Upon the death of an individual who is head of a family, any such exemption shall inure to the benefit of the surviving spouse and their minor children for as long as the spouse or the minor children use such property as a principal place of residence.
Tenn.Code Ann. § 26-2-301 (1980).
. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
U.S. Const, amend. XIV, § 1. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490285/ | FINDINGS OF FACT, CONCLUSIONS OF LAW AND MEMORANDUM OPINION
ALEXANDER L. PASKAY, Chief Judge.
THE MATTER before the Court in this Chapter 11 case is a Complaint For Equitable Reinstatement of A Lease of Real Estate filed by the Debtor, Bahia Resorts, Inc. It is important to point out at the outset what is and is not involved in the matter under consideration. This is not a proceeding which involves the question of whether this Debtor is able to comply with § 365(b)(1), (2) & (3) of the Bankruptcy Code which mandates that three conditions must be met before a Debtor is authorized to assume an unexpired, non-residential lease. What is involved here is the question of whether the Debtor is entitled to a reinstatement of an already terminated non-residential lease on equitable grounds. Unless the Debtor is able to establish its right to reinstate a terminated lease on equitable grounds, the evidence presented by the Debtor as to its ability to assume the lease under the terms of § 365 is academic.
With this in mind, one must now turn to the evidence presented in support of and in opposition to the Defendant’s right to reinstate on equitable grounds. The Defendant in this proceeding, Causeway Inn South, Inc. (CIS) owns a hotel facility located on the Courtney Campbell Causeway in Tampa, Fla. In 1979, CIS and the Debtor, Bahia Resorts, entered into a 15 year lease agreement with an option to purchase, which provided for a base rent of $10,000 per month, cost of living increases beginning in March, 1983, and the payment of all taxes by the lessee. In November of 1983, CIS commenced a state court eviction action against Bahia Resorts, alleging that Bahia had defaulted in its obligations under the lease, specifically in its obligation to pay rent. In February of 1984, shortly before the scheduled eviction trial, Bahia filed its Chapter 11 petition in this Court. During the course of the stay litigation in *310which CIS sought relief in order to proceed in its eviction action against Bahia, this Court determined that the Debtor had, in fact, defaulted under the lease in November of 1983, and that the lease was effectively terminated pre-petition. Matter of Bahia Resorts, Inc., 46 B.R. 44 (M.D.Fla.1985). This adversary proceeding ensued.
The Debtor’s argument in support of the equitable reinstatement of this lease is based on the premise that the law frowns on forfeitures, and that to deny the Debtor reinstatement after its substantial investment in the property would result in an inequitable windfall for CIS. Bahia asserts that upon taking possession of the premises, Bahia undertook a series of improvements to the property, including installing a telephone system and televisions, remodeling the lobby, meeting rooms, and several guest rooms, making pool improvements, and investing in repairs and maintenance. The Debtor urges that the cost of its improvements, repairs, and maintenance exceeds $794,000, and that the condition of the premises at the time of trial was significantly better than its condition at the time the Debtor assumed the lease.
CIS conceded that the Debtor expended substantial funds on the property, but proffered that these funds went for cosmetic changes and for correction of maintenance problems and did not constitute a permanent benefit to the property. The testimony of Mr. Larry Kleek, a certified public accountant and expert in hotel development, was that the majority of the improvements made by the Debtor had a limited useful life, and that the telephone system and televisions, which constituted about twenty-five percent of the Debtor’s total investment, were already obsolete. In addition, Mr. Kleek testified that interior improvements, specifically the carpeting and the dining room remodeling were also approaching the end of the maximum useful life.
Additional expert testimony of Thomas Hubbard, a personal property appraiser, revealed that the furniture and the facility, including newly acquired used furniture and the kitchen and dining equipment, had a minimal value and had been neglected and abused. His opinion of the property after he inspected it in November of 1985 was that the hotel was run down and in disrepair, and that the kitchen was virtually uninhabitable.
It is clear from this testimony that although the Debtor expended a substantial amount of money during its possession of the property, the investments were not of the sort which would greatly increase the value of the property or provide the Defendant CIS with an inequitable windfall of improvements. While it is also true that the law, and in particularly this Court, abhors forfeiture, in these circumstances, where the Debtor has failed to establish that it has, in fact, permanently improved the property, there is very little, if anything, the Debtor has forfeited in the loss of this lease. In short, the proof presented falls short of the degree and quality of evidence that would warrant reinstatement. In as much as this Court is satisfied that there is insufficient basis to reinstate the lease, the evidence presented by the Debtor as to its ability to perform upon reinstatement need not be examined.
A separate final judgment will be entered in accordance with the foregoing. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490286/ | OPINION
EMIL F. GOLDHABER, Chief Judge:
The primary inquiry in the instant case is whether in Pennsylvania a mortgagee making payments under a future advance clause has priority over an alleged lienor whose lien arose after the creation of the mortgage but before the payments in question were made. Since we find that the mortgagee was obligated by the terms of the loan to make the payments in issue, we conclude that it has priority.
The facts of this case are as follows:1 In the early part of 1982, the wife-debtor conveyed a parcel of realty in Chester County, Pennsylvania, known as C. Horse Farm, to her adult children for the consideration of $1.00. Both debtors contemporaneously transferred all of their stock in C. Horse Farm, Inc. to their children for an additional $1.00. Shortly thereafter the children conveyed the realty to C. Horse Farm, Inc., for $1.00.
In August of that year, C. Horse Farm, Inc., finalized all pertinent documents to borrow $72,000.00 from the Federal Land Bank of Baltimore (“Federal”), which is the defendant in this action. In exchange for *327the loan, C. Horse Farm, Inc. granted Federal a mortgage in the realty during September of 1982, which was recorded in Chester County, Pennsylvania. For the payment of charges, settlement costs and other sundry expenses, the funds payable to C. Horse Farm, Inc., amounted to $66,-346.48. Under the terms of the loan, Federal was obligated to advance this sum to the mortgagor.
Margaret R. Noone (“Noone”), the plaintiff in the instant action, filed a lis pendens against the property in November of 1982, in the Court of Common Pleas of Chester County. Accompanying the lis pendens was a copy of a complaint filed by Noone in the United States District Court for the Eastern District of Pennsylvania agáinst the debtors, the four children and C. Horse Farm, Inc., which, inter alia, sought to set aside the conveyances of the Horse Farm realty. Between the time of the creation of the loan and the filing of the lis pendens, Federal disbursed $36,349.02 to, or on behalf of, C. Horse Farm, Inc. After the filing of the lis pendens Federal advanced the remaining sum of $29,997.46. Two years later the action commenced in the United States District Court culminated in a judgment setting aside the transfer of the realty from the wife-debtor to her children, and voiding the conveyance of the property from the children to C. Horse Farm, Inc. One year later the debtor filed a petition for reorganization under chapter 11 of the Bankruptcy Code.
Noone filed the instant suit in this court, individually and as co-executrix of the estate of her late husband. In the complaint Noone seeks to obtain the $29,997.46 disbursed under the mortgage after the filing of the lis pendens on the basis that Federal allegedly had knowledge of the lis pendens when it disbursed the funds.
Noone’s theory is as follows: The funds in question were paid under a future clause of the mortgage. The lis pendens, while only an inchoate lien, ripened into a true lien on the entry of the judgment of the United States District Court, which lien had retroactive effect to the date of the filing of the lis pendens. The lien created by voluntary, non-obligatory payments made under a future advance clause of a mortgage is subordinate to a lien created or deemed created after the granting of the mortgage but prior to the payment of funds under the future advance clause. Thus, Noone would have us hold that the lien predicated on the $29,997.46 in payments made after the filing of the lis pen-dens is inferior to Noone’s lien.
Under Pennsylvania law the filing of a lis pendens does not establish an actual lien on the subject property but it does serve to give notice to third persons that any interest they may acquire in the property will be subject to the result of the litigation between the plaintiff and the defendant. Dice v. Bender, 383 Pa. 94, 117 A.2d 725 (1955). In effect, the filing of a lis pendens creates an inchoate lien which ripens into a true lien if the plaintiff prevails in his suit against the defendant. The priority of the lien is given retroactive effect dating from the filing of the lis pen-dens. Id.
A future advance clause in a mortgage is a provision stating that funds advanced by the mortgagee after the creation of the mortgage will be secured by the mortgage. Housing Mortgage Corp. v. Allied Construction, Inc., 374 Pa. 312, 97 A.2d 802 (1953). As stated by the Pennsylvania Supreme Court on this subject:
The law is definitely established that an advance made pursuant to a mortgage to secure future advances which the mortgagee was obligated to make, is subordinate in lien to an encumbrance intervening between the giving of the mortgage and the making of the advance, if the advance was made with actual notice or knowledge of the intervening encumbrance; the lien of an advance under such circumstances dates only from the time it was made and not from the time of the creation of the mortgage. In other words, after notice of the existence of a junior lien, the senior mortgagee will not be protected in making further advances under his mortgage unless he is *328under a binding obligation to make such advances.
Housing Mortgage Corp. v. Allied Construction, Inc., 374 Pa. 312, 321-22, 97 A.2d 802 (1953) (cites omitted). When an encumbrance in a parcel of realty arises after the creation of a mortgage but before the disbursement of funds under a future advance clause, the issue of priority between the mortgagee and the intervening encumbrancer is based on whether the future advances were obligatory. Id.
As applied to the case before us, Noone’s success in the suit in the United States District Court may have accorded her lis pendens the status of a lien having priority as of the filing of the lis pendens.2 The fact that the lien may have a priority as of the filing of the lis pendens the lien is of benefit to Noone only if the future advances under the mortgage were not obligatory. We found, above, that they were obligatory. Hence, Federal’s mortgage has priority over any lien Noone may have under the facts of this case.
We will accordingly enter an order denying Noone all relief sought in her complaint.
. This opinion constitutes the findings of fact and conclusions of law required by Bankruptcy Rule 7052.
. It does not appear that Noone filed the judgment of the District Court with the State Court in Chester County. The point has been mentioned by the parties but not thoroughly briefed. Nonetheless, if the absence of the recordation of the judgment in Chester County affected our decision, we presumably could grant Noone leave to effect the filing while holding the instant action in abeyance. This deficiency does not affect the outcome of our decision. | 01-04-2023 | 11-22-2022 |
https://www.courtlistener.com/api/rest/v3/opinions/8490288/ | FINDINGS OF FACT AND CONCLUSIONS OF LAW WITH RESPECT TO CLAIMS BY INDIVIDUAL EMPLOYEES FOR LABOR PROTECTIVE PROVISIONS
T. GLOVER ROBERTS, Bankruptcy Judge.
The following are facts either stipulated or established by the evidentiary record in this case in previous matters, of which the Court takes notice, and is considered a proper and adequate basis on which to make these “Findings” and “Conclusions”:
FINDINGS OF FACT
1. On August 14, 1981 the Civil Aeronautics Board (“CAB”) approved the acquisition of Continental Air Lines, Inc. by Texas International Airlines, Inc. CAB Order No. 81-10-66. As a condition to its approval of the acquisition, the CAB imposed labor protective provisions (“LPPs”) “to provide for compensatory allowances to employees who may be affected by the proposed acquisition.” Order No. 81-10-66. Section 1 of the LPPs states:
The fundamental scope and purpose of the conditions hereinafter specified are to provide for compensatory allowances to employees who may be affected by the proposed acquisition by Texas International Airlines, Inc. (TI) of Continental Air Lines, Inc. approved by the attached order, and it is the intent that such conditions are to be restricted to those changes in employment due to and resulting from such acquisition. Fluctuations, rises and falls, and changes in volume or character of employment brought about by other causes are not covered by or intended to be covered by these provisions.
The LPPs provided three basic types of compensation for changes in employment “due to and resulting from” the acquisition: (1) a displacement allowance for those employees who received lower compensation; (2) a dismissal allowance for those employees whose jobs were abolished; and (3) relocation expenses for those employees who were forced to move.
2. Pursuant to the CAB’s authorization, Texas International consummated its acquisition of Continental on October 12, 1981. During 1982, Continental and Texas International began to integrate their operations. On October 31, 1982, the two carriers implemented a corporate reorganization and an operational merger under the name “Continental.” The employees, routes, flight schedules, and fleets were combined as one operation. The employees in each class were combined under the representation of single unions. In accordance with the LPPs, many employees who lost their *486jobs or who received reduced wages as a result of the acquisition applied for and received the prescribed LPP benefits.
3. On September 24, 1983, Continental filed a petition for reorganization under Chapter 11 of the United States Bankruptcy Code. Upon filing the bankruptcy petition, Continental temporarily suspended all domestic service, requiring commensurately fewer employees. The active employees worked under “emergency work rules” and were generally paid lower wages and benefits than they had received before the filing of the petition. In response to Continental’s implementation of the emergency work rules and Continental’s motion to reject its pre-petition labor contracts, the Air Line Pilots Association, International (“ALPA”) and the Union of Flight Attendants (“UFA”) called strikes which began October 1, 1983.1 The ALPA strike was terminated on October 31, 1985. The UFA strike was terminated on April 17, 1985 when the union instructed its members to offer unconditionally to return to work.
4. Prior to the termination of any strikes, however, this Court approved, after an extended trial, Continental’s motion to reject its collective bargaining agreements with ALPA (Order of June 19,1984), the IAM (Order of June 26, 1984) and the UFA (Order of December 5, 1984). Each contract rejection is retroactive to September 24, 1983.
5. In the ensuing claims proceedings in this case, a large number of individual employees or former employees of Continental have filed claims for LPPs on the ground that Continental’s bankruptcy was “due to and resulting from” the acquisition of Continental Air Lines, Inc. by Texas International in 1981.
6. As originally filed on April 30, 1985, Debtors’ Motion requested this Court to enter summary judgment in Debtors’ favor on the issue of the applicability of labor protective provisions to changes in wages and working conditions associated with the bankruptcy.
7. On June 3 and 4, 1985, ALPA and UFA filed motions pursuant to 28 U.S.C. § 157(d) seeking to withdraw the reference of this Motion from the Bankruptcy Court on grounds that Debtors’ Motion “required the consideration of federal laws regulating interstate commerce,” i.e., the Railway Labor Act, 45 U.S.C. § 151 et seq., and the Federal Aviation Act, 49 U.S.C. § 1378, and that withdrawal of the reference was therefore mandatory. The unions’ motions remain pending in the District Court.
8. Chronologically, then, on June 3, 1985, ALPA and UFA, joined by the Official Union Labor and Pension Creditors’ Committee, filed a Motion to Stay this Court’s consideration of the present motion pending District Court disposition of the Section 157(d) Motion to Withdraw Reference. After hearing this Court entered an Order filed July 8, 1985, denying that motion, which found, inter alia, as follows:
To interpret Section 157(d) as the unions propose would disrupt the claims procedure so carefully crafted in the Bankruptcy Code, by bifurcating the claims resolution process between the District Court and the Bankruptcy Court. As a practical matter, such a result would be intolerable. Not only would the Bankruptcy Court be abandoning a statutorily-charged responsibility, but it would be thrusting upon the District Court additional litigation in an already overcrowded arena, a scenario that is not only costly and time consuming, but also a ridiculously circuitous route in the bankruptcy case administration process.
Order filed July 8, 1985 at 4-5.
9. Subsequently, on July 16,1985, Debtors filed a Motion To Estimate All Contingent Or Unliquidated Employee Claims For Purposes Of Confirmation Pursuant To Bankruptcy Code Section 502(c) and to Convert Pending Motions For Summary Judgment To Motions To Estimate The Value Of *487Claims. While Debtors’ position denying all liability for such claims had not and has not changed, Debtors’ proposed procedures changed because, according to the Debtors, only the estimation process could produce allowance of claims for Plan purposes in a time frame sufficient to avoid delay in the closing of this case.
10. On June 25,1985, this Court entered an Order granting Debtors’ Motion for Extension of the Exclusivity Period up to September 5, 1985 upon the express condition that no further extensions would be granted and that the Debtors would, in fact, file a proposed Plan of Reorganization on that date. A plan was later filed, along with a disclosure statement; the latter of which has been approved by this Court.
CONCLUSIONS OF LAW
1. The Court is satisfied that it has jurisdiction to resolve on the merits the liability issues presented by the present motion, for the motion does not require direct interpretation or application of the statutory language of the Railway Labor Act or any other federal statute regulating interstate commerce, and therefore § 157(d) of the 28 U.S.G. is deemed inapplicable here. The question here rests squarely in the bankruptcy claims adjudication process.
2. Use of the estimation procedure by this Court will allow the Debtors’ Reorganization Plan to proceed without unnecessary or costly delay to the Debtor or creditor groups who may have reached agreement relative to debt repayment. The estimation procedure can, however, be simplified by resolution of the summary judgment issues now on file by the Court’s review of undisputed facts and facts previously established in the case, and application of the appropriate law.
3. Bankruptcy Courts clearly have jurisdiction to decide all claims against an estate. 28 U.S.C. §§ 1334(a); 157(a), (b)(1), (b)(2)(B). The Bankruptcy Reform Act of 1978 [Significantly expands the jurisdiction of bankruptcy courts and is based on the notion that to protect the positions of both the bankrupt and its creditors, bankruptcy actions should not be subject to unnecessary delay and all claims and issues relevant to such actions should be resolved in one expeditious proceeding.
LPPs Were Not Intended To And Do Not Apply To Bankruptcy-Related Changes In Employment
4. Turning now to the LPP issue, the Court concludes that by their own terms, the LPPs were not designed to ensure employees against any and all economic changes or conditions that in some way adversely affect their employment. As noted above, the LPPs do not cover “[fluctuations, rises and falls, and changes in volume or character of employment” brought about by causes not “due to and resulting from such acquisition.” See supra at 485.
5. In imposing LPPs the CAB consistently held that they were intended to cover only changes in employment which are “fairly attributable to the merger.” Allegheny-Mohawk Merger, 59 CAB 19, 36 (1972). The only changes which the CAB historically considered “fairly attributable to a merger were those which stem from the combination of work forces and consequent reduction in duplicative functions. LPPs were meant to alleviate the particular effects of a merger itself, such as abandonment of duplicative routes, consolidation of facilities, or the unique problems of putting together two work forces, in recognition of the fact that “[i]n merger cases there are inherent problems with duplicative work and the integration of seniority lists ...” Aloha Airlines Control by IASCO, CAB Order 78-6-208, at 15. In contrast, where there is no such concern about duplicative routes and facilities or redundant work forces, LPPs have not been imposed at all. Id. Thus LPPs were never intended “for the purpose of protecting employees against consequences of mere changes in management policy, company organization, or operating methods,” but were designed only to cover changes in employment that flow directly from a merger or acquisition. *488Hughes Tool Co., Acquisition of Air West, 53 CAB 32, 44 (1969). Accord, North Atlantic Route Transfer Case, 12 CAB 124, 130 (1950); Flying Tiger Corp. Reorganization, 54 CAB 699, 703 (1970); Airlift-Slick Employee Integration, 48 CAB 958, 960 (1968); Alaska International Air, Inc., Acquisition of Great Northern Airlines, Inc., CAB Order 80-8-83.
6. Significantly, the CAB consistently refused to impose LPPs on bankrupt carriers. For example, the CAB declined to impose LPPs when it approved a Braniff-PSA agreement which would have permitted the post-bankruptcy Braniff to restructure in a joint venture with PSA. In the face of the objection of Braniff unions to CAB approval without LPPs, the CAB concluded that LPPs might undermine the economic stability of the carriers and further undermine Braniff’s reorganization effort because the Braniff and PSA joint venture might not go forward if LPPs were imposed. Braniff-Pacific Southwest Agreement Exemption, CAB Order 83-2-72. Likewise, the CAB refused to impose LPPs after the bankrupt Universal lost its route authority and another air carrier obtained Universal’s authority and aircraft. Universal-Satum, 60 CAB 951, 953 (1972). Although the Non-Union Labor Committee argues that imposition of LPPs is different from enforcement of LPPs, it has not pointed to one case in which LPPs have been enforced with respect to bankruptcy related changes in employment. In the only context in which the CAB has considered the application of LPPs to changes in employment due to the possible failure of a carrier, i.e. when it has considered the imposition of LPPs, the CAB has held that LPPs do not apply.
7. The Non-Union Labor Committee has argued that LPPs were imposed, and apply here, because of anticipated bargaining difficulties between Continental and the unions. Non-Union Labor Committee brief, filed July 28, 1985, at 7-10. The Court finds this argument unpersuasive. First, this Court has already held that Continental “made considerable and reasonable effort to reach agreement with the unions involved ... for voluntary modification of their respective bargaining agreements” and “that Continental has bargained in good faith with respect to those efforts.” Opinion dated August 17, 1984, at 12-13. Second, such an inquiry would involve the Court in second guessing management decisions taken during the collective bargaining process — “If only Continental had offered x instead of y, then maybe the unions would have agreed.” This type of speculation is prohibited by the LPPs themselves, which are not intended to protect employees from the consequences of “change in management policy, company organization or operating methods.” Hughes Tool Co., Acquisition of Air West, 53 C.A.B. 32, 44 (1969). The Court should not, and under the LPPs may not, speculate as to whether the Continental bankruptcy would have occurred if different parties had been involved or if the parties had conducted their negotiations differently.
8.The Non-Union Labor Committee also claims that Judge Kane determined that the combined company would require union concessions and it is for this reason that he imposed the LPPs. This argument is both factually and legally incorrect. In fact, both the decisions of Judge Kane and the CAB support the position that LPPs do not apply to the present situation. First, Judge Kane did not impose LPPs in response to arguments made by the unions opposing Texas International’s bid. Prior to the time of his decision, Texas International had voluntarily accepted LPPs. See CAB Order, 81-5-151. Second, the Continental pilots, apparently also recognizing that the traditional LPPs should be adopted to forestall what they imagined would be the consequences of Texas International’s management policies and operating methods. As proposed by the pilots, the LPPs would apply unless Texas International could affirmatively prove that the adverse employment consequences were not “due to and resulting from the acquisition.” Judge Kane refused to make the change and held:
*489The Continental pilots contend that if the acquisition is approved the public interest requires that the LPPs be substantially improved by placing the burden on the carrier to establish that any adverse change in employment is not “due to and resulting from the acquisition.” The burden is presently upon the employees to make the affirmative showing. The Continental pilots are also concerned over the survivability of their existing labor agreement and contend that it will be in the public interest to add an additional section to the LPPs which provides that such agreements shall continue in full force and effect and be binding upon the carrier until such time as any representational disputes are resolved by the National Mediation Board and new working agreements have been negotiated under the Railway Labor Act. The need for either of these conditions has not been shown. The Board has agreed to impose the standard labor protective provisions in this case. However its policy of imposing such provisions only in “extraordinary circumstances.” There has been no such showing in this case.
Recommended Decision of Judge Kane, July 15, 1981, at 58-59 n. 31. In considering the same issue the CAB held:
We will deny the requests that the burden be placed on the company to establish that changes in employment were not caused by the acquisition and that the new carrier be compelled to honor previous collective bargaining agreements. By asking that the Board shift the burden of proof and interfere with the collective bargaining process, the Continental Pilots are seeking to significantly modify the LPPs, which we decline to do.
Order 81-10-66, at 14. It is thus clear that both Judge Kane and the CAB, as well as the parties involved in the acquisition proceeding, recognized that LPPs do not apply to management decisions, including decisions relating to labor negotiations.
9. Finally, the CAB expressly refused to adopt Judge Kane’s findings that “Continental’s financial position after the merger would be weak and its labor relations ... stormy,” and held:
We concur with Judge Kane’s ultimate determination that the labor arguments which have been raised by the opponents in this proceeding are either unproven or not sufficient to warrant disapproval of TI’s proposed acquisition. However, we conclude that some of Judge Kane’s subsidiary findings about TI’s labor policies, intentions and plans go beyond our jurisdiction and we do not adopt them.
Order 81-10-66, at 11. The CAB’s determination that Judge Kane had acted beyond the scope of his jurisdiction in examining TI’s labor policies confirms further that LPPs were not imposed because of any concern about future labor negotiations. In fact, the Board made the following comments on Judge Kane’s findings concerning TI’s labor policies:
Although this proposed acquisition has been characterized by unusual acrimony, any acquisition is likely to create uncertainty and a certain amount of dislocation. Carrier management in the process of its labor negotiations should be able to vigorously pursue its objectives and seek greater employee productivity; otherwise, the process could not accurately be described as bargaining. Indeed, a strong argument can be made that even if Continental were not acquired, it would be under pressure to make these changes anyway in order to remain competitive.
Order 81-10-66, at 12 n. 22.
10. In refusing to adopt Judge Kane’s findings and ALPA’s request that it expand the scope of the LPPs, the CAB indicated that it did not intend the LPPs to apply beyond the traditional, narrow circumstances in which they have always applied, i.e. to protect employees from changes in employment caused by the integration of the routes and work forces or the elimination of duplicative services. The Board was also satisfied that the financial condition of the combined airline would not jeopardize employee interest in a manner *490contrary to the public interest. Order 81-10-66, at 13, n. 24. Had the CAB intended LPPs to apply to changes in employment caused by a bankruptcy or other financial crisis, it presumably would have modified the LPPs to reflect such a drastic departure from prior CAB policy or, at a minimum, it would have accepted the modification proposed by ALPA. Instead, it chose to impose only the standard LPPs, applicable only to employment changes caused by the operational integration of two carriers. Accordingly, the LPPs imposed by the CAB as a condition of Texas International’s acquisition of Continental do not extend beyond the changes caused by the integration of the work forces and the elimination of duplicative services. They were never intended to apply to the economic dislocations resulting from a bankruptcy or other financial crisis.
11. In fact, the Non-Union Labor Committee recognizes that “the CAB has not imposed LPP liabilities on bankrupt carriers.” Non-Union Labor Committee brief, at 9. And a group of 95 non-union employees who have opposed Continental’s motion “agree that LPPs are not intended to apply to bankruptcy-related changes in employment.” Non-Union Employee Creditors’ brief, at 8.
12. The fact that LPPs do not apply to bankruptcy-related changes in employment does not necessarily leave the individual employees and former employees of Continental without a forum for their claims. In Section 43 of the Airline Deregulation Act, 49 U.S.C. § 1552, Congress established a comprehensive employee protection program for the benefit of employees whose jobs are terminated as a direct result of airline deregulation. The act specifically provides for employee protective provisions in the event of an airline bankruptcy caused by deregulation. See Braniff Master Executive Council v. CAB, 693 F.2d 220, 228 (D.C.Cir.1982). It appears that if the individual employees and former employees have any claims for employment disruptions related to Continental’s bankruptcy, they should be brought under that provision. Indeed, ALPA has already recognized this fact by filing a claim for employee protective provisions in which it stated that the “total loss of employment or severe wage reductions suffered by the Continental pilots resulted directly from increased competition caused by airline deregulation.” Application of ALPA for Determination of Qualifying Dislocation, filed October 13, 1983. And the IAM has filed a similar claim in which it stated that, “It cannot be asserted as some have recently done that the financial plight of the airline industry is due to factors other than deregulation, such as high fuel costs, inflation, a severe recession, and the lockout of PAT-CO controllers by the Federal Aviation Administration.” Answer of International Association of Machinists and Aerospace Workers to Application for Determinations of Qualifying Dislocation, filed September 7, 1983, at 8-9. Accordingly, as a matter of law, the LPPs do not apply to the bankruptcy-related changes in employment for which the individual employees and former employees seek compensation in this Court.
This Court Has Already Determined That The Continental Bankruptcy Was Caused By Competitive Forces Resulting From Deregulation, Including the Effects of Continental’s High Labor Costs, and Not By The Acquisition of Continental By Texas International
13. In its order rejecting Continental’s contract with ALPA, this Court held:
These losses [$521.9 million] were caused primarily by Continental’s inability to compete with new entrants coming into the airline industry. The principal reason for its inability to compete was that its labor costs were significantly higher than the new entrants.
Findings of Fact, 116, August 17, 1984. This Court has thus already determined that the primary causes of Continental’s bankruptcy were the effects of deregulation and Continental’s high labor costs.
14. Under the applicable legal standard there is an insufficient nexus between the *491acquisition and the bankruptcy to trigger any LPP benefits. That legal standard has recently been clarified by the CAB, and affirmed by the Eleventh Circuit, in Pan Am-Acquisition of, Control of and Merger with National Airlines, CAB Order 83-5-99, affirmed sub nom. Wallace v. CAB, 755 F.2d 861 (11th Cir.1985). In reversing an arbitrator’s award of LPPs in that case, the CAB held:
Even if the record contained some support for his citation of Pan Am’s post-merger problems, he himself recognized that Pan Am’s problems had several other causes as well, such as escalating fuel prices and competition from new entrants
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The LPPs do not require a carrier to pay a dismissal allowance where the merger is only one of several factors creating the loss.
Order 83-5-99, at 14-15. Thus, under the applicable CAB precedent it is not enough that the acquisition is simply “a cause” of the bankruptcy; it must be “a sufficiently important cause to bring the LPPs into play.” Id. at 13. As the Non-Union Labor Committee notes, the “merger and acquisition” must be “one of the materially causative factors bringing about the dismissal, displacement or dislocation of employees.” Non-Union Labor Committee memorandum, at 11.
15. This Court has already determined that the principal cause of the bankruptcy was caused by Continental’s inability to compete with other airlines because of its high labor costs. These are the “material causative factors” of the bankruptcy. Because of these prior determinations it is clear that, under the applicable legal standard, there cannot be a legally sufficient nexus between the acquisition and the bankruptcy to permit the award of any LPPs. Even if the acquisition were somehow related to the bankruptcy, it is at best “only one of several factors creating the loss,” and therefore the “LPPs do not require a carrier to pay a dismissal allowance.” Pan Am, supra, at 15. Accordingly, the individual employees and former employees of Continental are not entitled to LPPs as a result of Continental’s bankruptcy.2
16. In opposition to Continental’s motion, and in support of their own motion for summary judgment, the group of 95 nonunion employees has filed four affidavits. Considered in their most favorable light, these affidavits state nothing more than that cost reduction measures followed the merger. This is not a material-fact, since the imposition of cost reduction measures following the merger does not address the causes of the bankruptcy. As the CAB noted in its order approving the acquisition:
Indeed, a strong argument can be made that even if Continental were not acquired, it would be under pressure to make these changes anyway in order to remain competitive. The record shows that Continental as a part of its effort to restructure its operations has recently undergone a period of retrenchment during which it has sold off a portion of its DC-10 fleet, substantially cut back its operations and laid off ten percent of its labor force.
Order 81-20-66, at 12 n. 22. These affidavits therefore do not contradict or even relate to this Court’s prior determination that the bankruptcy was caused by the effects of deregulation. They neither support the non-union employees’ motion for summary judgment nor raise any issues of material fact in opposition to Continental’s motion for summary judgment.
*492CONCLUSION
1. For all of the reasons set forth above, the Court finds that Debtors’ motion for summary judgment disallowing the labor protective provision claims of individual employees and former employees of Continental who contend that the changes in employment associated with the Continental bankruptcy were “due to and resulting from” the acquisition of Continental by Texas International in 1981 should be granted, or those claims should be estimated at zero dollars.
2. This Court has previously held, and reaffirms here, that it does not believe that Continental’s motion for partial summary judgment presents issues whose resolution requires the consideration of federal laws regulating ’ activities affecting interstate commerce within the meaning of 28 U.S.C. § 157(d). Although Continental’s objections to the individual claims at issue herein can in some respects be said to arise out of federal labor law, the resolution of Continental’s motion has not required the interpretation of any federal statute or the balancing of competing federal policies. Recognizing, however, that the unions have filed motions to withdraw the reference of Continental’s motion for the Bankruptcy Court, this Court in the interest of efficiency and economy to the Court as well as the parties hereby rules in the alternative that the value of the individual claims for labor protective provision payments on the ground that the changes in employment associated with the Continental bankruptcy were “due to and resulting from” the parties hereby rules in the alternative that the value of the individual claims for labor protective provision payments on the ground that the changes in employment associated with the Continental bankruptcy were “due to and resulting from” the merger is estimated pursuant to 11 U.S.C. § 502(c) to be zero.
These Findings of Fact and Conclusions of Law are hereby incorporated in and made a part hereof by reference the Order entered by this Court adjudicating this issue.
. The International Association of Machinists and Aerospace Workers ("IAM") had been on strike since August 13, 1983.
. ALPA and the Union Labor Committee have argued that a "but for” or "quasi but for” test applies. ALPA brief, at 6; Union Labor Committee brief, filed July 28, 1985, at 13-14. Under that standard Continental is also clearly entitled to summary judgment, since the employees would then have to show that but for the merger the Continental bankruptcy would not have occurred. In light of the Court's finding that the bankruptcy was caused by the effects of deregulation, it is impossible to say that the bankruptcy, and resulting changes in employment, would not have occurred “but for” the merger. | 01-04-2023 | 11-22-2022 |
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