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 Nebraska
State Bar Association NE Law Express
for December 15,
2006
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Cases affecting
the following practice areas are summarized in today's NE Law Express:
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| Case
Summaries |
| Attorney
Discipline, Voluntary Surrender of License |
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In this attorney
discipline action, the Nebraska Supreme Court accepts the voluntary
surrender of a lawyer’s license and disbars him.
State
ex rel. Counsel for Dis. v. Charest, 272 Neb. 755 (2006)
Supreme
Court Headnotes
None
Date Filed
and Case No.: December 15, 2006. No. S-06-1028.
Internet
Address: http://www.court.state.ne.us/opinions/2006/december/dec15/s06-1028.htm
Court Appealed
From: Original action.
Attorneys
for the Appeal: State of Nebraska ex rel. Counsel for Discipline
of the Nebraska Supreme Court, relator. Stephen G. Charest, respondent.
Justices:
Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack,
and Miller-Lerman, JJ.
Authored
By: Per Curiam.
Summary:
Stephen G. Charest was admitted to the practice of law in the State
of Nebraska on 09/04/98. On 09/25/06, Charest filed with the Nebraska
Supreme Court a voluntary surrender of license, voluntarily surrendering
his license to practice law in the State of Nebraska. In his voluntary
surrender of license, Charest stated that he is "currently
under investigation by the Office of the Counsel for Discipline
as a result of a grievance received from a former client."
Charest further stated that the allegations in the grievance, if
proved to be true, would constitute a violation of Charest's oath
of office as an attorney, Neb. Rev. Stat. § 7-104 (Reissue
1997), and of Neb. Ct. R. of Prof. Cond. 8.4 (rev. 2005). The factual
basis for the voluntary surrender was not stated. On 10/12/06, the
Court entered on order directing the Counsel for Discipline of the
Nebraska Supreme Court (relator) to provide the court with the factual
basis for the voluntary surrender and further providing an opportunity
for Charest to respond thereto. Relator filed a "Factual Basis
in Support of Voluntary Surrender" on October 23. Charest did
not file a pleading in response.
Relator's pleading
stated, in summary, that Charest was retained by a client for the
purpose of filing a divorce action against her husband, but that
Charest admitted during the course of the investigation that he
had failed to file a case on her behalf. Further, at some point,
the client inquired about the status of her case, and Charest provided
to her a document purporting to be a court order (Order) in her
case. The document was entitled "Order for Default Hearing"
and was purportedly signed by a judge of the district court for
Lancaster County in the client's case. Although the plaintiff's
name on the Order is that of Charest's client, the case number on
the Order was assigned to another case, and no actual order involving
the client was ever entered. The Order given to the client was prepared
by Charest.
In his voluntary
surrender, Charest stated that he knowingly did not contest the
truth of the allegations made against him by his former client.
In addition to surrendering his license, Charest voluntarily consented
to the entry of an order of disbarment and waived his right to notice,
appearance, and hearing prior to the entry of the order of disbarment.
Pursuant to Neb. Ct. R. of Discipline 15 (rev. 2001) the Court found
that Charest has voluntarily surrendered his license to practice
law and knowingly does not contest the truth of the allegations
made against him in the grievance filed by his former client. Further,
Charest has waived all proceedings against him in connection therewith.
The Court further found that Charest has consented to the entry
of an order of disbarment, accepted his surrender of his license
to practice law, found that Charest should be disbarred, and hereby
ordered him disbarred from the practice of law in the State of Nebraska,
effective immediately. JUDGMENT OF DISBARMENT.
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| Claims,
Loss of Consortium, Personal Legal Claim
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The Nebraska
Supreme Court here determines that damages for a loss of consortium
is a personal legal claim separate and distinct from those claims
of the injured spouse.
Simms
v. Vicorp Restaurants, 272 Neb. 744 (2006)
Supreme
Court Headnotes
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.
Damages:
- [Marriage:]
(Words and Phrases.) Damages for loss of consortium represent
compensation for a spouse who has been deprived of rights to which
he or she is entitled because of the marriage relationship, namely,
the other spouse's affection, companionship, comfort, and assistance
and particularly his or her conjugal society.
Claims:
- [Marriage.]
Although a loss of consortium claim derives from the harm suffered
by the injured spouse, it remains a personal legal claim which is
separate and distinct from those claims belonging to the injured
spouse.
Date Filed
and Case No.: December 15, 2006. No. S-05-827.
Internet
Address: http://www.court.state.ne.us/opinions/2006/december/dec15/s05-827.htm
Court Appealed
From: District Court for Lancaster County, John A. Colborn,
Judge, on appeal thereto from the County Court for Lancaster County,
James L. Foster, Judge.
Attorneys
for the Appeal: Christopher M. Ferdico for Vicorp Restaurants,
Inc., appellant. Jamie Gaylene Scholz for Gary Simms, appellee.
Justices:
Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman,
JJ.
Not Participating:
Heavican, C.J.
Authored
By: McCormack, J.
Summary:
Gary Simms' wife, Dianna Simms, was injured as a result of a slip-and-fall
accident on 12/20/00, at a Village Inn restaurant owned by Vicorp
Restaurants, Inc. (Vicorp). Dianna settled her personal injury claim
with Vicorp on 04/05/04 and signed a document captioned "Release
of All Claims." Simms was aware of Dianna's settlement and
her release of claims, but did not sign or otherwise join in the
release. Simms did not assign his loss of consortium claim to Dianna
and did not release his separate claim. After Dianna signed her
release, Simms brought the present claim for loss of consortium
against Vicorp. Vicorp filed a motion for summary judgment, which
was granted by the county court. Simms appealed the county court's
decision, and the district court reversed. In its order, the district
court determined that Simms' claim was not barred as a result of
the settlement and release of Dianna's claim. Vicorp appealed the
decision of the district court.
The Nebraska
Supreme Court wrote that the question presented by this appeal is
whether a husband's loss of consortium claim is barred when the
injured wife signs her individual release and settles with the tort-feasor.
In the appeal, Vicorp argued that Dianna's release bars Simms' claim
for loss of consortium.
Vicorp relied
on Johnston v. State, 219 Neb. 457, 364 N.W.2d 1 (1985),
wherein it was held in a workers' compensation case that the spouse
of an injured employee could not maintain an independent cause of
action for loss of consortium. In this case, Dianna had an alleged
cause of action against Vicorp for injuries sustained in her fall
and, unlike the injured spouse in Johnston, was not prohibited
from bringing that claim in the district court. Under the general
rule, Simms could ordinarily bring a claim for loss of consortium
in the district court. The question in this case, however, is, Does
Dianna's release of liability change the general rule?
As the Court
had not previously considered whether a spouse may maintain a loss
of consortium claim against a defendant when the injured spouse
has released his or her claim, it noted that courts in other jurisdictions
have had occasion to do so and have generally held that a spouse
may maintain a loss of consortium claim. The Court has described
damages for loss of consortium as representing compensation for
a spouse who has been deprived of rights to which he or she is entitled
because of the marriage relationship, “namely, the other spouse's
affection, companionship, comfort, and assistance and particularly
his or her conjugal society.” Although a loss of consortium
claim derives from the harm suffered by the injured spouse, it remains
a personal legal claim which is separate and distinct from those
claims belonging to the injured spouse.
In this case,
Dianna entered into a settlement with Vicorp for injuries she sustained
as a result of her fall. Her settlement and subsequent release were
executed only by her. There is no evidence in the record that Dianna's
release was a release of the claims of her husband, Simms, arising
out of her injury or that she had authority to release such claims.
“We find, therefore, that Dianna's release does not bar Simms'
independent claim for loss of consortium” ruled the Court.
AFFIRMED.
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| Post
Conviction Relief, Ineffectiveness of Counsel, Appeal and Error
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Here the Nebraska
Supreme Court affirms a trial courts dismissal of a petition for
post conviction relief based on ineffective assistance of counsel.
State
v. Barnes, 272 Neb. 749 (2006)
Supreme
Court Headnotes
Postconviction:
- [Appeal
and Error.] On appeal from a proceeding for postconviction relief,
the trial court's findings of fact will be upheld unless such findings
are clearly erroneous.
- [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.
- [Effectiveness
of Counsel:] (Proof: Appeal and Error.) In order to establish
a right to postconviction relief based on a claim of ineffective
assistance of counsel, the defendant has the burden first to show
that counsel's performance was deficient; that is, counsel's performance
did not equal that of a lawyer with ordinary training and skill
in criminal law in the area. Next, the defendant must show that
counsel's deficient performance prejudiced the defense in his or
her case. The two prongs of this test, deficient performance and
prejudice, may be addressed in either order. (Presumptions: Appeal
and Error.) After a trial, conviction, and sentencing, if counsel
deficiently fails to file or perfect an appeal after being so directed
by the criminal defendant, prejudice will be presumed and counsel
will be deemed ineffective, thus entitling the defendant to postconviction
relief.
- [Pleas:]
(Waiver: Effectiveness of Counsel.) Normally, a voluntary guilty
plea waives all defenses to a criminal charge. However, in a postconviction
action brought by a defendant convicted because of a guilty plea,
a court will consider an allegation that the plea was the result
of ineffective assistance of counsel.
- [Constitutional
Law.] Postconviction relief is a very narrow category of relief,
available only to remedy prejudicial constitutional violations.
Convictions:
- [Effectiveness
of Counsel:] (Pleas: Proof.) When a conviction is based upon
a guilty plea, the prejudice requirement for an ineffective assistance
of counsel claim is satisfied if the defendant shows a reasonable
probability that but for the errors of counsel, the defendant would
have insisted on going to trial rather than pleading guilty.
Date Filed
and Case No.: December 15, 2006. No. S-06-351.
Internet
Address: http://www.court.state.ne.us/opinions/2006/december/dec15/s06-351.htm
Court Appealed
From: District Court for Pierce County: Patrick G. Rogers, Judge.
Attorneys
for the Appeal: Ted M. Lohrberg for Richard C. Barnes, appellant.
Jon Bruning and George R. Love for State of Nebraska, appellee.
Justices:
Heavican, C.J., Wright, Connolly, Stephan, McCormack, and Miller-Lerman,
JJ., and Sievers, Judge.
Not Participating:
Gerrard, J.
Authored
By: Stephan, J.
Summary:
On 03/08/94, Richard C. Barnes pled guilty to one count of first
degree murder and one count of use of a weapon to commit a felony.
Pursuant to a plea agreement, the State did not offer evidence of
aggravating circumstances at sentencing, and Barnes was sentenced
to life imprisonment on the murder conviction. On the same date,
Barnes was sentenced to a term of no less than 6 2/3 years' imprisonment
and no more than 20 years' imprisonment on the use of a weapon conviction.
The district court did not give Barnes credit for time served. No
direct appeal was filed.
Barnes filed
an amended petition seeking postconviction relief on 11/10/04 alleging
that he received ineffective assistance of counsel prior to the
time he entered his plea because his counsel failed to secure a
psychological examination of him and failed to timely file a notice
of intent to use the insanity defense. Barnes also alleged that
his counsel was ineffective because counsel failed to file a direct
appeal after Barnes requested that he do so. Finally, Barnes alleged
that he was denied "fundamental due process [and] equal protection
of the law" because the sentencing court failed to give him
credit for time served against his sentence on the use of a weapon
conviction. After conducting an evidentiary hearing, the district
court denied postconviction relief. Barnes filed appealed and the
Nebraska Supreme Court moved the case to their docket
On appeal, Barnes'
primary argument was that his trial counsel was ineffective. Barnes
alleged that his trial counsel failed to file a direct appeal after
Barnes requested that he do so. In his deposition received at the
postconviction hearing, Barnes testified that after sentencing,
he discussed filing an appeal with his attorney. According to Barnes,
his attorney advised him that an appeal was not likely to be successful,
but Barnes informed the attorney that "I would like to do it
anyway." Trial counsel's deposition was also admitted as an
exhibit at the postconviction hearing. Trial counsel testified that
he discussed the merits of an appeal with Barnes both before the
plea was entered and after the sentence was imposed. Counsel testified
that Barnes did not ask him to file an appeal. “The district
court determined that Barnes failed to establish that he directed
his attorney to file an appeal” wrote the Court. “We find
no clear error in this factual finding and affirm the district court's
denial of postconviction relief on this ground.”
Barnes next
alleged that his trial counsel was ineffective because he failed
to obtain a psychological examination of Barnes before the entry
of the guilty plea. The record revealed that a motion for psychological
examination was made, an evidentiary hearing was held and Barnes
presented no evidence in support of his motion, and the State presented
evidence against it. The court denied the motion, finding there
was no evidence to support granting it. Barnes' trial counsel testified
at the postconviction hearing that he discussed the issue of competency
during his initial meetings with Barnes. Counsel did not pursue
the issue, however, because he felt that Barnes understood the nature
of the proceedings and knew the seriousness of what was taking place.
Counsel specifically testified that in his opinion, insanity was
not a viable defense for Barnes, and that he never had any sense
that there was an issue about Barnes' competency. However, as the
date for trial approached, Barnes decided that he wanted to pursue
an insanity defense so the motions were filed . The notice was filed
within 60 days of the date of trial and was therefore untimely under
Neb. Rev. Stat. § 29-2203 (Reissue 1995). The Court noted that
there was very little evidence in the record relating to Barnes'
mental health. Nothing in the record indicated that trial counsel
had any reason to believe, or that an investigation would have revealed,
that Barnes' sanity at the time of the offense was seriously in
question. “Barnes has therefore failed to demonstrate that
his trial counsel performed deficiently in failing to procure the
psychological examination” said the Court.
While Barnes
went on to allege that his trial counsel was ineffective because
counsel filed a notice to raise the insanity defense out of time,
the Court ruled that for many of the same reasons articulated relating
to the counsel's failure to secure a psychological examination of
Barnes, “we conclude that this allegation is without merit.”
Finally, Barnes'
postconviction motion alleged that the trial court erred in failing
to give him credit for time served against his sentence on the weapon
conviction. Because the sentencing issue could have been raised
on direct appeal, the Court ruled that it is procedurally barred
in this postconviction action. “The district court did not
err in denying postconviction relief on this ground.” AFFIRMED.
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| Revivor,
Filiation Proceedings
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After this paternity
action was filed by a purported father, prior to the completion
of genetic testing, the petitioner died. The personal representative
for his estate moved to revive the action and the motion was denied.
The primary question presented by this appeal is whether an action
for paternity survives the death of the putative father. The Nebraska
Supreme Court says that it does not.
Bullock
v. J.B., 272 Neb. 738 (2006)
Supreme
Court Headnotes
Judgments:
- [Appeal
and Error.] On a question of law, an appellate court is obligated
to reach a conclusion independent of the determination reached by
the court below.
Actions:
- [Paternity:]
(Death: Abatement, Survival, and Revival.) A paternity action
is personal and does not survive the death of a putative father.
••• Where an action abates and does not survive the
death of a party, the abatement is absolute and the action ceases
to exist.
Constitutional
Law:
- [Statutes:]
(Standing.) Standing to challenge the constitutionality of a
statute under the federal or state Constitution depends upon whether
one is, or is about to be, adversely affected by the language in
question; to establish standing, the contestant must show that as
a consequence of the alleged unconstitutionality, the contestant
is, or is about to be, deprived of a protected right.
Date Filed
and Case No.: December 15, 2006. No. S-05-636.
Internet
Address: http://www.court.state.ne.us/opinions/2006/december/dec15/s05-636.htm
Court Appealed
From: District Court for Douglas County: Thomas A. Otepka, Judge.
Attorneys
for the Appeal: Frank E. Robak, Sr. for Jeffrey Martin Bullock,
appellant. Deborah A. Sanwick for J.B., appellee.
Justices:
Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack, and
Miller-Lerman, JJ.
Authored
By: Heavican, C.J.
Summary:
On 03/29/04, Jeffrey Martin Bullock filed a petition to establish
paternity alleging that he was the biological father of a child
born to J.B. on 05/20/03. In her answer, J.B. denied that Jeffrey
was the child's natural father and, in her cross-petition, alleged
that she did not know who the child's father was as she had been
sexually active with both Jeffrey and another man at the time the
child was conceived. On 04/28/04, J.B. filed a motion for genetic
testing which a hearing was held on May 4. Jeffrey committed suicide
on May 13 and an order for genetic testing had been entered at that
time. On 05/28/04, J.B. moved the district court to order the Douglas
County coroner to transmit Jeffrey's genetic samples to a laboratory
of J.B.'s choosing to obtain a genetic paternity test. In her motion,
J.B. alleged that the Social Security Administration required that
paternity be established in order for the child to be eligible for
benefits. That motion was granted on June 18.
On 02/09/05,
Jeffrey's action against J.B. was dismissed pursuant to an order
of dismissal on progression. On March 25, Janet Bullock, Jeffrey's
mother and the personal representative of his estate, filed a motion
for revivor on behalf of the estate. The Nebraska Supreme Court
said it appeared that Janet’s motivation in seeking to revive
the action is her belief that a paternity determination is necessary
in order for her to be awarded grandparent visitation. On March
31, J.B. moved to dismiss with prejudice, alleging that Jeffrey
was deceased and that the paternity action did not survive his death.
On April 5, Janet filed an application to reinstate Jeffrey's action,
which the court sustained on April 14. On April 25, the district
court issued an order concluding the paternity action did not survive
Jeffrey's death, and accordingly, the court denied Janet's motion
for revivor. Janet appealed arguing that the district court erred
in (1) denying her motion for revivor, (2) failing to find Neb.
Rev. Stat. § 43-1802(1)(c) (Reissue 2004) unconstitutional,
and (3) denying her motion to compel.
Janet's primary
argument on appeal is that Jeffrey's paternity action survived his
death. The issue of whether such an action survives the death of
a putative father is one of first impression in Nebraska. Reviewing
case law from other jurisdictions, the Court concluded that a paternity
action is personal and does not survive the death of a putative
father is consistent with the rule in most jurisdictions. “We
therefore conclude that Jeffrey's paternity action was personal
to him and did not survive his death. As such, the action could
not be revived.”
In addition,
Janet argued that J.B.'s action in requesting genetic testing after
Jeffrey's death waived J.B.'s right to argue that the paternity
action did not survive Jeffrey's death. Whether abatement of an
action can be waived is also a question of first impression in Nebraska.
Again looking to other jurisdictions. The Court concluded that because
Jeffrey's action abated at his death and did not survive, the action
abated absolutely and ceased to exist. Jaime's action in requesting
genetic testing from the district court did not act to waive that
abatement. “As such, the district court did not err in denying
Janet's motion for revivor.”
Janet next argued
that the district court erred in not finding § 43-1802(1)(c),
dealing with grandparent visitation, unconstitutional contending
she will be denied grandparent visitation if she is not permitted
to revive Jeffrey's paternity action and get a paternity determination.
Given the absence of a grandparent visitation claim, Janet lacked
standing to challenge the constitutionality of § 43-1802(1)(c)
in this case. Here, Janet could not show that she has been or is
about to be deprived of a protected right under § 43-1802(c).
Finally, Janet
argued that the district court erred in denying her motion to compel
release of the results of the genetic testing. The Court concluded
that the district court was correct in finding the paternity action
abated upon Jeffrey's death and did not survive and that thus, the
court did not err in denying Janet's motion for revivor. “Given
this determination, following Jeffrey's death, there ceased to be
an action and thus the motion to compel was a nullity.” AFFIRMED.
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