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The NE Law Express is available to members of the Nebraska State Bar at no additional charge.

Nebraska State Bar Association NE Law Express for April 18, 2008

Use our Short Cuts to link to the area of today's
NE Law Express that interests you.

Cases affecting the following practice areas are summarized in today's NE Law Express:

Negligence, Wrongful Death, Summary Judgment
Nunc Pro Tunc Orders, Timing
Post Conviction, Ineffective Assistance of Appellate Counsel, Appeal and Error
Post Conviction, Ineffective Counsel of Trial Counsel, Appeal and Error
Post Conviction, Procedural Bar, Direct Appeal
Statutes, Consumer Protection Act

Added April 30, 2008

Actions, Workers' Compensation, Exclusive Remedy
Dissolution Decree, Modification
Motor Vehicle Homicide, Underlying Violation
Observing an Obviously Confused or Incapacitated Person upon a Roadway
Postconviction Relief, Findings of Fact
Postconviction Refief, Hearing
Property, Landowner, Liability
QDRO, Military Retirement

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May 2, 2008 - NCLE Fiduciary Duties
More Information and to Register
May 6, 2008 - NCLE Presents Cross Examination Expert Robert Musante, Attend Morning Session or Afternoon Session or Both
Morning: Great! Adverse Depositions: Principles and Principal Techniques
Afternoon: Cross Examination: Attacking "I Don't Know"
Information and Registration Form
Online Registration
May 6, 2008 - NCLE Teleseminar: Tax Planning for Educational Expenses
May 8, 2008 - NCLE Teleseminar: Ethics of Using Electronic Evidence (Live Replay)
May 12, 2008 - NCLE Teleseminar: Buying and Selling Distressed Small Businesses, Part 1
May 13, 2008 - NCLE Teleseminar: Buying and Selling Distressed Small Business, Part 2
May 15, 2008 - NCLE Teleseminar: Real Estate: A Primer on Insurance (Live Replay)

For more information about LUNCH & LEARN SEMINARS, TELESEMINARS and LIVE WEBCASTS and to register contact Kathryn Bellman.

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Case Summaries

Negligence, Wrongful Death, Summary Judgment

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The Nebraska Supreme Court here reverses and remands a trial court’s grant of summary judgment in regards to a negligence and wrongful death suit which were based upon a drowning.

Caguioa v. Fellman, 275 Neb. 455 (2008)

Supreme Court Headnotes

Summary Judgment:

1. Summary judgment is proper when the pleadings and evidence admitted at the hearing disclose that there is no genuine issue as to any material fact or as to the ultimate inferences that may be drawn from those facts and that the moving party is entitled to judgment as a matter of law.

2. Appeal and Error. In reviewing a summary judgment, an appellate court views the evidence in a light most favorable to the party against whom the judgment is granted and gives such party the benefit of all reasonable inferences deducible from the evidence.

Trial:

1. Evidence: Appeal and Error. In determining the admissibility of evidence, the exercise of judicial discretion is implicit in determinations of relevancy and admissibility, and the trial court’s decision will not be reversed absent an abuse of discretion.

Negligence:

1. Words and Phrases. Ordinary negligence is defined as the doing of something that a reasonably careful person would not do under similar circumstances or the failing to do something that a reasonably careful person would do under similar circumstances.

2. Damages: Proximate Cause. In order to prevail in a negligence action, a plaintiff must establish the defendant’s duty to protect the plaintiff from injury, a failure to discharge that duty, and damages proximately caused by the failure to discharge that duty.

Rules of Evidence:

1. Expert Witnesses. Four preliminary 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 Neb. Evid. R. 702, Neb. Rev. Stat. § 27-702 (Reissue 1995); (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. Evid. R. 403, Neb. Rev. Stat. § 27-403 (Reissue 1995), because its probative value is substantially outweighed by the danger of unfair prejudice or other considerations.

Date Filed and Case No.: April 18, 2008. No. S-06-1055.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/april/apr18/s06-1055.pdf

Court Appealed From: District Court for Douglas County: J Russell Derr, Judge.

Attorneys for the Appeal: Joseph B. Muller and Ronald J. Palagi for Dorothy Caguioa, Individually and as Special Administrator of the Estate of Nicosio Caguioa , Deceased, and as Guardian of Jade Caguioa , a Minor, appellant. Dan H. Ketcham and Meredith J. Morgans for Thomas Fellman and Martin Meyers, doing business as Fellman Meyers Boat Ventures, appellees.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, and McCormack, JJ.

Not Participating: Miller-Lerman, J.

Authored By: Wright, J.

Summary: Thomas Fellman and Martin Meyers (collectively the defendants) invited Nicosio Caguioa (Caguioa) to Lake Powell, Utah,$ to spend time on their houseboat. On August 20, 2001, while on the defendants’ houseboat, Caguioa decided to go for a swim and jumped off the houseboat into the water. He was not wearing a lifejacket, nor did he have any flotation device. Meyers, who was steering the houseboat, saw Caguioa swimming in the water immediately after he jumped. After allowing the houseboat to drift the “length of a football field” or more from Caguioa. Meyers then started the houseboat and went back to get Caguioa. When Meyers got within approximately 50 feet of Caguioa, he turned off the engine, and Caguioa started to swim toward the left side of the houseboat. Meyers lost sight of Caguioa but a passenger saw Caguioa approach the side of the houseboat and reach up. However, it was not possible to climb onto the houseboat at that location. As Meyers came down from the helm, he saw Caguioa not more than 10 feet from the right side of the houseboat. Caguioa was looking at Meyers but did not say anything. Caguioa then went under the water, bobbed back up, raised his right arm, and went straight down into the water. Meyers screamed, “Nick’s in trouble.” One passenger jumped into the water without a lifejacket. Another passenger retrieved snorkel gear from the back of the houseboat. Meyers radioed the National Park Service and stated that he had a man overboard. Efforts to rescue Caguioa were unsuccessful, and he drowned in the lake.

His widow, Dorothy Caguioa (Plaintiff), brought suit against the defendants, alleging general acts of negligence and a cause of action based upon 46 U.S.C. app. § 688 (2000) (now codified at 46 U.S.C.A. § 30104 (West 2006)), commonly known as the Jones Act. The Douglas County District Court granted summary judgment in favor of the defendants, and Plaintiff appealed.

Did the trial court err in granting defendants a summary judgment as to their Jones Act claim? Under the Jones Act, the duty is to provide employed seamen with safe and seaworthy conditions. In order for an action to be brought under the Jones Act, the plaintiff must show that he was employed by the defendant as a seaman. Second, the plaintiff must show that his injury occurred during the course of his employment. The parties did not contest this issue, and it is not assigned as error on appeal. Therefore, the trial court’s granting of summary judgment as to the action brought under the Jones Act was affirmed.

Did the trial court err in granting defendants a summary judgment as to their general allegations of wrongful death and negligence? Here, the trial court also found that there were general allegations of wrongful death and negligence in addition to the claim raised under the Jones Act. The defendants argued that even if Plaintiff’s claim was based on general negligence, there was no evidence of negligence on the part of the defendants. The trial court analyzed the cause of action as if it were a claim based on premises liability. In the case at bar, the Court said that the Plaintiff’s claim is not based upon premises liability, and even if it were, the duty owed is that of reasonable care. Here, the trial court found that Caguioa was a guest and voluntarily left the houseboat to swim. There was evidence that Caguioa could swim, that he knew where the ladders and safety equipment were located, and that the houseboat was in good operating condition. Based on these facts, the court concluded there was no evidence in the record to indicate that the defendants were negligent in the operation of the houseboat. It concluded that there was no evidence as to any wanton negligence or designed injury on the part of the defendants. The Court determined that the standard of care applicable here, was the duty of ordinary care.

In the case at bar, the evidence presented on the motion for summary judgment created a genuine issue of material fact as to whether the defendants’ conduct breached their duty of ordinary care. The defendants allowed their houseboat to drift over 100 yards from Caguioa. They knew he did not have a lifejacket or flotation device with him. There was also evidence that the houseboat may have run over Caguioa. Thus, the Court ruled that summary judgment was not proper.

Did the trial court err in excluding the affidavits of Caguioa’s expert witnesses? In this case, the trial court excluded the affidavits of both of Caguioa’s expert witnesses because the resumes and curriculum vitae presented for these witnesses do not indicate that they are experts in the area of determining the negligence of a driver of a recreational boat, they do not indicate how their testimony is relevant, and, they do not indicate how they arrived at their opinions or state the basis for their opinions.

The Court differed, noting that resumes and curricula vitae of Caguioa’s witnesses established that they were qualified as experts in matters involving the operation and use of pleasure boats. Both graduated from the U.S. Coast Guard Academy, and each had extensive experience with boats, including more than 20 years of experience as officers of the U.S. Coast Guard. The affidavits were offered to show the experts’ opinions that the defendants’ conduct was negligent because it did not conform to a standard of ordinary care. The Court found that their affidavits were relevant and were sufficient to establish the foundation for their opinions. The affidavits were not unfairly prejudicial.

Conclusion: The Court affirmed the judgment of the trial court as to Plaintiff’s claim based on the Jones Act. However, for the reasons set forth above, they concluded that the trial court erred in granting the defendants’ motion for summary judgment based on a cause of action for negligence. Therefore, they reversed the judgment as to Plaintiff’s claims based on the alleged negligence of the defendants, and remanded the cause for further proceedings. AFFIRMED IN PART, AND IN PART REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

Nunc Pro Tunc Orders, Timing

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In this case, 13 home mortgagors brought various claims against defendants based on an allegedly deceptive scheme to defraud homeowners out of their homes. The district court found that defendants were liable to all but two of the mortgagors. The court found that one had suffered no damage as a result of defendants' misconduct and that the other’s claims were barred entirely by collateral estoppel. On appeal, the Nebraska Supreme Court upheld the district court's findings regarding the eleven successful plaintiffs, but reversed the district court's determinations as to the other two and remanded the cause regarding them. On remand, the court ruled in favor of both of the two, awarding each damages, attorney fees, and costs. Defendants appealed, and for reasons set forth in the opinion, the Supreme Court affirmed.

Eicher v. Mid America Fin. Invest. Corr, 275 Neb. 462 (2008)

Supreme Court Headnotes

Trial:

1. Witnesses. In a bench trial of an action at law, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony.

Witnesses:

1. Evidence: Appeal and Error. An appellate court will not reevaluate the credibility of witnesses or reweigh testimony but will review the evidence for clear error.

Judgments:

1. Appeal and Error. The trial court’s factual findings in a bench trial of an action at law have the effect of a jury verdict and will not be set aside unless clearly erroneous. ••• In reviewing a judgment awarded in 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, who is entitled to every reasonable inference deducible from the evidence.

2. Statutes: Appeal and Error. When an appeal calls for statutory interpretation or presents questions of law, an appellate court must reach an independent, correct conclusion irrespective of the determination made by the court below.

3. Time: Words and Phrases. "Submitted for decision” in Neb. Rev. Stat. § 25-2001(3) (Cum. Supp. 2006) refers to the period after the case was submitted at oral argument but before the court’s opinion has issued.

Damages:

1. 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.

2. Proof. Nebraska law only requires a plaintiff to prove his or her damages to a reasonable certainty; it does not require proof beyond all reasonable doubt.

Property:

1. Valuation: Witnesses. A landowner is qualified to testify to the fair market value of his or her own property.

Courts:

1. Judgments: Time. A district court can modify a judgment or order issued in a prior term only if it has specific statutory authority to do so.

a. Appeal and Error. Under Neb. Rev. Stat. § 25-2001(3) (Cum. Supp. 2006), a district court may freely correct clerical errors after notice of appeal has been filed up until the time the parties submit the case at the conclusion of arguments.

Statutes:

1. Time: Words and Phrases: Appeal and Error. “Pendency” in Neb. Rev. Stat. § 25-2001(3) (Cum. Supp. 2006) refers to the period of time after notice of appeal has been filed but before the parties have submitted the case at argument.

Consumer Protection.

1. The Consumer Protection Act only applies to unfair or deceptive practices which affect the public interest.

Actions:

1. Fraud: Proof. To set forth a prima facie case of fraudulent misrepresentation, one must show (1) that a representation was made; (2) that the representation was false; (3) that when made, the representation was known to be false or made recklessly without knowledge of its truth and as a positive assertion; (4) that it was made with the intention that it should be relied upon; (5) that the party reasonably did so rely; and (6) that he or she suffered damage as a result.

2. Conspiracy. A civil conspiracy is only actionable if the alleged conspirators actually committed some underlying misconduct.

Contracts:

1. Fraud: The doctrine that the carelessness or negligence of a party in signing a writing estops him or her from afterward disputing the contents of such writing is not applicable in a suit thereon between the original parties thereto when the defense is that such writing, by reason of fraud, does not embrace the contract actually made.

a. Presumptions. The general rule that an individual’s knowledge of a contract’s contents is presumed once the individual signs it applies only in the absence of fraud.

Conspiracy:

1. Words and Phrases. A civil conspiracy is a combination of two or more persons to accomplish by concerted action an unlawful or oppressive object, or a lawful object by unlawful or oppressive means.

2. Corporations: Pleadings. To pursue a claim of civil conspiracy where the allegations involve a conspiracy between the corporation and its corporate employees, the petition must allege that the latter are acting outside the scope of their authority or other than in the normal course of their corporate duties.

Date Filed and Case No.: April 18, 2008. No. S-06-1206.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/april/apr18/s06-1206.pdf

Court Appealed From: District Court for Douglas County: Peter C. Bataillon, Judge.

Attorneys for the Appeal: David A. Domina and Elias T. Xenos for Mid America Financial Investment Corporation et al., appellants. Mark C. Laughlin, Andrea F. Scioli, and Tamara D. Borer for Ivan Eicher and Delores Eicher et al., appellees.

Justices: Heavican, C.J., Wright, Connolly, Gerrard, Stephan, McCormack and Miller-Lerman, J.J.

Authored By: Heavican , C. J.

Summary: In May 2001, William Street and David Welton, along with 11 other home mortgagors (collectively plaintiffs) sued Mid America Financial Investment Corporation (Mid America), Scott Bloemer, and Elaina Hollingshead (collectively defendants) based on an allegedly deceptive scheme to defraud homeowners out of their homes. Using Mid America as their alter ego, Bloemer and Hollingshead would contact homeowners facing imminent foreclosures and offer to help the homeowners by loaning them the money needed to avoid foreclosure. However, under the terms of the forms Bloemer and Hollingshead encouraged the homeowners to sign, Mid America would acquire title to the homes by warranty deed. When the homeowners would fail to make the scheduled payments to Mid America, defendants would evict the homeowners. As a result, the homeowners lost their homes and any equity they had therein.

After a bench trial, the district court found that defendants had engaged in a civil conspiracy to defraud plaintiffs out of their homes and that this conduct violated Nebraska’s Consumer Protection Act (CPA). Accordingly, the district court entered judgments in favor of plaintiffs, but specifically denied relief to Welton and Street finding that Welton suffered no damage as a result of defendants’ misconduct and that Street’s claims were barred entirely by collateral estoppel.

On appeal, the Nebraska Supreme Court affirmed the district court’s judgment regarding plaintiffs’ claims of civil conspiracy and violations of the CPA, Eicher v. Mid America Fin. Invest. Corp., 270 Neb. 370, 702 N.W.2d 792 (2005). However, they reversed the district court’s decision to dismiss Street’s claims and remanded the cause with directions to adjudicate the merits of those claims. The Court also reversed the district court’s finding that Welton did not suffer damages and remanded the cause with directions “to award damages to Welton in an amount which it shall determine from the existing record.”

On remand, the district court found that Welton was entitled to $35,532.40 in damages. The court also awarded Welton attorney fees in the amount of $12,108.20 and cited Neb. Rev. Stat. § 87-303 (Reissue 1999) as the basis for that award. Section 87-303 pertains to Nebraska's Uniform Deceptive Trade Practices Act (UDTPA), yet Welton's judgment was based on the CPA. Regarding Street, the district court found that he, too, was the victim of a civil conspiracy to commit fraudulent misrepresentation as well as violations of the CPA. As with Welton, the court awarded Street $12,108.20 in attorney fees. Once again, the court based the award on § 87-303, a section pertaining to the UDTPA, despite the fact that Street, like Welton, secured relief under the CPA. Defendants appealed.

Did the district court err in calculating the amount of Welton’s damages? Defendants argue that the district court made two errors when calculating Welton’s damages. First, they claim that the district court neglected to credit them with the value of the repairs they made to Welton’s home. Second, defendants claim that the district court erred in identifying the fair market value of Welton’s home at the time of the transaction with Mid America.

The Court said its review of defendants’ first argument is hamstrung by their failure to adequately develop that claim. Rather, the claim was based on a simple assertion which was not accompanied by any cite to the record. “Because both parties contributed to those repairs through money or labor, the district court declined to credit either party with the value of those improvements. Defendants have not pointed to any evidence in the record which would undermine Welton’s testimony or the significance that the district court attached to it. Accordingly, this argument is without merit”

As to the valuation of Welton’s home, the district court drew the valuation figure from Welton’s own testimony. Defendants’ was drawn from the testimony of Bloemer, one of the defendants in this case. The Court noted it has long held that a landowner is qualified to testify to the fair market value of his or her own property. And while testimony of an expert in real estate may sometimes be more reliable regarding the value of property than testimony from a lay witness, that would not be true where the trial court had reason to doubt the expert’s credibility. Here, the district court specifically found that Bloemer was not credible.

Should the district court’s award of attorney fees to Welton stand because the original basis for the award—the UDTPA—was erroneous? Was court’s attempt to change that mistake through an order nunc pro tunc invalid? Defendants point out that a district court’s ability to make subsequent changes to orders after they have been issued diminishes considerably when the term in which the order was issued has ended. A district court’s term coincides with the calendar year. Here, the district court’s order nunc pro tune was issued January 26, 2007, and attempts to correct an error in an order issued September 29, 2006. “Nonetheless,” wrote the Court “defendants mischaracterize the scope of a district court’s authority in this regard.” A district court’s authority to modify prior orders does not end entirely with the conclusion of the term. Rather, what ends at the conclusion of the term is the district court’s virtually unlimited ability to modify orders issued therein. Thereafter, a district court can modify a judgment or order issued in a prior term only if it has specific statutory authority to do so. The various scenarios enumerated in § 25-2001—including § 25-2001(3)—provide such authority.

Even assuming § 25-2001(3) allowed the district court to correct an order issued in the prior term, defendants contend that the § 25-2001(3) does not allow any orders which come after notice of appeal has been filed, unless the district court obtained leave of the appellate court.

The Supreme Court said that under § 25-2001(3), a district court may freely correct clerical errors after notice of appeal has been filed up until the time the parties submit the case at the conclusion of arguments. After that time, the district court must obtain leave of the appellate court to fix a clerical error in a prior order. Because this case had not yet been submitted when the district court attempted to correct the mistake in Welton’s attorney fee award by issuing an order nunc pro tune, the district court did not need leave from this court to issue that order. The Court went on in the opinion to conclude that the reference to the UDTPA in Welton’s attorney fee award was the product of a clerical error and that the court had authority to change it pursuant to § 25-2001(3).

Did the district court err in finding that any misconduct amounted to a violation of the CPA by the defendants? Drawing on language in the CPA, defendants contended that the CPA should not apply here because the transaction involved only Street and the named defendants, not the public at large. Notably, the Court pointed out that defendants made the exact same argument with respect to the other plaintiffs in this case during the first appeal. Although the Court did not elaborate on their rationale at the time, it is clear that they found defendants’ CPA argument unavailing, since they concluded that “plaintiffs are entitled to recover their damages and attorney fees under their alternative theories of fraud and violation of the CPA.” The Court saw no reason to alter that conclusion now.

Did the district court err in neglecting to recognize Street’s failure to prove a case of fraudulent misrepresentation? To set forth a prima facie case of fraudulent misrepresentation, one must show (1) that a representation was made; (2) that the representation was false; (3) that when made, the representation was known to be false or made recklessly without knowledge of its truth and as a positive assertion; (4) that it was made with the intention that it should be relied upon; (5) that the party reasonably did so rely; and (6) that he or she suffered damage as a result.

The Court reviewed each of defendants’ arguments in the opinion and concluded that; The district court did not err in relying on Street’s testimony regarding the existence of false factual statements. Because the district court specifically found that Street was fraudulently induced to sign the sale agreements with Mid America, he is not charged with constructive knowledge of their contents so it is irrelevant whether those agreements clearly identified the transaction as a sale. The evidence presented by defendants does not support the inference that Street knew his transaction with Mid America was a sale and not a loan. By fraudulently inducing Street to convey his home to them, Mid America caused Street to lose his home and as much as $33,828.98 in equity. While it is true that Street did not prove that his home would have earned its full estimated value at the foreclosure sale, such proof is not needed to generate a reasonably certain estimate of his damages.

As with the other plaintiffs in this case, the district court accurately concluded that defendants’ actions amounted to a violation of the CPA. The district court did not err in finding that Street successfully proved a case of fraudulent misrepresentation.

Did the district court err in finding in favor of Street on his allegation of civil conspiracy? A civil conspiracy is a combination of two or more persons to accomplish by concerted action an unlawful or oppressive object, or a lawful object by unlawful or oppressive means. Defendants argue that Street’s civil conspiracy claim was deficient in numerous respects.

First, defendants argued that they cannot be held liable for a civil conspiracy because they did not commit any underlying violations. As set forth above, the Court affirmed the district court’s conclusion that defendants violated the CPA and committed fraudulent misrepresentation. There are, therefore, multiple underlying violations to support a claim of civil conspiracy.

Defendants next argued that the district court erred in failing to recognize that Street did not properly allege a civil conspiracy. The Court ruled that the portion of Street’s pleadings which set forth a claim of civil conspiracy is identical to the pleadings filed by each of the other plaintiffs in this case which, in disposing of defendants’ first appeal, the Court held that such language was “sufficient to set forth a claim of conspiracy among all three defendants.”

Defendants’ final argument regarding Street’s civil conspiracy claim is that the district court erred in finding that Bloemer and Hollingshead acted outside the scope of their corporate duties. During the first appeal, the Court concluded that such evidence “supports the allegation that the individual defendants acted outside any legitimate scope of corporate employment by utilizing the corporate entity as part of a scheme to defraud third parties” and saw no reason to change that conclusion now.

Did the district court err in awarding attorney fees to Street? As noted above in their discussion of Welton’s attorney fee award, the district court had authority to issue its orders nunc pro tune under § 25-2001(3) and did not err in awarding attorney fees to Street.

Conclusion: For the above reasons, the Court concluded that the district court did not err in its findings. AFFIRMED.

Post Conviction, Ineffective Assistance of Appellate Counsel, Appeal and Error

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Here, the Nebraska Supreme Court found that a claim that a post-conviction petitioner received ineffective assistance of trial counsel was procedurally barred because he failed to raise that claim on direct appeal. Moreover, it appears that the petitioner was not prejudiced by any of trial counsel’s allegedly deficient actions at the trial stage which forecloses the possibility that petitioner’s appellate counsel, was ineffective for failing to bring an ineffective assistance of trial counsel claim on direct appeal. Further, Petitioner’s claim that his defense was prejudiced by the prosecution’s failure to disclose several police reports is also meritless as petitioner failed to provide any support for his belief that the prosecution had material evidence which it withheld from him. He also failed to show that having those police reports at the trial stage would have led to other material exculpatory evidence. Finally, the Court found there was no merit to petitioner’s claim that the district court abused its discretion when it denied his request for any evidence the police may have recovered which may have been relevant to petioner’s claim that he was the victim of prosecutorial misconduct, but the result of his trial would not change even if he was able to obtain and present the evidence he sought from the prosecution.

State v. Jackson, 275 Neb. 434 (2008)

Supreme Court Headnotes

Postconviction:

1. Whether a claim raised in a postconviction proceeding is proce-durally barred is a question of law.

2. Proof: Appeal and Error. A defendant requesting postconvic-tion relief must establish the basis for such relief, and the district court’s findings will not be disturbed unless they are clearly erroneous.

3. Appeal and Error. A party cannot raise an issue in a postconviction motion if he or she could have raised that same issue on direct appeal. ••• The Nebraska Postconviction Act looks unfavorably on any attempts to rehash issues at the postconviction stage which were—or could have been—raised and disposed of at trial or on direct appeal.

4. Effectiveness of Counsel: Appeal and Error. A motion for postconviction relief asserting ineffective assistance of trial counsel is procedur-ally barred when (1) the defendant was represented by a different attorney on direct appeal than at trial, (2) an ineffective assistance of trial counsel claim was not brought on direct appeal, and (3) the alleged deficiencies in trial counsel’s performance were known to the defendant or apparent from the record.

5. Evidence. Prisoners cannot seek discovery at the postconviction stage if the requested evidence could have been obtained at trial.

Effectiveness of Counsel.

1. A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact.

2. Appeal and Error. An appellate court reviews ineffective assistance of counsel claims under the two-prong inquiry mandated by Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). ••• In applying the two-prong test for ineffective assistance of counsel claims, an appellate court reviews the lower court’s factual findings for clear error. ••• Whether counsel’s performance was deficient and whether that deficiency prejudiced the defendant are legal determinations that an appellate court resolves independently of the lower court’s decision. ••• An appellate court can assess the two prongs of the ineffective assistance of counsel test, deficient performance and prejudice, in either order. ••• Counsel’s failure to raise an issue on appeal could only be ineffective assistance if there is a reasonable probability that inclusion of the issue would have changed the result of the appeal. ••• When a case presents layered ineffectiveness claims, an appellate court determines the prejudice prong of appellate counsel’s performance by focusing on whether trial counsel was ineffective under the test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

3. Conflict of Interest: Proof. In cases of a conflict which adversely affects a lawyer’s performance, there is no need to show that the conflict resulted in actual prejudice to the defendant, showing an actual conflict existed is sufficient.Proof. Under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the defendant has the burden to show that (1) counsel performed deficiently—that is, counsel did not perform at least as well as a criminal lawyer with ordinary training and skill in the area, and (2) this deficient performance actually prejudiced the defendant in making his or her defense. ••• The prejudice prong of the ineffective assistance of counsel test requires that the defendant show a reasonable probability that but for counsel’s deficient performance, the result of the proceeding in question would have been different.

4. Words and Phrases. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Judgments:

1. Appeal and Error. When reviewing a question of law, an appellate court resolves the question independently of the lower court’s conclusion.

Constitutional Law:

1. Right to Counsel: Conflict of Interest. A conflict of interest which adversely affects a lawyer’s performance violates the client’s Sixth Amendment right to effective assistance of counsel.

Attorney and Client:

1. Conflict of Interest: Words and Phrases. The term “actual conflict” encompasses any situation in which a defense attorney faces divided loyalties such that regard for one duty tends to lead to disregard of another.

Trial:

1. Effectiveness of Counsel:

a. Appeal and Error. If trial counsel was ineffective, then the defendant suffered prejudice when appellate counsel failed to bring such a claim. An appellate court must then consider whether the appellate counsel’s failure to bring the claim qualifies as a deficient performance under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

b. Presumptions. In assessing trial counsel’s performance under the two-prong test in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), there is a strong presumption that trial counsel acted reasonably.

2. Attorneys at Law. Trial counsel is afforded due deference to formulate trial strategy and tactics.

a. Effectiveness of Counsel: Appeal and Error. When reviewing an ineffective assistance of counsel claim, an appellate court will not second-guess reasonable strategic decisions made by counsel.

3. Evidence. Favorable evidence is material if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. ••• A reasonable probability of a different result is shown when the State’s evidentiary suppression undermines confidence in the outcome of the trial.

Evidence:

1. Prosecuting Attorneys. Prosecutors have a duty to present material exculpatory evidence even if defense counsel never requests the evidence.

2. Words and Phrases. Evidence is relevant if it tends in any degree to alter the probability of a material fact. ••• Relevancy requires only that the degree of probativeness be something more than nothing.

Due Process:

1. Evidence: Prosecuting Attorneys. In the context of prosecutorial withholding of evidence, Nebraska law defines materiality more broadly than due process requirements and applies to evidence which strongly indicates it would play an important role in preparing a defense.

Pretrial Procedure:

1. Appeal and Error. The trial court has broad discretion in granting discovery requests and errs only when it abuses its discretion.

Date Filed and Case No.: April 18, 2008. No. S-06-1041.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/april/apr18/s06-1041.pdf

Court Appealed From: District Court for Douglas County: J. Michael Coffey, Judge. Attorneys for the Appeal: Paula B. Hutchinson for Michael T. Jackson, appellant. Jon Bruning and James D. Smith for State of Nebraska, appellee.

Justices: Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, J.J.

Not Participating: Heavican, C.J.

Authored By: Connolly, J.

Summary: On February 4, 1996, Michael T. Jackson met with Dionne Brewer and Jason Thornton to buy cocaine. They planned to travel from Omaha to Minneapolis to make the buy. Brewer and Thornton wanted to fly, but Jackson wanted to drive because he was concerned about flying with $11,500 in cash. Brewer and Thornton agreed and agreed to Jackson’s suggestion and Jackson had them drive to a car that he had rented. Jackson directed Thornton to the location and after they arrived at the location, Thornton stopped near a car and as he opened the driver’s-side door to get out, Brewer saw Jackson shoot Thornton from behind. Brewer leapt out of the vehicle and began running down the street. Jackson got out of the vehicle and shot Brewer. As she lay in the street, Jackson shot her several times in the head and torso. A woman who lived on the street where the shootings occurred, heard the initial gunfire, rushed to her kitchen window and observed Jackson shoot Brewer. Brewer managed to survive by playing dead. Brewer’s statements led officers to the location Brewer provided, while others went to the home of Jackson’s former girlfriend, Demeteria Gardner, now known as Demeteria Miller (Miller). Miller gave officers consent to search her vehicle, which Jackson had borrowed earlier that day. In the vehicle, police found a duffelbag containing clothes matching the description of the clothing worn by the killer. The clothing also contained red stains from Thornton’s blood.

Officers then obtained a warrant and entered Jackson’s home, where they found Jackson. Police seized several items in the house, including two .38-caliber bullets, a gun case, and a knit cap matching the description of a cap worn by the shooter.

Michael J. Poepsel represented Jackson at trial moving in limine to suppress (1) physical evidence that officers recovered from Jackson’s home and Miller’s car, (2) statements that Jackson made to police, and (3) DNA evidence. The court overruled the motion regarding the physical and DNA evidence. The prosecution, however, agreed not to introduce Jackson’s statements at trial. Several doctors and technicians testified that the bloodstains on the clothing found in the vehicle came from Thornton. After the prosecution rested, Poepsel moved to dismiss because the State had failed to prove premeditation. The court overruled the motion. Poepsel then rested without presenting any evidence. The jury found Jackson guilty on all counts.

On appeal, James C. Hart, Jr., represented Jackson. Hart did not argue ineffective assistance of trial counsel in his direct appeal. Instead, Hart argued that the district court erred in admitting certain items of evidence and overruling Jackson’s motions to dismiss and for a new trial. The Nebraska Supreme Court rejected these claims and upheld Jackson’s convictions in State v. Jackson, 255 Neb. 68, 582 N.W.2d 317 (1998).

Following his unsuccessful appeal, Jackson filed a postconviction motion. In his motion, Jackson alleged: (1) ineffective assistance of trial counsel, (2) ineffective assistance of appellate counsel, and (3) prosecutorial misconduct because the prosecution failed to provide potentially exculpatory evidence. Following a hearing, the district court denied Jackson’s motion. In an initial appeal, the Nebraska Supreme Court remanded with instructions that the district court enter a formal order with factual findings. In response, the district court entered an order in which it made numerous factual findings and conclusions of law. Notably, the court credited Poepsel’s and Hart’s testimony over the testimony of Jackson, Jackson’s mother, and another witness. Jackson appealed.

Did the district court err in failing to find that Jackson received ineffective assistance of trial counsel? Regarding this assignment, Jackson argued that trial counsel failed to present certain testimony, refute and undermine other testimony, undermine the State’s use of evidence and subject the State’s case to meaningful adversarial testing.

Here, a different attorney, Hart, represented Jackson on his direct appeal and did not allege ineffective assistance of counsel as part of his direct appeal. All of Jackson’s allegations regarding trial counsel’s deficient performance would either have been apparent to Jackson at the time of appeal or would have been apparent from the record. As such, the Court found Jackson is prohibited from claiming that he received ineffective assistance of trial counsel in his postconviction motion under the procedural default rule.

Did the district court err in failing to find that Jackson received ineffective assistance of appellate counsel because Hart and Poepsel had a close relationship? Regarding Jackson’s argument that he received ineffective assistance from his appellate counsel, Hart, specifically, he claimed that Hart failed to argue that his trial attorney, Poepsel, provided ineffective assistance because of a close personal relationship with Poepsel. The district court found no conflict of interest. It specifically found that Jackson was not credible in testifying that Hart adjusted his appeal strategy based on his alleged relationship with Poepsel. The court determined that no friendship or personal relationship existed between the two attorneys. The Supreme Court said that Jackson failed to point to evidence which might show that Poepsel and Hart had a personal relationship and would not disturb the district court’s conclusions unless they were clearly erroneous. Jackson failed to show that the district court erred in concluding that Poepsel and Hart had no personal relationship.

Did Jackson receive ineffective assistance of counsel on direct appeal because Hart failed to assign and argue that Jackson received ineffective assistance of counsel at trial? Jackson’s postconviction motion was his first opportunity to raise this claim, so it was not procedurally barred. The prejudice prong of the Strickland v. Washington standard, requires that Jackson show a reasonable probability that but for counsel’s deficient performance, the result of the proceeding in question would have been different. With a subtle twist, the Court pointed out that if trial counsel was ineffective, then the defendant suffered prejudice when appellate counsel failed to bring such a claim. Reviewing all of the issues which Jackson raised regarding his claim that trial counsel was ineffective, the Court found that Poepsel was not ineffective. Because they concluded Poepsel was not ineffective, Hart was not ineffective for failing to raise those issues in the direct appeal.

Was Jackson entitled to a new trial because the prosecution failed to disclose potentially exculpatory evidence? Specifically, Jackson pointed to four police reports in which several members of a drug conspiracy indicated that Donald Hughes, the conspiracy’s ringleader, wanted Thornton killed. Thornton apparently owed a large debt to Hughes, and as a result, Hughes ordered Thornton’s murder. Jackson argues that the prosecution’s failure to disclose these reports violated his right to exculpatory evidence under the Due Process Clause and Nebraska statutory law.

Regarding the Due Process analysis, Poepsel testified that he did not see these reports before trial. The reports contain statements indicating that Jackson was one of several individuals who bought and sold drugs from a kingpin named “Hughes.” They indicate that Hughes called a man named “Mike” and ordered him to “ ‘take care of that business,’” referring to Thornton, and that Thornton was shot and killed a day later. The only other individual named “Michael” in Hughes’ circle of drug dealers was incarcerated Although Jackson claims that these reports open up the possibility that another individual named “Mike” was hired to kill Thornton, he ignores that the reports strongly suggest that Hughes hired Jackson to kill Thornton. As such, the Court said that the reports not only fail to exculpate him, they provide the State with a motive.

Jackson also claimed that the prosecution’s failure to disclose the police reports violated his right to exculpatory evidence under Nebraska statutory law, Neb. Rev. Stat. § 29-1912 (Reissue 1995). The Court said that the standard under § 29-1912 for exculpatory evidence is slightly different from the due process standard announced in Bagley. Both standards require a showing that the nondisclosure prejudiced the defendant by preventing him or her from acquiring material evidence. Nebraska law, however, defines materiality more broadly to apply to evidence which strongly indicates it would play an important role in preparing a defense. The Court said it was plausible that having the police reports at trial might have prompted Jackson to request production of any telephone numbers or other evidence the police obtained from their search of Hughes’ jail cell. Yet, Jackson had not shown that the police recovered any such evidence from Hughes’ cell. So while disclosure of the police reports may have piqued Jackson’s interest in any evidence found in Hughes’ cell, at present, the record failed to show that officers did, in fact, find anything useful to Jackson’s case. “So Jackson has failed to carry his burden to show that the State withheld any material exculpatory evidence.”

Did the postconviction court err in denying Jackson’s request that the State be compelled to produce (1) evidence the police might have found in the search of Hughes’ jail cell and (2) records of Hughes’ telephone calls and visitors while he was in the Douglas County Correctional Center? Jackson believes that this information may uncover evidence that Hughes called or was visited by the individual whom he hired to kill Thornton. If true, Jackson believes that such information might strengthen his claim of prosecutorial misconduct and ultimately lead to a new trial. The State objected to Jackson’s request on relevancy grounds, and the court overruled Jackson’s motion. The Supreme Court believed the information Jackson sought to discover is relevant. Evidence that Hughes may have been in contact with other individuals before Thornton was shot directly relates to the identity of the person he apparently hired to kill Thornton. Obviously, this is a material fact. Evidence that Hughes contacted other individuals makes it slightly more probable that one of those individuals was the shooter. More important, such evidence may well lead to other, more probative evidence. As such, this evidence is relevant.

Here, the Court found that a question does exist as to whether Jackson can request this evidence. In State v. Thomas, 236 Neb. 553, 462 N.W.2d 862 (1990) the Court questioned whether a defendant could request discovery in a postconviction motion. The Nebraska Postconviction Act looks unfavorably on any attempts to rehash issues at the postconviction stage which were—or could have been—raised and disposed of at trial or on direct appeal. Thus, prisoners cannot seek discovery at the postconviction stage if the requested evidence could have been obtained at trial. But when a postconviction discovery request is for evidence that the defendant would not have known to request until after the trial, the postconviction stage is the prisoner’s first opportunity to make such a request. The Court suggested that perhaps there should be a limited exception to Thomas for discovery requests concerning evidence which the prosecution withheld from the defendant at trial when there is a reasonable possibility that the requested evidence, if it exists, could have resulted in a different outcome at trial.

Nevertheless, the Court found that the district court properly overruled Jackson’s discovery request even assuming such an exception to Thomas. The best that Jackson could hope for with his discovery request is evidence that Hughes had information for a different “Mike” who was known to do contract killings for Hughes. But even in this best-case scenario, such evidence would not be able to overcome the direct proof—DNA evidence and eyewitness testimony—linking Jackson to these crimes. As such, the Court found that Jackson’s prosecutorial misconduct claim would not have undermined confidence in the outcome even if he obtained the evidence he sought from the prosecution. “Therefore, while we might allow an exception to Thomas in the future, this is not the case.”

Conclusion: For the above reasons, the Nebraska Supreme Court affirmed the actions of the post conviction court. AFFIRMED.

Post Conviction, Ineffective Assistance of Trial Counsel, Appeal and Error

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State v. Jackson, 275 Neb. 434 (2008)

Supreme Court Headnotes

Postconviction:

1. Whether a claim raised in a postconviction proceeding is proce-durally barred is a question of law.

5. Evidence. Prisoners cannot seek discovery at the postconviction stage if the requested evidence could have been obtained at trial.

Effectiveness of Counsel.

1. A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact.

4. Words and Phrases. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Judgments:

1. Appeal and Error. When reviewing a question of law, an appellate court resolves the question independently of the lower court’s conclusion.

Constitutional Law:

Attorney and Client:

Trial:

1. Effectiveness of Counsel:

2. Attorneys at Law. Trial counsel is afforded due deference to formulate trial strategy and tactics.

a. Effectiveness of Counsel: Appeal and Error. When reviewing an ineffective assistance of counsel claim, an appellate court will not second-guess reasonable strategic decisions made by counsel.

Evidence:

1. Prosecuting Attorneys. Prosecutors have a duty to present material exculpatory evidence even if defense counsel never requests the evidence.

Due Process:

Pretrial Procedure:

1. Appeal and Error. The trial court has broad discretion in granting discovery requests and errs only when it abuses its discretion.

Date Filed and Case No.: April 18, 2008. No. S-06-1041.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/april/apr18/s06-1041.pdf

Justices: Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, J.J.

Not Participating: Heavican, C.J.

Authored By: Connolly, J.

Conclusion: For the above reasons, the Nebraska Supreme Court affirmed the actions of the post conviction court. AFFIRMED.

Post Conviction, Procedural Bar, Direct Appeal

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State v. Jackson, 275 Neb. 434 (2008)

Supreme Court Headnotes

Postconviction:

1. Whether a claim raised in a postconviction proceeding is proce-durally barred is a question of law.

5. Evidence. Prisoners cannot seek discovery at the postconviction stage if the requested evidence could have been obtained at trial.

Effectiveness of Counsel.

1. A claim that defense counsel provided ineffective assistance presents a mixed question of law and fact.

4. Words and Phrases. A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Judgments:

1. Appeal and Error. When reviewing a question of law, an appellate court resolves the question independently of the lower court’s conclusion.

Constitutional Law:

Attorney and Client:

Trial:

1. Effectiveness of Counsel:

2. Attorneys at Law. Trial counsel is afforded due deference to formulate trial strategy and tactics.

a. Effectiveness of Counsel: Appeal and Error. When reviewing an ineffective assistance of counsel claim, an appellate court will not second-guess reasonable strategic decisions made by counsel.

Evidence:

1. Prosecuting Attorneys. Prosecutors have a duty to present material exculpatory evidence even if defense counsel never requests the evidence.

Due Process:

Pretrial Procedure:

1. Appeal and Error. The trial court has broad discretion in granting discovery requests and errs only when it abuses its discretion.

Date Filed and Case No.: April 18, 2008. No. S-06-1041.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/april/apr18/s06-1041.pdf

Justices: Wright, Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, J.J.

Not Participating: Heavican, C.J.

Authored By: Connolly, J.

Conclusion: For the above reasons, the Nebraska Supreme Court affirmed the actions of the post conviction court. AFFIRMED.

Statutes, Consumer Protection Act

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Eicher v. Mid America Fin. Invest. Corr, 275 Neb. 462 (2008)

Supreme Court Headnotes

Trial:

1. Witnesses. In a bench trial of an action at law, the trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony.

Witnesses:

1. Evidence: Appeal and Error. An appellate court will not reevaluate the credibility of witnesses or reweigh testimony but will review the evidence for clear error.

Judgments:

Damages:

2. Proof. Nebraska law only requires a plaintiff to prove his or her damages to a reasonable certainty; it does not require proof beyond all reasonable doubt.

Property:

1. Valuation: Witnesses. A landowner is qualified to testify to the fair market value of his or her own property.

Courts:

1. Judgments: Time. A district court can modify a judgment or order issued in a prior term only if it has specific statutory authority to do so.

Statutes:

Consumer Protection.

1. The Consumer Protection Act only applies to unfair or deceptive practices which affect the public interest.

Actions:

2.&