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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 4, 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:

Attorney Discipline, Advancement of Money to Client
Attorney Discipline, Neglect of Client's Matters
Contracts, Attorney's Agreement, Public Policy
Earning Capacity, Move After Injury, "Hub" Community
Homicide, First-degree Murder, Sufficiency of Evidence
Judgments, Appeal and Error
Jurisdiction, Statutory Advice From Court
Motion in Limine, Appeal and Error, Proof
Withdrawal of Plea, Statutory Advice from Court, Deportation
Workers' Compensation, Default Judgment
Workers' Compensation, Earning Capacity, Location of Employee
Workers' Compensation, Notice of Default Judgment

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April 17, 2008 - NCLE Teleseminar: LLC Distributions and Liquidations
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April 23, 2008 - NCLE Teleseminar: Things Secured Parties Should Know, Do and Avoid When Foreclosing on Collateral, Part 2
April 24, 2008 - NCLE Teleseminar: Ethics for Supervisory and Subordinate Attorneys in Practice
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Case Summaries

Attorney Discipline, Advancement of Money to Client

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This attorney discipline case was the result of the attorney’s advancing money to his personal injury client for payment of transportation and vehicle expenses, health insurance premiums, rent and cabfare (so that the client could attend doctor’s appointments to receive medical treatment related to her injury.) While the disciplinary rules provide exceptions for the advancement of litigation expenses, such as court costs, they do not permit an attorney to make advances to his or her client for other acts and the attorney received a six month suspension.

State ex rel. Counsel for Dis. v. Kratina, 275 Neb. 401 (2008)

Supreme Court Headnotes

None

Date Filed and Case No.: April 4, 2008. No. S-07-578.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/april/apr4/s07-578.pdf

Court Appealed From: Original action.

Parties: State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court, relator. Mark D. Kratina, respondent.

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

Authored By: Per Curiam.

Summary: On May 25, 2007, formal charges were filed by the office of the Counsel for Discipline, relator, against Mark D. Kratina, respondent. The formal charges included allegations that Kratina violated the following provisions of the Code of Professional Responsibility: Canon 1, DR 1-102(A)(1) (violating disciplinary rule); DR 1-102(A)(5) (engaging in conduct prejudicial to administration of justice); and Canon 5, DR 5-103(B) (improperly advancing or guaranteeing financial assistance to client), as well as the following provisions of Neb. Ct. R. of Prof. Cond. (rev. 2005): rules 1.8(e) (providing financial assistance to client), 8.4(a) (violating disciplinary rule), and 8.4(d) (engaging in conduct prejudicial to administration of justice). The formal charges also alleged that Kratina violated his oath of office as an attorney, Neb. Rev. Stat. § 7-104 (Reissue 1997). Kratina’s answer in effect disputed certain of the allegations.

A referee was appointed who heard evidence. Kratina was admitted to the practice of law in the State of Nebraska in 1976 and practiced in Douglas County. He represented Patricia Hill in a trip-and-fall accident in June 2004 where Hill sustained a significant knee injury, and became unemployed. She remained unemployed for the entire time period relevant to the present disciplinary proceeding. During the pendency of Hill’s personal injury case, Kratina made certain payments to or on behalf of Hill, including sums to pay for transportation and vehicle expenses, health insurance premiums, and rent. With regard to the transportation and vehicle expenses, the referee specifically found that Kratina advanced sums to Hill to pay cabfare so that Hill could attend doctor’s appointments to receive medical treatment related to her injury, to pay certain fines so that Hill could have her driver’s license reinstated, to pay Hill’s motor vehicle registration and licensing, to pay for repairs to Hill’s vehicle, to pay for Hill’s loan payment on her car, and to pay to redeem Hill’s car from repossession. The referee found that the total amount Kratina advanced to Hill exceeded $11,000.

In December 2006, Kratina was able to successfully settle Hill’s personal injury case for the total amount of $125,000. Pursuant to his fee agreement with Hill, Kratina received as his fee one-third of the settlement proceeds, and he was also reimbursed for all costs and expenses he had paid to or on behalf of Hill during the pendency of the case.

In his report, the referee noted as mitigating factors Kratina’s cooperation during the disciplinary proceeding and the fact that Kratina was not motivated by self-interest or personal gain in making the advancements to Hill. The referee also noted that Hill suffered no direct harm or loss as a result of Kratina’s actions. The referee noted as aggravating factors two prior reprimands Kratina had received (a private reprimand for the mishandling of certain funds and a public reprimand as a result of an imbalance in his trust account due to mere negligence.)

No exceptions were filed to the referee’s report and Kratina filed a motion for judgment on the pleadings, in which Kratina moved this court to enter judgment in conformity with the referee’s report and recommendation.

Discipline Imposed. The Nebraska Supreme Court stated that Kratina is charged with advancing sums to his client for such things as transportation and vehicle expenses, insurance premiums, and rent. While the disciplinary rules provide exceptions for the advancement of litigation expenses, such as court costs, they concluded the rules do not permit an attorney to make advances to his or her client to pay for the transportation and vehicle-related expenses, health insurance premiums, and rent payments that were advanced in the instant case. Compare, Attorney Griev. Comm’n v. Eisenstein, 333 Md. 464, 635 A.2d 1327 (1994) (stating that rule 1.8(e) contains exceptions for court costs and litigation expense but not for humanitarian acts). Based upon the undisputed findings of fact in the referee’s report the Court concluded the formal charges are supported by clear and convincing evidence, and the motion for judgment on the pleadings is granted. Upon due consideration of the record, the court found that Kratina should be and hereby is suspended from the practice of law for a period of 60 days, effective immediately. At the end of the 60-day suspension period, Kratina may apply to be reinstated to the practice of law, provided that Kratina has demonstrated his compliance with rule 16, and further provided that relator has not notified this court that Kratina has violated any disciplinary rule during his suspension.

Conclusion: JUDGMENT OF SUSPENSION.

Attorney Discipline, Neglect of Client's Matters

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In this attorney discipline proceeding, brought about by an attorney’s repeated neglect of neglect of clients’ matters while he was engaged in private the practice of law, the court weighs the violations with the mitigating factors and suspends the attorney from the practice of law for six months.

State ex. rel. Counsel for Dis. v. Wadman, 275 Neb. 357 (2008)

Supreme Court Headnotes

Disciplinary Proceedings.

1. A proceeding to discipline an attorney is a trial de novo on the record.Violation of a disciplinary rule concerning the practice of law is a ground for discipline. ••• The basic issues in a disciplinary proceeding against a lawyer are whether discipline should be imposed and, if so, the type of discipline appropriate under the circumstances. ••• Neb. Ct. R. of Discipline 4 (rev. 2004) provides that the following may be considered by the Nebraska Supreme Court as sanctions for attorney misconduct: (1) disbarment; (2) suspension for a fixed period of time; (3) probation in lieu of or subsequent to suspension, on such terms as the court may designate; (4) censure and reprimand; or (5) temporary suspension. ••• Each case justifying the discipline of an attorney must be evaluated individually in light of the particular facts and circumstances of that case. ••• To determine whether and to what extent discipline should be imposed in a lawyer discipline proceeding, the Nebraska Supreme Court considers the following factors: (1) the nature of the offense, (2) the need for deterring others, (3) the maintenance of the reputation of the bar as a whole, (4) the protection of the public, (5) the attitude of the offender generally, and (6) the offender’s present or future fitness to continue in the practice of law. ••• For purposes of determining the proper discipline of an attorney, the Nebraska Supreme Court considers the attorney’s acts both underlying the events of the case and throughout the proceeding. ••• The determination of an appropriate penalty to be imposed on an attorney requires consideration of any aggravating and mitigating factors. ••• Cumulative acts of attorney misconduct are distinguishable from isolated incidents, therefore justifying more serious sanctions.

2. Proof. To sustain a charge in a disciplinary proceeding against an attorney, a charge must be supported by clear and convincing evidence.

Date Filed and Case No.: April 4, 2008. No. S-06-1213.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/april/apr4/s06-1213.pdf

Court Appealed From: Original action.

Attorneys for the Appeal: John W. Steele for State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court, relator. No appearance for Brent R. Wadman, respondent.

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

Authored By: Per Curiam

Summary: On October 31, 2006, formal charges were filed by the office of the Counsel for Discipline, relator, against Brent R. Wadman, respondent. Additional formal charges were filed subsequently. A referee was appointed, a referee’s hearing was held.

The substance of the referee’s findings may be summarized as follows: Wadman was admitted to the practice of law in the State of Nebraska on April 23, 2001, and was engaged in the private practice of law from 2001 until early 2005. In early 2005, he closed his private practice and began working as in-house counsel to a Nebraska business, where he was still employed at the time of the referee’s hearing.

Wadman had been retained to represent Eloise Johnson in a personal injury case. Wadman filed suit on her behalf but did not respond to a motion for summary judgment filed by the defendant. He also did not attend the summary judgment hearing and summary judgment was granted in favor of the defendant and Johnson’s personal injury action was dismissed. Wadman claimed that he had moved offices and did not receive notice of a change in the date for the summary judgment hearing until after the hearing had been held and the motion had been granted. Wadman admitted that although he advised Johnson that the defendant had filed a motion for summary judgment, he did not tell her that the motion had been sustained or that her case had been dismissed.

With regard to the additional formal charges, Wadman had been retained to represent Thomas Smith-Perkins in a personal injury case. Although Wadman did engage in some initial investigatory work he did not take any other action with regard to the claim. The referee’s report summarized Wadman’s testimony that he did not feel competent to handle personal injury cases and that it was for that reason that he closed his private practice in 2005 and began working as in-house counsel to a business.

Although it was not specifically identified by the referee as an aggravating factor, the referee found that Wadman had been the subject of two prior disciplinary proceedings generally involving the neglect of three separate clients’ matters while he was engaged in private practice. Those proceedings resulted in Wadman’s receiving private reprimands. The referee also found certain mitigating factors, including Wadman’s cooperation with relator during the disciplinary proceedings, Wadman’s admission of many of the allegations contained within the formal charges and the additional formal charges, and Wadman’s acknowledging responsibility for his actions.

Based upon the evidence offered during the hearing, the referee found by clear and convincing evidence that Wadman’s actions constituted a violation of the following provisions of the Code of Professional Responsibility: DR 1-102(A)(1) and (5), DR 6-101(A)(3), and DR 7-102(A)(2). With respect to the discipline that ought to be imposed, the referee recommended that Wadman be publicly reprimanded. No objections were filed to the referee’s report and relator filed a motion for judgment on the pleadings. The Nebraska Supreme Court granted the motion in part, adopting the referee’s findings and setting for briefing and oral argument the issue of the appropriate discipline.

Discipline Entered. The Court found that the evidence in this case established that Wadman has neglected two clients’ legal matters, and this it is seriously concerned with Wadman’s repeated neglect of matters entrusted to him. In this connection, they took into consideration and found troubling, the facts that in addition to the present proceedings, Wadman has twice been previously privately reprimanded for his conduct with respect to three clients’ matters and that he effectively misrepresented to Johnson the status of her case. The Court noted the mitigating factors and that the evidence also establishes that Wadman is no longer engaged in the private practice of law.

Upon due consideration of the record, the Court found that Wadman should be and hereby is suspended from the practice of law for a period of 6 months, effective immediately. At the end of the 6-month suspension period, Wadman may apply to be reinstated to the practice of law, provided that Wadman has demonstrated his compliance with rule 16, and further provided that relator has not notified this court that Wadman has violated any disciplinary rule during his suspension.

Conclusion: Judgment of suspension.

Contracts, Attorney's Agreement, Public Policy

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In this dispute between a law firm and a lawyer who formerly worked for the firm, the Nebraska Supreme Court rules that an “attorney’s agreement” which stated “that if the attorney is retained by the firm’s client after he leaves the firm’s employment, all fees generated by such representation are payable to the firm and no portion of such fees are payable to the attorney” was contrary to public policy and unenforceable.

Law Offices of Ronald J. Palagi V. Howard, 275 Neb. 334 (2008)

Supreme Court Headnotes

Jurisdiction:

1. 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.

Judgments:

1. Time: Appeal and Error. If the amendment of a final judgment or decree for the purpose of correcting a clerical error either materially alters rights or obligations determined by the prior judgment or creates a right of appeal where one did not exist before, the time for appeal should be measured from the entry of the amended judgment. If, however, the amendment has neither of these results but, instead, makes changes in the prior judgment which have no adverse effect upon those rights or obligations or the parties’ right to appeal, the entry of the amended judgment will not postpone the time within which an appeal must be taken from the original decree.

2. 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. ••• When reviewing the sufficiency of the evidence to sustain a judgment, appellate courts are mindful that every controverted fact must be resolved in favor of the successful party, and such party is entitled to the benefit of every inference that can reasonably be deduced from the evidence.

Contracts:

1. Public Policy. The determination of whether a contract violates public policy presents a question of law.

Trial:

1. Evidence: Appeal and Error. A trial court has the discretion to determine the relevancy and admissibility of evidence, and such determinations will not be disturbed on appeal unless they constitute an abuse of that discretion.

Employer and Employee:

1. Employment Contracts: Wages: Words and Phrases. A bonus can qualify as wages under the Nebraska Wage Payment and Collection Act if the employer and employee agreed to it in advance.

Appeal and Error.

1. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.

Date Filed and Case No.: April 4, 2008. Nos. S-06-384, S-06-664, S-07-757.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/april/apr4/s06-384.pdf

Courts Appealed From: District Court for Douglas County: Gerald E. Moran, Judge and District Court for Buffalo County: John P. Icenogle, Judge.

Attorneys for the Appeal: Michael F. Coyle, David J. Stubstad, and Sherman P. Willis, of Fraser Stryker, PC, L.L.O., for Steven H. Howard, appellant and cross-appellee. Joseph B. Muller, Thomas F. Hoarty, Jr. and Jeffrey Jacobsen for Law Offices of Ronald J. Palagi, P.C., L.L.O., appellee and cross-appellant.

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

Authored By: Stephan, J.

Summary: These consolidated appeals relate to a dispute between The Law Offices of Ronald J. Palagi, PC, L.L.O. (Law Offices), and attorney Steven H. Howard, a former employee of the firm. The dispute involves entitlement to attorney fees in two cases which were pending at the time Howard left his employment with Law Offices in 2003.

Case No. S-07-757.

In September 1991, Howard began working at Law Offices as an independent contractor. In 1993, Howard and Law Offices entered into an "Attorney’s Agreement” which established the terms and conditions of their business relationship. In 1997, the parties orally agreed to a change in the manner in which Howard was to be compensated, but disputed the terms of the change.

Rosa Jurado, the special administrator of the estate of her late husband who had been killed in a grain elevator accident, hired Law Offices to file a wrongful death action. In 1999, the suit was filed in the district court for Buffalo County, naming Agri Co-op, the owner of the grain elevator, and Union Insurance Company, its workers’ compensation carrier, as defendants. Howard prepared the case for trial (with the assistance of Palagi and other Law Offices personnel) and Law Offices advanced almost $122,000 in litigation expenses. In the summer of 2002, just prior to the scheduled trial of the Jurado case, Howard and Palagi again discussed and renegotiated Howard’s compensation. On September 16, 2002, the jury returned a verdict in the amount of $2,125,000 in favor of Jurado, which was appealed by defendants. That December, Howard visited Jurado, spoke with her about a settlement offer which he recommended that she reject and mentioned that he was thinking of leaving Law Offices. When Howard left the Law Offices, Jurado retained him to continue representing her and terminated her relationship with Law Offices.

When a settlement was reached in the Jurado case, Agri Co-op paid a total of $1,950,000, which was deposited in estate proceedings initiated by Jurado. As a result of the settlement, Howard filed a satisfaction of judgment on behalf of Jurado. Both Law Offices and Howard filed notices of attorney liens and requested that the district court for Buffalo County resolve their competing claims. As to the competing attorney liens, the court determined that an offer to settle for $500,000 was pending at the time Jurado terminated her relationship with Law Offices and retained Howard. Reasoning that the contingent fee agreement between Law Offices and Jurado entitled Law Offices to one-third of any settlement agreement pending at the time of termination, the court awarded Law Offices $166,667 of the $780,000 and awarded Howard the remaining $613,333. Law Offices appealed, and in a memorandum opinion the Nebraska Supreme Court reversed, and remanded “for an allocation of attorney fees based on a determination of the reasonable value of the services performed by Law Offices up to February 19, 2003, and Howard thereafter.”

Following the remand, the district court conducted an evidentiary hearing and determined that Law Offices was entitled to $746,250 plus interest and that Howard was entitled to $33,750 plus interest. Howard appealed and the Nebraska Supreme Court moved the case to their docket.

Case No. S-06-664.

The other action on appeal stemmed from Law Offices’ action against Howard in the district court for Douglas County, alleging a breach of the 1993 Attorney’s Agreement and tortious interference with a business relationship. Law Offices alleged that certain oral modifications of the Attorney’s Agreement occurred in 1997 and based on an alleged breach of the Attorney’s Agreement as modified and other theories of recovery, Law Offices sought the full $780,000 fee in the Jurado case, as well as other relief. Howard denied liability and alleged counterclaims in which he sought 25 percent of the fees in Jurado and other cases (the Christiansen cases) received by Law Offices, and additional relief pursuant to the Nebraska Wage Payment and Collection Act (NWPCA).

The case was tried to a jury, which returned a verdict awarding Law Offices $585,000 of the $780,000 fee in the Jurado case and awarding Howard the remaining $195,000. The jury also awarded Howard $16,625, an amount equal to 25 percent of the fee in the Christiansen case. The court sustained Howard’s NWPCA motion for costs and attorney fees on his claim for a portion of the fee in the Christiansen case, awarding him $4,156.25 in attorney fees plus taxable costs, but it denied his NWPCA motion as to the fee in the Jurado case, reasoning that because Law Offices had never been in possession of the fee, it could not have withheld payment from Howard. Howard appealed, Law Offices cross-appealed and the Court moved the case to its docket on their own motion.

Case No. S-06-384.

Before the trial of the case resulting in No. S-06-664, Law Offices filed a second action in the district court for Douglas County against Howard, alleging a breach of the Attorney’s Agreement. Howard filed a motion to dismiss, alleging that the complaint “sought to enforce provisions of the same” employment contract at issue in the pending case. The district court granted the motion to dismiss. Law Offices appealed from the order of dismissal, and the Supreme Court moved the appeal to their docket.

Did the Howard timely file his appeal in Case No. S-07-757? Law Offices argued that the appeal was not timely perfected. The Court said that the jurisdictional issue turned on whether Howard’s April 25, 2007, motion to alter or amend the judgment, was timely and therefore effective to terminate the time for appeal until it was ruled upon. Law Offices contended Howard’s motion was not filed within 10 days of the district court’s order of April 13, 2007, so it did not terminate the 30-day time to appeal. Howard argued his motion to alter or amend the judgment was filed within 10 days of the district court’s April 19 order modifying the April 13 order, it was timely and terminated the running of appeal time until the motion was overruled on June 13, 2007.

The Court reasoned that if the April 19 order materially altered rights or obligations existing under the April 13 order, or created a right of appeal where one did not exist before, the filing of the motion to alter or amend on April 25 was timely. But if the April 19 order had no adverse effect on the rights or obligations of the parties under the April 13 order or the parties’ right to appeal, the filing of the motion to alter or amend was not timely and did not terminate the running of the time for appeal. The Court found that the April 19, 2007, order amended the April 13 order in two respects, neither of which had any adverse effect on the rights or obligations of the parties under the April 13 order, nor did either change create a right to appeal where none had existed. Because Howard’s motion was untimely, it did not terminate the running of the time to appeal the April 13 order, and that time had expired before he filed his notice of appeal. Therefore, the Court concluded that they had no appellate jurisdiction over and dismissed the appeal docketed as case No. S-07-757.

Was the "Attorney’s Agreement” in the Jurado case enforceable? Law Offices’ claim to the entire fee in the Jurado case is based upon the provision of the 1993 Attorney’s Agreement which states that if Howard is retained by a Law Offices’ client after he leaves the firm’s employment, all fees generated by such representation are payable to Law Offices and no portion of such fees are payable to Howard. Howard alleged that the Attorney’s Agreement was not enforceable with respect to his representation of Jurado after leaving the employment of Law Offices because the agreement constituted a restrictive covenant which is overly broad and injurious to the public. Looking to the Code of Professional Responsibility, Canon 2, the Nebraska Rules of Professional Conduct, Rule 5.6 and case law thereon, the Court found that cases almost uniformly hold that financial disincentive provisions in attorney agreements are unenforceable as against public policy. The Court agreed with the reasoning of these cases and found it applicable to this case. “While the restrictive language in paragraph 12 of the Attorney’s Agreement does not directly restrict a departing lawyer from practicing in competition with the firm, it provides a strong financial disincentive for that lawyer to perform services for a former client, and accordingly, it restricts the client’s right to retain the lawyer” they wrote. “We conclude that the restriction is contrary to public policy and unenforceable. Accordingly, we reverse and vacate the judgment in favor of Law Offices and against Howard.”

Did the district court err in submitting Howard’s counterclaims to the jury? Law Offices argued that there was insufficient evidence to support Howard’s claimed entitlement to 25 percent of the fees in the Jurado and Christiansen cases. When reviewing the sufficiency of the evidence to sustain a judgment, the Court was mindful that every controverted fact must be resolved in favor of the successful party, and such party is entitled to the benefit of every inference that can reasonably be deduced from the evidence. As the parties gave disputing testimony regarding oral modification to the attorney agreement the Court concluded that it was sufficient to warrant submission of Howard’s counterclaims based upon breach of an oral agreement.

An error in the amount awarded. The Court noted one error with respect to the amount awarded to Howard on his counterclaim with respect to the fee in the Jurado case. The $195,000 award represents 25 percent of the total fee of $780,000. But, as subsequently determined by the district court for Buffalo County, Law Offices was entitled to $746,250 of the fee in the Jurado case and Howard was entitled to the remainder. Thus, the award of 25 percent of the entire fee to Howard would result, at least to some degree, in an impermissible double recovery. Accordingly, the Court modified the judgment in favor of Howard on the fee in the Jurado case by reducing it from $195,000 to $186,562.50 (25 percent of that fee awarded to Law Offices by the district court for Buffalo County.)

Did the district court err in failing to find that the jury’s award to Howard of 25 percent of the fee in the Jurado case was an award of “wages” under the NWPCA and therefore Howard should have been awarded costs and attorney fees on the claim? The district court refused to award attorney fees on the amount the jury awarded Howard as his share of the fee in the Jurado case, reasoning that this amount did not qualify as “wages” under the NWPCA. Howard argued on appeal that the jury award of the fee in the Jurado case meets the definition of wages under the statute because it was a bonus agreed to by the parties for which all conditions were met. As the Court viewed the record, Howard had no viable claim to a portion of the fee in the Jurado case until it was received by Law Offices, which had not yet occurred because both parties agreed that it would be held in the Phelps County Court pending resolution of their litigation. Therefore, the Court found that the district court did not err in denying Howard’s NWPCA claims with respect to the fee in the Jurado case.

Did the district court err in directing a verdict against Law Offices on its claim that Howard breached a fiduciary duty by communicating with Jurado regarding his decision to leave the firm while still employed by Law Offices? In sustaining Howard’s motion, the district court noted that there was no evidence that Howard’s conduct was the proximate cause of any damage to Law Offices. Law Offices argued that Howard’s communication with Jurado in his own behalf while still an employee of Law Offices warrants “two possible remedies: disgorgement of any amounts awarded to Howard from the Jurado case, or reimbursement to the firm of the $247,852.00 that is specifically related to the provisions of the [Attorney’s] Agreement relating to post-termination legal fees.” While Law Offices cited a Utah case for support, the Court did not read the case to support Law Offices’ apparent contention that causation is not an element of a claim based upon an alleged breach of a fiduciary duty. Here, Howard has not retained fees from his representation of Jurado, and he will receive only those portions of the total fee specifically awarded to him in this case and the action in the district court for Buffalo County. As a result they concluded on the basis of this record that the district court did not err in granting Howard’s motion for directed verdict with respect to Law Offices’ claim of breach of fiduciary duty.

Did the district court err in its dismissal of the second action which Law Offices filed against Howard in the district court for Douglas County? Law Offices sought to enforce the provision of the Attorney’s Agreement which required Howard to assign fees received from former clients of the firm if he performed services for such clients, at their request, after he left the firm. The district court sustained Howard’s motion to dismiss, reasoning that the case involved the same parties and the same issues presented in the previously filed action. Here, the Court once again pointed out that in this second action, Law Offices sought to enforce the same contractual restrictions on Howard’s right to retain fees after leaving the firm that were at issue in the previously filed action which was tried to conclusion. As they had found those restrictions to be contrary to public policy and unenforceable in Case No. S-06-664, they affirmed the order of dismissal in Case No. S.-06-384.

Conclusion: For the reasons discussed above, the appeal in case No. S-07-757 was dismissed for lack of appellate jurisdiction. Upon issuance of the mandate of the Nebraska Supreme Court, the final order of the district court will require the clerk of the Phelps County Court to disburse the $780,000 fee in the Jurado case which has been held in an interest-bearing account pursuant to the stipulation of the parties. Of this amount, Law Offices will receive $746,250 plus 95.68 percent of the accrued interest, and Howard will receive $33,750 plus 4.32 percent of the accrued interest. In case No. S-06-664, the Court reversed and vacated the judgment in favor of Law Offices, based upon their determination that the contractual restrictions which it sought to place upon Howard’s practice of law after leaving the firm are contrary to public policy and unenforceable. As to Howard’s counterclaim seeking 25 percent of the fee in the Jurado case paid to Law Offices, the Court reduced the amount from $195,000 to $186,562.50 in order to prevent a double recovery and affirm as modified. As to Howard’s counterclaim seeking 25 percent of the fee in the Christiansen case paid to Law Offices, they affirmed the judgment of $16,625 and the award of $4,156.25 in costs and attorney fees under the NWPCA. Finally, in case No. S-06-384, the Court affirmed the judgment of dismissal entered by the district court. JUDGMENT IN NO. S-06-384 AFFIRMED. JUDGMENT IN NO. S-06-664 REVERSED AND VACATED IN PART, AND IN PART AFFIRMED AS MODIFIED. APPEAL IN NO. S-07-757 DISMISSED.

Earning Capacity, Move After Injury, "Hub" Community

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This case required that the Nebraska Supreme Court confront the question in a workers’ compensation case, of what market to use to measure an employee’s earning capacity when that employee, after suffering an injury while living and working in one community, relocates to a new community with fewer employment opportunities.

Giboo v. Certified Transmission Rebuilders, 275 Neb. 369 (2008)

Supreme Court Headnotes

Workers’ Compensation:

1. Under Nebraska law, the amount an employer must pay a disabled employee in workers’ compensation is based on that employee’s earning capacity. ••• The factors used to assess a disabled employee’s earning capacity include (1) eligibility to procure employment generally, (2) ability to hold a job obtained, (3) capacity to perform the tasks of the work, and (4) ability of the worker to earn wages in the employment in which he or she is engaged or for which he or she is fit. ••• The first step in identifying a labor market is to identify the hub from which the spokes of the reasonable geographic area radiate, whether it is from the place the injury occurred, the place the claimant resided at the time the injury occurred, or the place the claimant resides at the time of the workers’ compensation hearing. ••• When an employee injured in one community relocates to a new community, the new community will serve as the hub community from which to assess the claimant’s earning capacity, provided that the change of community was done in good faith and not for improper motives. ••• Once the hub community has been identified, a “labor market” includes not only that particular community, but also any communities within a reasonable geographic area around it. ••• Communities surrounding the claimant’s hub community should be considered part of the claimant’s labor market, but only to the extent that it would be reasonable for the claimant to seek work in that location. ••• Whether it is reasonable for a claimant to seek work in a particular community is determined by looking to the totality of the circumstances, with regard for such factors as (1) availability of transportation, (2) duration of the commute, (3) length of the workday the claimant is capable of working, (4) ability of the person to make the commute based on his or her physical condition, and (5) economic feasibility of a person in the claimant’s position working in that location. Regard might also be given to the more generalized inquiry of whether others who live in the claimant’s hub community regularly seek employment in the prospective area.

2. Appeal and Error. In determining whether to affirm, modify, reverse, or set aside the judgment of the three-judge panel of the Nebraska Workers’ Compensation Court, an appellate court reviews the findings of the single judge who conducted the original hearing. ••• Determinations by a trial judge of the Workers’ Compensation Court will not be disturbed on appeal unless they are contrary to law or depend on findings of fact which are clearly wrong in light of the evidence. ••• Regarding questions of law in workers’ compensation cases, an appellate court is obligated to make its own determination.

3. Proof. The claimant carries the burden to establish that the move was made in good faith and not for the purpose of exaggerating the extent of his or her difficulty finding suitable employment. ••• If the claimant cannot show a legitimate motive behind his or her postinjury relocation, the community where the claimant resided at the time the injury occurred will serve as the hub community.

4. Expert Witnesses. Court-appointed vocational rehabilitation experts will help courts identify vocational rehabilitation plans and apply the statutory factors used to assess disabled employees' earning capacities.

Expert Witnesses:

1. Presumptions: Proof. The opinion of the court-appointed expert is imbued with a rebuttable presumption of validity, and a party who disagrees with that opinion has the burden to show that it is inaccurate. ••• The rebuttable presumption in favor of the court-appointed expert’s opinion can be rebutted by a showing that his or her assessment was predicated on principles that are contrary to law. ••• A party can show that the opinion of the court-appointed expert is inaccurate by offering proof that the nonexistence of a fact presumed by the court-appointed expert is more probable than is its existence.

Date Filed and Case No.: April 4, 2008. No. S-07-139.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/april/apr4/s07-139.pdf

Court Appealed From: Workers’ Compensation Court.

Attorneys for the Appeal: James E. Harris and Britany S. Shotkoski for Donelle Giboo, appellant. Timothy E. Clarke and Amanda A. Dutton for Certified Transmission Rebuilders, appellee.

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

Authored By: Heavican , C. J.

Summary: On July 25, 2002, Donelle Giboo, a Certified Transmission Rebuilders (CTR) employee, slipped and fell while descending a flight of stairs at CTR's Omaha location. Giboo was 7 months’ pregnant at the time. The fall aggravated a preexisting injury to Giboo’s spine and ultimately required several surgeries to repair. Giboo filed this action against of CTR seeking medical expenses and future compensation.

At trial, Giboo and CTR agreed that David Utley, a vocational rehabilitation expert, would serve as the vocational rehabilitation counselor assigned to the case. Utley determined that Giboo had sustained a 25-percent loss of access to jobs in the Omaha and Council Bluffs, Iowa (Omaha/Council Bluffs), labor market and that for someone of Giboo’s training and experience, this resulted in a 35-percent reduction in earning capacity in the Omaha/Council Bluffs labor market.

On August 23, 2005, CTR filed a petition in the Nebraska Workers’ Compensation Court to modify Giboo’s prior award. Giboo and CTR agreed on most points, but disagreed on the extent of Giboo’s lost earning capacity in light of her disabilities. At this second trial, Giboo presented evidence that she had since moved from the Omaha area to Dunlap, Iowa, a small, rural community of approximately 600 residents some 50 miles east of Omaha. Giboo testified that she made the move to live with the father of her child, since he owned a home in Dunlap. Giboo also presented testimony from Paulette Freeman, another vocational rehabilitation expert. Freeman testified that in her opinion, Utley had underestimated Giboo’s loss of access to employment.

The court issued its order on February 10, 2006. In its order, the trial court discounted Freeman’s testimony and concluded that the statutory presumption in favor of Utley’s assessment, as the assessment of the court-appointed vocational expert, had not been overcome. The trial court adopted Utley’s assessment and concluded that Giboo suffered from a 35-percent loss of earning capacity.

Giboo petitioned for review by a three-judge panel of the Nebraska Workers’ Compensation Court which affirmed the lower court’s award by a vote of 2 to 1. Giboo appealed the panel’s decision affirming the trial court’s award and the Nebraska Supreme Court penned the opinion.

Did the trial court err in selecting the relevant labor market from which to assess Giboo’s earning capacity? The Court said that the factor assessing the ability to procure employment “in general” depends in part on the number and type of jobs available in a given market. Therefore, this factor might change depending on the location in question. Here, Giboo lived and worked in the Omaha area at the time she was injured, however, after giving birth to her son she began spending the majority of her time in Dunlap, where her child and the child’s father reside. Giboo formally moved to Dunlap in September 2005. Therefore, the Court confronted the question of what market to use to measure earning capacity when an employee, after suffering an injury while living and working in one community, relocates to a new community with fewer employment opportunities.

In its order, the trial court indicated this question had already been resolved by this court’s prior opinion in Harmon v. Irby Constr. Co., 258 Neb. 420, 604 N.W.2d 813 (1999). The Court said that the trial court’s reading stretches Harmon too far.

In Harmon, the Court held that an employee “cannot be required to move to find employment.” But that conclusion did not resolve the issue of where to measure earning capacity when an employee voluntarily relocates. The Court resolved that question by making two separate inquiries. In this case, the Court said the first inquiry should ask which community—Dunlap, Omaha/Council Bluffs, or both—should serve as the “hub” area from which to assess Giboo’s earning capacity. The second inquiry should address the other geographic areas that may be considered along with the hub community.

The “Hub” Community: In addressing the concept of the hub community as it relates to this case, the Court drew upon the parties’ arguments (the approaches used by courts in other jurisdictions.) Having surveyed the various approaches other jurisdictions use to identify the hub community the Court adopted the “better rule” as one which regards the employee’s new community as the hub community provided that the move was made for legitimate reasons. However, in adopting this approach, the Court said it did not believe it necessary for the claimant to justify his or her relocation with a purely economic motive. “Accordingly, we hold that when an employee injured in one community relocates to a new community, the new community will serve as the hub community from which to assess the claimant’s earning capacity, provided that the ‘change of community was done in good faith, and not for improper motives.’” If the claimant cannot show a legitimate motive behind his or her postinjury relocation, the community where the claimant resided at the time the injury occurred will serve as the hub community.

Here, the Court found that there is significant evidence in the record to support the belief that Giboo’s move was made in good faith and therefore that Dunlap should be the hub community from which to base an assessment of Giboo’s earning capacity. The Court acknowledged that the trial court’s order lacks a conclusive finding in this regard, nevertheless, they noted that the trial court never discredited Giboo’s testimony and CTR appeared to concede that Giboo’s move was made in good faith. The Court found it therefore unnecessary to remand for the trial court to conduct findings on the motives behind Giboo’s move. Accordingly, the Court concluded that Dunlap alone should serve as the hub community from which to assess Giboo’s earning capacity.

Impact of Employment Opportunities Around Hub Community. Having concluded that Dunlap is the hub community from which to assess Giboo’s earning capacity, the Court again turned to decisions from other jurisdictions. The Court held that communities surrounding the claimant’s hub community should be considered part of the claimant’s labor market, but only to the extent that it would be reasonable for the claimant to seek work in that location. This reasonableness determination should be based on the totality of the circumstances, with regard for such factors as (1) availability of transportation, (2) duration of the commute, (3) length of the workday the claimant is capable of working, (4) ability of the person to make the commute based on his or her physical condition, and (5) economic feasibility of a person in the claimant’s position working in that location. The Court added that regard might also be given to the more generalized inquiry of whether others who live in the claimant’s hub community regularly seek employment in the prospective area. Those factors should be used by courts—and the court-appointed vocational experts guiding them—when selecting the relevant areas to use in setting a claimant’s vocational rehabilitation plan and loss of earning capacity. The Court said that it is possible that the Omaha/Council Bluffs may be taken into account in assessing Giboo’s earning capacity. However, any consideration of Omaha/Council Bluffs would be based on its proximity to Dunlap—approximately 50 miles—not by virtue of the fact that Omaha/Council Bluffs was the community where Giboo lived and worked at the time of her vocational injury.

Did the trial court err in adopting the assessment of the court-appointed vocational expert? Here, the Court found that Dunlap was not referenced in the body of the report prepared by Utley, who only referenced Dunlap at the very beginning of his report. Statements in the report supported the belief that Utley considered only Omaha/Council Bluffs in conducting his assessment of Giboo’s earning capacity. “At a minimum, the repetitive use of ‘Omaha/Council Bluffs’ as the labor market indicates that Utley regarded Omaha/Council Bluffs as the primary community rather than Dunlap” said the Court. Utley’s approach to the labor market issue conflicted with the holding that Dunlap is the hub community. Utley should have used Dunlap as the hub community and only considered Omaha/Council Bluffs if doing so would be reasonable under the circumstantial factors set forth earlier in the opinion. “Because Utley apparently did not do either of these things, his assessment is predicated on principles which are contrary to law.”

Further, Utley’s failure to adjust his assessment of Giboo’s loss of access despite her 6-hour-workday limitation suggested that Utley did not believe that such a limitation would reduce her access to jobs. “But it simply cannot be true that a worker who is permanently limited to a maximum of 6 hours of work per day will have the same access to jobs as a worker with no such limitation” said the Court. They found that Utley’s assumption that a 6-hour-workday limitation would not affect Giboo’s access to jobs was not accurate. As a result, the numerical conclusions which depended upon that assumption must also be inaccurate under the principles outlined above.

Freeman, Giboo’s own vocational expert, testified in support of those points. While she did not prepare an earning capacity report of her own, Freeman indicated that such a report was not necessary for her to determine that Utley’s assessment was erroneous. The trial court discounted Freeman’s testimony based on the court’s erroneous belief that Freeman did not think employment opportunities in Omaha/Council Bluffs were relevant. The Court found this conclusion clearly erroneous.

Did the trial court violate Workers’ Comp. Ct. R. of Proc. 11A (2006) by failing to issue a “reasoned decision?” The Court said that although the trial court’s order was somewhat ambiguous at times, it nonetheless provided the basis for meaningful appellate review and found this assignment of error was without merit.

Conclusion: The Court concluded that Dunlap should serve as the hub community from which to assess Giboo’s earning capacity, premised upon evidence which tended to show that Giboo had a good-faith basis to move from Omaha to Dunlap, as well as CTR's concession that no contrary evidence exists regarding Giboo’s motive. However, the Court nonetheless found it necessary to reverse the order of the compensation court review panel with directions to remand the cause to the trial court to determine the exact value of Giboo’s earning capacity in light of her disability and new place of residence.

Because Utley did not regard Dunlap as the hub community and failed to adjust Giboo’s loss of access figure, his opinion is not entitled to any presumption of correctness on remand. Rather, the trial court’s assessment of Giboo’s earning capacity should be based on all the evidence in the record, as well as additional evidence offered by the parties and evidence presented by Freeman. Finally, the trial court is to rely on the totality of the circumstances when considering whether any communities around Dunlap should factor into the assessment of Giboo’s earning capacity. REVERSED AND REMANDED WITH DIRECTIONS.

Homicide, First-degree Murder, Sufficiency of Evidence

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In this homicide case . The court affirms a conviction for first-degree murder, use of a weapon to commit a felony and being a felony possession of a firearm. Where defendant claimed error by the district court in granting a motion in limine, defendant failed to make a record to show that the trial court erred. The sentence was however, modified . Taking away credit for time served from the first-degree murder conviction and giving that credit to the use of a weapon to commit a felony conviction.

State v. Sing, 275 Neb. 391 (2008)

Supreme Court Headnotes

Convictions:

1. Evidence: Appeal and Error. In reviewing a claim that the evidence was insufficient to support a criminal conviction, an appellate court does not resolve conflicts in the evidence, pass on the credibility of witnesses, or reweigh the evidence; such matters are for the finder of fact, and a conviction will be affirmed, in the absence of prejudicial error, if the evidence admitted at trial, viewed and construed most favorably to the State, is sufficient to support the conviction.

Homicide:

1. Intent: Words and Phrases. A person kills with premeditated malice if, before the act causing the death occurs, the person has formed the intent or determined to kill the victim without legal justification.

Criminal Law:

1. Evidence: Intent. When the sufficiency of the evidence as to criminal intent is questioned, independent evidence of specific intent is not required. Rather, the intent with which an act is committed is a mental process and may be inferred from the words and acts of the defendant and from the circumstances surrounding the incident.

2. Sentences. A sentencing judge must separately determine, state, and grant the amount of credit on the defendant’s sentence to which the defendant is entitled.

Trial:

1. Pleadings: Proof: Appeal and Error. In order to preserve any error before an appellate court, the party opposing a motion in limine which was granted must make an offer of proof outside the presence of the jury unless the evidence is apparent from the context in which the questions were asked.

Date Filed and Case No.: April 4, 2008. No. S-07-345.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/april/apr4/s07-345.pdf

Court Appealed From: District Court for Douglas County: Patricia A. Lamberty, Judge.

Attorneys for the Appeal: Thomas C. Riley, Mikki C. Jerabek, and Scott C. Sladek for Danny L. Sing, appellant. Jon Bruning and James D. Smith for State of Nebraska, appellee.

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

Authored By: Wright, J.

Summary: Danny L. Sing lived on South 9th Street in Omaha, Nebraska. A common driveway ran between Sing’s house and the house next door, in which Loc Nguyen and Johanna Nguyen resided. Edi Torres was a friend of Loc’s and often came to the Nguyens’ house to lift weights. On September 30, 2005, Loc, Johanna, and Torres were on the porch when Sing came over at about 1 a.m. Sing drank two or three beers in 15 to 30 minutes when a dispute between Sing and Loc occurredm at Loc’s suggestion, Sing left, and Loc secured the door to the porch.

A few minutes later, Loc saw Sing run up the steps to the porch. Sing tried to open the door, but it was locked. Sing had a small pistol in his left hand and a shotgun in his right hand pointed the pistol at Loc and Torres, and the muzzle of the pistol was touching the glass in the door. Torres told Sing not to point the gun at him or anyone else. Sing then pointed the pistol at Loc’s face and fired, but Loc dodged and the shot missed him. Torres told Loc to take Johanna inside the house, and Loc walked behind Johanna to protect her. Before Johanna got into the house, she heard a gunshot that was louder than the first. As Loc reached the doorway, he looked at Torres to tell him to come into the house. At that moment, a gun was fired and Loc saw Sing with both hands on the shotgun, which was pointed at Torres. Torres was knocked backward, and his chair flew against the wall. Loc saw Sing run away. Johanna called the 911 emergency dispatch service. When the police arrived, Loc directed them to Sing’s house. Torres died later that day from a gunshot wound to the head. The shot had been roughly parallel to the top of Torres’ head.

Sing was charged in an amended information with first degree murder, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a felon. A jury returned verdicts of guilty on all three charges. Sing was sentenced to life in prison for first degree murder and 5 to 10 years’ imprisonment for use of a weapon to commit a felony, to be served consecutively to the life sentence. He was sentenced to 5 to 10 years’ imprisonment for possession of a deadly weapon by a felon, to be served concurrently to the sentence for the weapons conviction. He was given credit for time served of 522 days against the sentence imposed for first degree murder. Sing appealed to the Nebraska Supreme Court.

Was the evidence sufficient to support the conviction for first degree murder? Sing argued that the State failed to prove that he killed Torres purposely and with deliberate and premeditated malice as the evidence never established such intent and that the record supports a finding that the death was the result of an accident. He also alleged that he had consumed an excessive amount of alcohol, was verbally threatened by Loc and Torres, and the shotgun discharged when he stumbled in his drunken state.

The Court noted that the jury was given a step instruction stating that Sing could be found guilty of first degree murder, second degree murder, or manslaughter, or found not guilty. It was also given an instruction defining intoxication as a defense. Although Sing argued that the facts support a manslaughter charge, the Court noted that the jury was given this option, but did not make that factual finding. The Court’s review of the record showed that the evidence was sufficient to demonstrate beyond a reasonable doubt that Sing intended to kill Torres. “Sing formulated the design to commit the act by going to his house and returning to the Nguyens’ house with two guns” they wrote. “It may be reasonably inferred from Sing’s actions and the circumstances surrounding the incident that he had the intent to kill Torres purposely and with deliberate and premeditated malice.”

While Sing argued that “the homicide was the result of an accident and [was] not committed purposely with deliberate and premeditated malice,” that the shooting was an accident the Court said that the record did not support this argument. There was no evidence that the shotgun was accidentally discharged or that Sing stumbled due to his intoxication.

Sing also argued that neither Loc nor Johanna witnessed Sing discharge the shotgun but the Court said that the record did not support this claim. Loc and Johanna testified that they saw Sing point the pistol and shoot in Loc’s direction. Immediately after hearing a second shot, Loc saw Sing with both hands on the shotgun, which was pointed at Torres. The evidence admitted at Sing’s trial was sufficient to support the murder conviction.

Did the district court err in sustaining the State’s motion in limine concerning Torres’ alleged affiliation with a street gang? Prior to trial, the State argued that Sing’s opinion concerning an alleged affiliation between Torres and a gang was speculation and was not relevant. Sing claimed that it was relevant to his state of mind and to explain why he feared Torres and Loc. Sing also claimed that gang members had attended gatherings at the Nguyens’ house. When the motion in limine was made, defense counsel indicated that Sing would testify at trial. The district court reserved final ruling on the receipt of gang evidence in relation to Sing’s state of mind. The court directed that witnesses were not to be asked whether they were members of a gang and that Torres was not to be identified as a gang member.

Here, there was no offer of proof made concerning any testimony related to alleged gang affiliation. There are only two references in the trial transcript that might be construed to relate to gang affiliation. While Sing argues that testimony about the gang affiliation of Torres and Loc was relevant to Sing’s state of mind, specifically his fear of Torres and Loc that Court found that this argument had no merit. Sing did not testify. Sing did not make an offer of proof concerning testimony about gang affiliation, which testimony he claimed should have been admitted. Because he did not make a record, there is nothing to support his claim that the district court wrongly sustained the motion in limine.

Was there , error in the sentencing? Sing was given credit for time served (522 days) against the sentence imposed on the first degree murder conviction and that Court found plain error in the allocation of credit for time served. When a defendant is sentenced to life imprisonment for first degree murder, the defendant is not entitled to credit for time served in custodial detention pending trial and sentence; however, when the defendant receives a sentence consecutive to the life sentence that has a maximum and minimum term, the defendant is entitled to receive credit for time served against the consecutive sentence. Here, Sing is entitled to receive credit for 522 days served, but the credit should be applied against the sentence for use of a weapon rather than against the sentence for first degree murder.

Conclusion: Court found that the evidence was sufficient to support the conviction for first degree murder, and the district court did not err in sustaining the State’s motion in limine concerning evidence of gang affiliation. Thus, Sing’s convictions were affirmed.

However, the sentencing order incorrectly granted Sing credit for time served against the life sentence and Court modified the sentence to apply credit for time served to the sentence for use of a weapon to commit a felony. In all other respects, the sentences were affirmed. AFFIRMED AS MODIFIED .

Judgments, Appeal and Error

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Law Offices of Ronald J. Palagi V. Howard, 275 Neb. 334 (2008)

Supreme Court Headnotes

Jurisdiction:

1. 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.

Judgments:

Contracts:

1. Public Policy. The determination of whether a contract violates public policy presents a question of law.

Trial:

Employer and Employee:

1. Employment Contracts: Wages: Words and Phrases. A bonus can qualify as wages under the Nebraska Wage Payment and Collection Act if the employer and employee agreed to it in advance.

Appeal and Error.

1. An appellate court is not obligated to engage in an analysis that is not necessary to adjudicate the case and controversy before it.

Date Filed and Case No.: April 4, 2008. Nos. S-06-384, S-06-664, S-07-757.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/april/apr4/s06-384.pdf

Courts Appealed From: District Court for Douglas County: Gerald E. Moran, Judge and District Court for Buffalo County: John P. Icenogle, Judge.

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

Authored By: Stephan, J.

Case No. S-07-757.

Case No. S-06-664.

Case No. S-06-384.

Jurisdiction, Statutory Advice From Court

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The Nebraska Supreme Court here addresses a case where a defendant wished to withdraw his guilty pleas because he was not advised under Neb. Rev. Stat. § 29-1819.02 that his plea might subject him to deportation. The Court finds that the statute does not provide a separate procedure to accomplish withdrawal of the plea after the defendant’s conviction has become final. Therefore, there was no jurisdiction to determine the matter.

State v. Rodriguez-Torres, 275 Neb. 363 (2008)

Supreme Court Headnotes

Jurisdiction:

1. Appeal and Error. A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law. ••• 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.

Judgments:

1. 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 determination made by the court below.

Statutes:

1. Appeal and Error. Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the determination made by the court below. ••• 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.

Date Filed and Case No.: April 4, 2008. No. S-06-1351.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/april/apr4/s06-1351.pdf

Court Appealed From: District Court for Douglas County: J. Patrick Mullen, Judge.

Attorneys for the Appeal: Michael D. Nelson and Cathy R. Saathoff for Daniel T. Rodriguez-Torres, appellant. Jon Bruning, James D. Smith, and, on brief, Susan J. Gustafson for State of Nebraska, appellee.

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

Authored By: McCormack, J.

Summary: Following a plea of guilty, Daniel T. Rodriguez-Torres was convicted in January 1997 of possession of a controlled substance, a Class IV felony and was sentenced to 2 years’ supervised probation. He was subsequently charged with possession of a controlled substance and violation of probation. Rodriguez-Torres pled guilty to violation of probation and was sentenced to 1 year’s imprisonment. He did not perfect a direct appeal of either conviction.

In July 2006, Rodriguez-Torres filed a motion to vacate judgment and allow for withdrawal of guilty pleas alleging that as a result of his guilty pleas in 1997 and 1999, he became deportable. Rodriguez-Torres alleged that he was not advised of the effect his guilty pleas would have on his immigration status and was, therefore, unable to enter a knowing, voluntary, and intelligent plea. Rodriguez-Torres further alleges that his attorney’s failure to advise him of the immigration consequences of his guilty pleas constituted ineffective assistance of counsel.

At the hearing before the district court on the motion, counsel for Rodriguez-Torres advised the court that the action was not one for postconviction relief. Instead, counsel characterized the action as “an action more in terms of equity and justice.” The motion was denied by the district court. Rodriguez-Torres appealed the district court’s decision, and the Nebraska Supreme Court moved the appeal to their docket.

Does the Court have jurisdiction over this matter? The Court said that Rodriguez-Torres’ motion to vacate judgment and allow for withdrawal of guilty pleas is premised on Neb. Rev. Stat. § 29-1819.02 which provides:

(1) Prior to acceptance of a plea of guilty or nolo con-tendere to any offense punishable as a crime under state law, except offenses designated as infractions under state law, the court shall administer the following advisement on the record to the defendant:

IF YOU ARE NOT A UNITED STATES CITIZEN, YOU ARE HEREBY ADVISED THAT CONVICTION OF THE OFFENSE FOR WHICH YOU HAVE BEEN CHARGED MAY HAVE THE CONSEQUENCES OF REMOVAL FROM THE UNITED STATES, OR DENIAL OF NATURALIZATION PURSUANT TO THE LAWS OF THE UNITED STATES.

* * * * *

(3) With respect to pleas accepted prior to July 20, 2002, it is not the intent of the Legislature that a court’s failure to provide the advisement required by subsection (1) of this section should require the vacation of judgment and withdrawal of the plea or constitute grounds for finding a prior conviction invalid. Nothing in this section, however, shall be deemed to inhibit a court, in the sound exercise of its discretion, from vacating a judgment and permitting a defendant to withdraw a plea.

The State asserted that although § 29-1819.02 gives the trial court some discretion to allow a defendant to withdraw a guilty plea, the statute does not provide a separate procedure to accomplish that after the defendant’s conviction has become final. The State further asserted that absent a statutorily authorized procedure allowing for the present action, the district court was without jurisdiction to address the merits of Rodriguez-Torres’ motion. The Nebraska Supreme Court agreed.

The Court looked to prior cases which dealt with similar statutes dealing with statutorily mandated advisements where it had determined that in the absence of a legislatively mandated procedure, there was no recourse procedure available to the prisoner. Here, Rodriguez-Torres failed to directly appeal his convictions or seek postconviction relief. Now, years after having served his sentence, Rodriguez-Torres now seeks to have his pleas withdrawn and convictions vacated. However, no legislatively authorized procedure exists which allows him to do so. “Absent such a legislative procedure, there is no present recourse for Rodriguez-Torres to withdraw his pleas and vacate the judgments years after having completed his sentences” said the Court. “We, therefore, determine that the district court did not have jurisdiction to address Rodriguez-Torres’ motion.”

Conclusion: For those reasons, the Court remanded this action to the district court with directions to dismiss Rodriguez-Torres’ motion to vacate judgment and allow for withdrawal of guilty pleas. REMANDED WITH DIRECTIONS.

Motion in Limine, Appeal and Error, Proof

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State v. Sing, 275 Neb. 391 (2008)

Supreme Court Headnotes

Convictions:

Homicide:

Criminal Law:

2. Sentences. A sentencing judge must separately determine, state, and grant the amount of credit on the defendant’s sentence to which the defendant is entitled.

Trial:

Date Filed and Case No.: April 4, 2008. No. S-07-345.

Internet Address: http://www.supremecourt.ne.gov/opinions/2008/april/apr4/s07-345.pdf

Court Appealed From: District Court for Douglas County: Patricia A. Lamberty, Judge.

Attorneys for the Appeal: Thomas C. Riley, Mikki C. Jerabek, and Scott C. Sladek for Danny L. Sing, appellant. Jon Bruning and James D. Smith for State of Nebraska, appellee.

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

Authored By: Wright, J.

Withdrawal of Plea, Statutory Advice From Court, Deportation

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State v. Rodriguez-Torres, 275 Neb. 363 (2008)

Supreme Court Headnotes

Jurisdiction:

Judgments:

Stat